<PAGE> 1
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JULY 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER: 0-12771
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-3630868
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
10260 CAMPUS POINT DRIVE
SAN DIEGO, CALIFORNIA 92121
(619) 546-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [ ]
As of August 31, 1997, the Registrant had 49,597,854 shares of Class A
common stock, $.01 par value per share, issued and outstanding, and 320,105
shares of Class B common stock, $.05 par value per share, issued and
outstanding.
<PAGE> 2
PART I
FINANCIAL INFORMATION
<PAGE> 3
Item 1. Financial Statements
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
Condensed Consolidated Statement of Income
(In thousands, except per-share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended Six months ended
----------------------------- -----------------------------
July 31, July 31, July 31, July 31,
1997 1996 1997 1996
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues $ 700,961 $ 600,596 $ 1,325,488 $ 1,117,517
----------- ----------- ----------- -----------
Costs and expenses:
Cost of revenues 614,282 521,018 1,161,585 974,138
Selling, general and
administrative expenses 54,497 49,733 99,920 90,350
Interest expense 1,308 1,368 2,853 2,432
Other (income) expense, net (4,046) 1,770 (5,563) 503
Minority interest in income
of consolidated subsidiary 1,607 -- 2,695 --
----------- ----------- ----------- -----------
667,648 573,889 1,261,490 1,067,423
----------- ----------- ----------- -----------
Income before income taxes 33,313 26,707 63,998 50,094
Provision for income taxes 14,990 11,626 28,799 21,916
----------- ----------- ----------- -----------
Net income $ 18,323 $ 15,081 $ 35,199 $ 28,178
=========== =========== =========== ===========
Earnings per share of
common stock and equivalents $ .34 $ .29 $ .66 $ .55
=========== =========== =========== ===========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE> 4
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
Condensed Consolidated Balance Sheet
(in thousands)
<TABLE>
<CAPTION>
July 31, 1997 January 31, 1997
------------- ----------------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 181,217 $ 45,279
Restricted cash 31,699 14,456
Receivables 542,434 567,634
Inventories 16,378 33,983
Prepaid expenses and other current assets 16,185 12,708
Deferred income taxes 49,375 37,155
----------- -----------
Total current assets 837,288 711,215
Property and equipment (less accumulated depreciation
of $130,759 and $130,488 at July 31, 1997 and
January 31, 1997, respectively) 90,442 89,027
Land and buildings (less accumulated depreciation of
$14,911 and $13,444 at July 31, 1997 and
January 31, 1997, respectively) 111,777 96,768
Intangible assets (less accumulated amortization of
$49,147 and $43,870 at July 31, 1997 and
January 31, 1997, respectively) 53,926 59,569
Other assets 54,507 55,883
----------- -----------
$ 1,147,940 $ 1,012,462
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities $ 309,492 $ 271,282
Accrued payroll and employee benefits 170,308 131,234
Income taxes payable 21,579 16,859
Notes payable and current portion of long-term liabilities 9,129 21,287
----------- -----------
Total current liabilities 510,508 440,662
----------- -----------
Long-term liabilities 51,526 44,341
----------- -----------
Minority interest in consolidated subsidiary 2,695
-----------
Stockholders' equity:
Common stock:
Class A, $.01 par value
Authorized: 100,000 shares
Issued and outstanding:
July 31, 1997 - 49,568 shares 496
January 31, 1997 - 48,013 shares 480
Class B, $.05 par value
Authorized: 5,000 shares
Issued and outstanding:
July 31, 1997 - 320 shares 16
January 31, 1997 - 326 shares 16
Additional paid-in capital 363,602 304,658
Retained earnings 228,558 232,562
Other stockholders' equity (9,461) (10,257)
----------- -----------
Total stockholders' equity 583,211 527,459
----------- -----------
$ 1,147,940 $ 1,012,462
=========== ===========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE> 5
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
Condensed Consolidated Statement of Cash Flows
(Unaudited, in thousands)
<TABLE>
<CAPTION>
Six months ended
-----------------------------
July 31, 1997 July 31, 1996
------------- -------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 35,199 $ 28,178
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization 22,518 18,263
Non-cash compensation 22,431 13,267
Minority interest in income of consolidated subsidiary 2,695
Net gain on sales of certain business assets (3,803)
Loss on disposal of property and equipment 340 485
Increase (decrease) in cash, excluding effects of acquisitions,
resulting from changes in:
Receivables 8,764 4,171
Inventories 3,355 1,063
Prepaid expenses and other current assets (3,716) (2,813)
Progress payments 5,041 4,758
Deferred income taxes (12,220) 360
Other assets (7,827) 327
Accounts payable and accrued liabilities 14,434 (12,278)
Accrued payroll and employee benefits 40,262 5,941
Income taxes payable 4,720 2,572
--------- ---------
132,193 64,294
--------- ---------
Cash flows from investing activities:
Expenditures for property and equipment (23,062) (19,761)
Expenditures for land and buildings (16,476) (3,676)
Acquisitions of certain business assets, net of cash (725) (18,459)
Proceeds from sales of certain business assets 47,030
Proceeds from disposal of property and equipment 3,829 137
Proceeds from sale of debt securities available for sale 7,576
--------- ---------
10,596 (34,183)
--------- ---------
Cash flows from financing activities:
Increase in notes payable and long-term liabilities 5,006 3,338
Reduction of notes payable and long-term liabilities (12,366) (1,132)
Income tax benefit from employee stock transactions 5,203 3,451
Sales of common stock 32,714 9,344
Repurchases of common stock (37,408) (28,458)
--------- ---------
(6,851) (13,457)
--------- ---------
Increase in cash and cash equivalents 135,938 16,654
Cash and cash equivalents at beginning of period 45,279 22,765
--------- ---------
Cash and cash equivalents at end of period $ 181,217 $ 39,419
========= =========
Supplemental schedule of non-cash investing and financing activities:
Repurchases of common stock upon exercise of stock options $ 13,951 $ 11,837
========= =========
Liabilities assumed or incurred in acquisitions of certain
business assets $ 18 $ 15,667
========= =========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE> 6
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
Notes to Condensed Consolidated Financial Statements
(Unaudited)
Note A - Basis of Presentation
The accompanying financial information has been prepared in accordance with the
instructions to Form 10-Q and therefore does not necessarily include all
information and footnotes necessary for a fair presentation of financial
position, results of operations and cash flows in conformity with generally
accepted accounting principles.
In the opinion of management, the unaudited financial information for the three
and six months ended July 31, 1997 and 1996 reflect all adjustments (which
include only normal, recurring adjustments) necessary for a fair presentation
thereof. Operating results for the six months ended July 31, 1997 are not
necessarily indicative of the results that may be expected for the fiscal year
ending January 31, 1998. For further information, refer to the consolidated
financial statements and footnotes included in the Company's 1997 Annual Report
on Form 10-K/A to Stockholders.
Note B - Restricted Cash
The Company's wholly-owned subsidiary, Network Solutions, Inc. ("NSI"), has an
agreement with the National Science Foundation which requires NSI to set aside
30% of the cash collections from domain name registrations revenue to be
reinvested for the enhancement of the intellectual infrastructure of the
Internet. The Company also has a contract to provide support services to the
National Cancer Institute's Frederick Cancer Research and Development Center
("Center"). As part of the contract, the Company is responsible for paying for
materials, equipment and other direct costs of the Center through the use of a
restricted cash account which is pre-funded by the U.S. Government.
Note C - Receivables
Unbilled accounts receivable include $16,228,000 of costs incurred on projects
for which the Company has been requested by the customer to begin work under a
new contract, or extend work under a present contract, but for which formal
contracts or contract modifications have not been executed at July 31, 1997.
Note D - Composition of Certain Financial Statement Captions
<TABLE>
<CAPTION>
July 31, 1997
-------------
(in thousands)
<S> <C>
Inventories:
Contracts-in-process $ 5,678
Raw Materials 10,700
-------
$16,378
=======
</TABLE>
Note E - Notes Payable and Long-Term Liabilities
The Company has substantially equivalent unsecured revolving credit loan
agreements with three banks with commitments totaling $105,000,000 ("the
Existing Facilities") which allow borrowings on a revolving basis until March
31, 2000. The agreements enable borrowings at various interest rates, at the
Company's option, based on prime, money market, certificate of deposit, or
interbank offshore borrowing rates. Annual facility fees are 1/8 of 1% of the
total commitment during the revolving credit term. There were no balances
outstanding under the credit loan agreements at July 31, 1997 and the entire
$105,000,000 was available under the most restrictive debt covenants of the
credit loan agreements.
Subsequent to the quarter ended July 31, 1997, on August 20, 1997, the Company
entered into 2 new credit facilities ("the New Facilities") totaling
$900,000,000 with a group of financial institutions which provide for (i) a
five-year reducing revolving credit facility of up to $700,000,000 and (ii) a
364-day revolving credit facility of up to $200,000,000. The New Facilities,
which become effective upon the closing of the Bellcore acquisition and meeting
certain other requirements, will provide funding for the acquisition of
Bellcore and for general corporate purposes. Upon becoming effective, the New
Facilities will replace the Existing Facilities.
Note F - Income Taxes
Income taxes for interim periods are computed using the estimated annual
effective rate method.
<PAGE> 7
Note G - Commitments and Contingencies
The Company is involved in various investigations, claims and lawsuits arising
in the normal conduct of its business, none of which, in the opinion of the
Company's management, will have a material adverse effect on its consolidated
financial position, results of operations or ability to conduct business.
Note H - Sale of SAIT Business Unit
On March 7, 1997, the Company sold the majority of the net assets of the SAIT
business unit. The purchase price was subject to potential adjustments, plus
contingent payments if certain milestones are achieved by the business post
closing. At April 30, 1997, final settlement and adjustments with the buyer were
pending and certain circumstances gave rise to uncertainty surrounding the
realization of a gain. However, the Company did not anticipate a loss on the
sale. Given these circumstances, the Company deferred the recognition of any
gain until the uncertainty was resolved. During the quarter ended July 31, 1997,
the Company entered the final stage of negotiations and adjustments with the
buyer and significant uncertainty surrounding the realization of the gain was
resolved. The Company recognized a gain on the sale of $3,595,000.
<PAGE> 8
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations
Revenues for the three and six month periods ended July 31, 1997 increased 16.7%
and 18.6%, respectively, compared to the same periods of the prior year. INTESA,
the Company's consolidated 60%-owned joint venture, which was formed on January
2, 1997, was directly responsible for 7.4% and 6.5% of the percentage increase
for the three and six month periods ended July 31, 1997. The remaining increase
in revenues of 9.3% and 12.1% for the same periods was attributable to internal
growth in the traditional business areas which continued to shift toward lower
cost service type contracts. This business shift reflects the increasingly
competitive business environment in the Company's traditional business areas, as
well as the Company's increased success in the engineering and field services
market, which typically involve lower cost contracts.
Revenues are generated from the efforts of the Company's technical staff as well
as the pass through of costs for materials and subcontract efforts, which
primarily occur on large, multi-year contracts. At July 31, 1997, the Company
had approximately 22,700 full-time employees compared to approximately 20,400 at
July 31, 1996. Material and subcontract ("M&S") revenues were $164 million and
$321 million for the three and six months ended July 31, 1997, respectively,
compared to $158 million and $283 million for the same periods of the prior
year. As a percentage of total revenues, M&S revenues have decreased slightly to
23% and 24% for the three and six months ended July 31, 1997, respectively,
compared to 26% and 25% for the same periods of the prior year.
Revenues by contract type indicate that the percentage of the Company's revenues
attributable to higher risk, firm fixed-price ("FFP") contracts increased to 29%
for the six months ended July 31, 1997 from 21% for same period of the prior
year. The increase in revenues from FFP contracts is related to growth in
non-U.S.Government revenues. The Company's non-U.S. Government customers
typically do not contract on a cost-reimbursement basis. Fixed-price
level-of-effort and time-and- materials type contracts decreased to 17% of
revenues for the six months ended July 31, 1997 from 25% for the comparable
period in 1996, while cost reimbursement contracts were 54% for the same
periods, respectively. The Company assumes greater performance risk on FFP
contracts and the failure to accurately estimate ultimate costs or to control
costs during performance of the work may result in reduced profits or losses.
The cost of revenues as a percentage of revenues (excluding interest income)
remained relatively constant at 87.2% and 87.4% for the three and six month
periods ended July 31, 1997, respectively, compared to 87.1% and 87.3% for the
same periods of the prior year.
SG&A expenses as a percentage of revenues (excluding interest income) for the
three and six months ended July 31, 1997 decreased to 7.8% and 7.6%,
respectively, compared to 8.3% and 8.1% for the same periods of the prior year.
SG&A is comprised of general and administrative ("G&A"), bid and proposal
("B&P') and independent research and development ("IR&D") expenses. IR&D and B&P
costs decreased as a percentage of revenues, while G&A costs remained constant
as a percentage of revenues. The level of B&P activity and costs has
historically fluctuated depending on the availability of bidding opportunities
and resources. G&A costs remained constant as the Company continues to monitor
G&A costs as part of an ongoing program to control indirect spending.
Interest expense for the six months ended July 31, 1997 and 1996 primarily
relates to interest on building mortgages, deferred compensation and notes
payable.
On March 7, 1997, the Company sold the majority of the net assets of the SAIT
business unit. The purchase price was subject to potential adjustments, plus
contingent payments if certain milestones are achieved by the business post
closing. At April 30, 1997, final settlement and adjustments with the buyer were
pending and certain circumstances gave rise to uncertainty surrounding the
realization of a gain. However, the Company did not anticipate a loss on the
sale. Given these circumstances, the Company deferred the recognition of any
gain until the uncertainty was resolved. During the quarter ended July 31, 1997,
the Company entered the final stage of negotiations and adjustments with the
buyer and significant uncertainty surrounding the realization of the gain was
resolved. The Company recognized a gain on the sale of $3,595,000.
The consummation of the acquisition of Bell Communications Research, Inc.
("Bellcore") is subject to certain conditions and contingencies, including
regulatory approvals which are expected to be obtained during the fiscal quarter
ending October 31, 1997. The Company has no assurance that the acquisition will
be completed. The acquisition, if completed, would result in a substantial
growth in both the employee base and commercial revenues of the Company. The
Company intends to finance a substantial portion of the purchase price of
Bellcore with debt financing. The growth and additional debt of this potential
acquisition may place a significant strain on the Company's management,
operational and financial resources. There can be no assurance that the Company
will be able to effectively manage the expansion of its operations or that the
<PAGE> 9
Company's systems, procedures or controls will be adequate to support the
integration of the acquired business. Any inability to effectively manage the
growth could have a material adverse effect on the Company's consolidated
financial position, results of operations and cash flows.
The Company is involved in various investigations, claims and lawsuits arising
in the normal conduct of its business, none of which, in the opinion of the
Company's management, will have a material adverse effect on its consolidated
financial position, results of operations or its ability to conduct business.
Liquidity and Capital Resources
The Company's primary sources of liquidity continue to be funds provided by
operations and revolving credit loan agreements. At July 31, 1997 and 1996 there
were no borrowings outstanding under such agreements and cash and cash
equivalents and long-term investments totaled $181 million and $39 million,
respectively. Cash flows generated from operating activities were $132 million
for the six months ended July 31, 1997 compared to $64 million for the same
period of the prior year. The Company continues to actively monitor receivables
with emphasis placed on collection activities and the negotiation of more
favorable payment terms.
Cash flows from investing activities generated cash of $11 million for the six
months ended July 31, 1997 compared to a use of cash of $34 million for the
same period of the prior year. The primary source of this cash was generated
from the sale of net assets of the SAIT business unit, which is discussed in
the Notes to Condensed Consolidated Financial Statements and was partially
offset by the purchase of land and buildings and increased expenditures for
property and equipment.
The Company used $7 million in cash for financing activities for the six months
ended July 31, 1997 compared to $13 million for the same period of the prior
year. The Company utilized cash to pay off a mortgage note and repurchase common
stock while generating cash from sales of common stock, an increase in long-term
liabilities and the income tax benefit derived from employee stock options.
The Company's cash flows from operations plus borrowing capacity are expected to
provide sufficient funds for the Company's operations, common stock repurchases,
capital expenditures and future long-term debt requirements. However, the
Company intends to obtain financing, including debt, to complete the acquisition
of Bellcore and expects to finance other acquisitions in the future from
operations and borrowing capacity as well as the issuance of Company common
stock.
Subsequent to the quarter ended July 31, 1997, on August 20, 1997, the Company
entered into 2 new credit facilities ("the New Facilities") totaling
$900,000,000 with a group of financial institutions which provide for (i) a
five-year reducing revolving credit facility of up to $700,000,000 and (ii) a
364-day revolving credit facility of up to $200,000,000. The New Facilities,
which become effective upon the closing of the Bellcore acquisition and meeting
certain other requirements, will provide funding for the acquisition of
Bellcore and for general corporate purposes. Upon becoming effective, the New
Facilities will replace the Existing Facilities.
<PAGE> 10
PART II
OTHER INFORMATION
Item 1. Legal Proceedings
The Company is involved in various investigations, claims and lawsuits arising
in the normal conduct of its business, none of which, in the opinion of the
Company's management, will have a material adverse effect on its consolidated
financial position, results of operations or its ability to conduct business.
Item 2. Changes in Securities
Not applicable.
Item 3. Defaults Upon Senior Securities
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders
(a) The Annual Meeting of Stockholders of the registrant was held on July 11,
1997.
(b) All of the directors nominated by management in registrant's 1997 Proxy
Statement were elected and no solicitation in opposition to management's
nominees was made.
(c) At the Annual Meeting, the stockholders of the registrant approved the
following: (i) the election of the following Directors by the votes set
forth below:
<TABLE>
<CAPTION>
Number of Votes of Shares
of Common Stock
------------------------------
Withhold
Director For Authority
-------- ---------- ---------
<S> <C> <C>
D. P. Andrews 38,147,031 747,524
J. R. Beyster 40,206,986 747,524
V. N. Cook 37,855,750 747,524
W. H. Demisch 38,945,287 747,524
J. E. Glancy 38,783,550 747,524
H. M. J. Kraemer, Jr. 38,903,287 747,524
C. B. Malone 38,993,856 747,524
J. A. Welch 38,649,504 747,524
</TABLE>
(ii) the appointment of Price Waterhouse, LLP as registrant's
independent accountants for the year ending January 31, 1998 with
37,868,032 shares voting for the proposal, 418,715 shares voting
against and 1,271,435 shares abstaining.
(d) Not applicable.
Item 5. Other Information
Not applicable.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits - See Exhibit Index.
(b) Reports on Form 8-K.
Form 8-K filed July 21, 1997, Item 5, Other Events
Form 8-K filed July 14, 1997, Item 5 & Item 7, Other Events and
Financial Statements and Exhibits
Form 8-K filed July 9, 1997, Item 5, Other Events
Form 8-K filed June 30, 1997, Item 5 & Item 7, Other Events and Financial
Statements and Exhibits
<PAGE> 11
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
Date: September 11, 1997 /s/W. A. Roper
-----------------------------------------
Senior Vice President and
Chief Financial Officer and
as a duly authorized officer
<PAGE> 12
Exhibit Index
Science Applications International Corporation
Fiscal Quarter Ended July 31, 1997
<TABLE>
<CAPTION>
Exhibit Sequential
No. Description of Exhibits Page No.
- ------- ----------------------- ----------
<S> <C> <C>
10(d) Credit Agreement (Multi-Year Facility) with Bank of America NT&SA,
Morgan Guaranty Trust Company, Citicorp USA, Inc., and other
financial institutions party hereto dated as of August 20, 1997
10(e) Credit Agreement (364-Day Facility) with Bank of Americas NT&SA,
Morgan Guaranty Trust Company, Citicorp USA, Inc., and other
financial institutions party hereto dated as of August 20, 1997
11 Statement re: Computation of Per Share Earnings
27 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10(d)
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CREDIT AGREEMENT
(MULTI-YEAR FACILITY)
Dated as of August 20, 1997
among
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Syndication Agent
CITICORP USA, INC.,
as Documentation Agent
and
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
[BANCAMERICA LOGO] Arranged by
BANCAMERICA SECURITIES, INC.
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 1
DEFINITIONS AND ACCOUNTING TERMS......................................................... 1
1.1 Defined Terms........................................................... 1
1.2 Performance; Time....................................................... 29
1.3 Accounting Principles................................................... 30
1.4 Use of Defined Terms.................................................... 30
1.5 Rounding................................................................ 30
1.6 Exhibits and Schedules.................................................. 30
1.7 References to "Borrower and its Subsidiaries"........................... 30
1.8 Miscellaneous Terms..................................................... 30
Section 2
COMMITMENTS; INTEREST, FEES, PAYMENT PROCEDURES.......................................... 31
2.1 The Commitments......................................................... 31
2.2 Borrowings, Conversions and Continuations of Committed Loans............ 31
2.3 Competitive Loans....................................................... 32
2.4 Prepayments ............................................................ 35
2.5 Voluntary Reduction of Commitments...................................... 35
2.6 Mandatory Reductions in Commitments..................................... 36
2.7 Principal and Interest.................................................. 36
2.8 Fees.................................................................... 37
(a) Facility Fee........................................... 37
(b) Agency Fee............................................. 37
2.9 Computation of Fees and Interest........................................ 37
2.10 Manner and Treatment of Payments among the Banks, Borrower and the
Administrative Agent.................................................. 38
2.11 Funding Sources......................................................... 39
Section 3
TAXES, YIELD PROTECTION AND ILLEGALITY................................................... 39
3.1 Taxes................................................................... 39
3.2 Illegality.............................................................. 40
3.3 Increased Costs and Reduction of Return................................. 40
3.4 Capital Adequacy........................................................ 41
3.5 Breakfunding Costs...................................................... 41
3.6 Inability to Determine Rates............................................ 42
3.7 Matters Applicable to all Requests for Compensation..................... 42
Section 4
CONDITIONS............................................................................... 44
4.1 Conditions Precedent to Closing Date.................................... 44
(a) Credit Agreement................................................. 44
(b) Notes............................................................ 44
(c) Resolutions; Incumbency of Borrower.............................. 44
</TABLE>
- i -
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
(d) Articles of Incorporation; By-Laws and Good Standing of
Borrower....................................................... 44
(e) Officer's Certificate............................................ 44
(g) Payment of Agency Fee............................................ 45
(h) Other Documents.................................................. 45
4.2 Conditions Precedent to Effective Date.................................. 45
(a) Completion of Bellcore Acquisition............................... 45
(b) Officer's Certificate re Bellcore Acquisition.................... 46
(c) Termination of Existing Agreements............................... 46
(d) Supplements to Schedules......................................... 46
(e) Payment of Attorney Costs........................................ 46
4.3 Any Extensions of Credit................................................ 46
(a) Request for Extension of Credit.................................. 46
(b) Continuation of Representations and Warranties................... 46
(c) No Existing Default.............................................. 47
Section 5
REPRESENTATIONS AND WARRANTIES........................................................... 47
5.1 Corporate Existence and Power........................................... 47
5.2 Corporate Authorization; No Contravention............................... 47
5.3 Governmental Authorization.............................................. 48
5.4 Binding Effect.......................................................... 48
5.5 Litigation.............................................................. 48
5.6 No Event of Default..................................................... 48
5.7 ERISA Compliance........................................................ 49
5.8 Regulations G, T, U and X............................................... 50
5.9 Taxes................................................................... 50
5.10 Financial Condition.................................................... 50
5.11 Environmental Matters.................................................. 50
5.12 Subsidiaries........................................................... 51
5.13 Insurance ............................................................ 51
5.14 Full Disclosure........................................................ 51
5.15 Public Utility Holding Company Act; Investment Company Act............. 51
5.16 Title to Properties.................................................... 51
Section 6
AFFIRMATIVE COVENANTS.................................................................... 51
6.1 Financial Statements.................................................... 51
6.2 Certificates; Other Information......................................... 52
6.3 Notices................................................................. 53
6.4 Preservation of Corporate Existence, Etc................................ 53
6.5 Maintenance of Property................................................. 54
6.6 Insurance............................................................... 54
6.7 Compliance with Laws.................................................... 54
6.8 Inspection of Property and Books and Records............................ 54
6.9 Environmental Laws...................................................... 55
6.10 Use of Proceeds........................................................ 55
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 7
NEGATIVE COVENANTS....................................................................... 55
7.1 Liens, Negative Pledges................................................. 55
7.2 Dispositions............................................................ 56
7.3 Mergers................................................................. 56
7.4 Limitation on Guaranty Obligations...................................... 57
7.5 Synthetic Leases........................................................ 57
7.6 Compliance with ERISA................................................... 57
7.7 Consolidated Net Worth.................................................. 58
7.8 Leverage Ratio.......................................................... 58
7.9 Annualized Interest Coverage Ratio...................................... 58
7.10 Bellcore Funded Debt Ratio.............................................. 58
7.11 Accounting Changes...................................................... 58
7.12 Change in Nature of Business............................................ 58
Section 8
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT..................................... 59
8.1 Events of Default....................................................... 59
(a) Non-Payment...................................................... 59
(b) Representation or Warranty....................................... 59
(c) Specific Defaults................................................ 59
(d) Other Defaults................................................... 59
(e) Cross Default.................................................... 59
(f) Insolvency; Voluntary Proceedings................................ 60
(g) Involuntary Proceedings.......................................... 60
(h) ERISA............................................................ 60
(i) Monetary Judgments............................................... 61
(j) Change in Control................................................ 61
8.2 Remedies Upon Event of Default.......................................... 61
Section 9
THE ADMINISTRATIVE AGENT................................................................. 63
9.1 Appointment and Authorization........................................... 63
9.2 Administrative Agent and Affiliates..................................... 63
9.3 Banks' Credit Decisions................................................. 63
9.4 Action by Administrative Agent.......................................... 64
9.5 Liability of Administrative Agent....................................... 65
9.6 Indemnification......................................................... 66
9.7 Successor Administrative Agent.......................................... 67
9.8 No Obligations of Borrower.............................................. 67
9.9 Documentation Agent; Syndication Agent.................................. 68
Section 10
MISCELLANEOUS............................................................................ 68
10.1 Amendments; Consents................................................... 68
10.2 Notices................................................................ 69
10.3 No Waiver; Cumulative Remedies......................................... 69
10.4 Costs and Expenses..................................................... 70
10.5 Binding Effect; Assignment............................................. 70
10.6 Sharing of Setoffs..................................................... 72
10.7 Counterparts........................................................... 73
10.8 Severability........................................................... 73
</TABLE>
- iii -
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
10.9 No Third Parties Benefited............................................ 73
10.10 Time.................................................................. 74
10.11 GOVERNING LAW AND JURISDICTION........................................ 74
10.12 WAIVER OF JURY TRIAL.................................................. 74
10.13 Entire Agreement...................................................... 75
10.14 Interpretation........................................................ 75
10.15 Nature of Banks' Obligations.......................................... 75
10.16 Indemnity by Borrower................................................. 75
10.17 Nonliability of the Banks............................................. 76
10.18 Failure to Charge Not Subsequent Waiver............................... 76
10.19 Headings.............................................................. 77
10.20 Foreign Banks and Participants........................................ 77
10.21 Confidentiality....................................................... 78
</TABLE>
- iv -
<PAGE> 6
EXHIBITS
Form of:
A Request for Extension of Credit
B Compliance Certificate
C Committed Loan Note
D-1 Competitive Bid Request
D-2 Competitive Bid
D-3 Competitive Loan Note
E Notice of Assignment and Acceptance
F Opinion of Corporate Counsel
SCHEDULES
2.1 Commitments and Pro Rata Shares
4.2(a)(i) Certain Amendments to Bellcore Purchase Agreements
5.7 ERISA Plans
5.12 Subsidiaries
7.1 Existing Liens
7.2 Certain Permitted Dispositions
10.2 Lending Offices and Notice Addresses
- v -
<PAGE> 7
CREDIT AGREEMENT
(MULTI-YEAR FACILITY)
This CREDIT AGREEMENT (MULTI-YEAR FACILITY) dated as of August 20, 1997
is entered into by and among SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a
Delaware corporation ("Borrower"), each lender whose name is set forth on the
signature pages of this Agreement and each lender which may hereafter become a
party to this Agreement (collectively, the "Banks" and individually, a "Bank")
and Bank of America National Trust and Savings Association, as Administrative
Agent.
RECITALS
A. Concurrently herewith, Borrower is completing the Bellcore
Acquisition and, in connection therewith, Borrower has requested that the Banks
provide a reducing revolving credit facility hereunder to fund the purchase
price for the Bellcore Acquisition and for general corporate purposes.
B. The Banks are willing to provide a credit facility on the terms and
conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Section 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms will
have the following meanings, unless the context otherwise requires:
"Absolute Rate" means a rate of interest for a Competitive Loan
determined from an Absolute Rate Bid that has been accepted by Borrower.
"Absolute Rate Bid" has the meaning set forth in Section 2.3(b).
"Administrative Agent" means Bank of America National Trust and Savings
Association, when acting in its capacity as the Administrative Agent under any
of the Loan Documents, or any successor Administrative Agent.
- 1 -
<PAGE> 8
"Administrative Agent's Office" means the Administrative Agent's
address and account as set forth on Schedule 10.2, or such other address or
account as the Administrative Agent hereafter may designate by written notice to
Borrower and the Banks.
"Administrative Agent-Related Persons" means the Administrative Agent
(including any successor agent), together with their respective Affiliates, and
the officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract or otherwise. In no
event shall the Bank be deemed an "Affiliate" of Borrower or of any Subsidiary
of Borrower.
"Agreement" means this Credit Agreement, as amended, supplemented,
modified, restated or extended from time to time in accordance with the terms
hereof.
"Annualized EBITDA" means, as of the last day of each Fiscal Quarter,
(a) EBITDA of Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP for the fiscal period consisting of that Fiscal Quarter and
the three immediately preceding Fiscal Quarters plus, without duplication, (b)
with respect to Bellcore, such amount as is necessary to reflect the
annualization of EBITDA attributable to Bellcore using the following
conventions: (i) if the Bellcore Acquisition was made less than one full Fiscal
Quarter ago, no annualization adjustment shall be made, (ii) if the Bellcore
Acquisition was made more than one full Fiscal Quarter ago, but less than two
full Fiscal Quarters ago, Bellcore's EBITDA for that Fiscal Quarter shall be
multiplied by four, (iii) if the Bellcore Acquisition was made more than two
full Fiscal Quarters ago, but less than three full Fiscal Quarters ago,
Bellcore's EBITDA for those Fiscal Quarters shall be multiplied by two and (iv)
if the Bellcore Acquisition was made more than three full Fiscal Quarters ago,
but less than four full Fiscal Quarters ago, Bellcore's EBITDA for those Fiscal
Quarters shall be multiplied by four thirds (4/3).
"Annualized Interest Expense" means, as of the last day of each Fiscal
Quarter, (a) Interest Expense of Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP for the fiscal period consisting of that Fiscal
Quarter
- 2 -
<PAGE> 9
and the three immediately preceding Fiscal Quarters plus (b) for the first year
after the Bellcore Acquisition, such amount as is necessary to reflect the
annualization of Interest Expense using the following conventions: (i) if the
Bellcore Acquisition was made less than one full Fiscal Quarter ago, no
annualization adjustment shall be made, (ii) if the Bellcore Acquisition was
made more than one full Fiscal Quarter ago, but less than two full Fiscal
Quarters ago, Interest Expense for that Fiscal Quarter shall be multiplied by
four, (iii) if the Bellcore Acquisition was made more than two full Fiscal
Quarters ago, but less than three full Fiscal Quarters ago, Interest Expense for
those Fiscal Quarters shall be multiplied by two and (iv) if the Bellcore
Acquisition was made more than three full Fiscal Quarters ago, but less than
four full Fiscal Quarters ago, Interest Expense for those Fiscal Quarters shall
be multiplied by four thirds (4/3).
"Annualized Interest Coverage Ratio" means, as of the last day of each
Fiscal Quarter (including the last day of a Fiscal Quarter which is also the
last day of a Fiscal Year), the ratio of (a) Annualized EBITDA for the fiscal
period consisting of that Fiscal Quarter and the three immediately preceding
Fiscal Quarters to (b) Annualized Interest Expense for that fiscal period.
"Applicable Amount" means, (a) with respect to any Offshore Rate Loan
or CD Rate Loan, the per annum amounts set forth below under Applicable Amount
opposite the Pricing Level in effect on the date such Offshore Rate Loan or CD
Rate Loan is borrowed, Continued or Converted (notwithstanding any subsequent
change in the Pricing Level during the Interest Period applicable to such
Offshore Rate Loan) and (b) with respect to the facility fee, the per annum
amount set forth below under Applicable Amount opposite the Pricing Level in
effect from time to time; provided, however, that until delivery of the
Compliance Certificate pursuant to Section 6.2(a) for the first full Fiscal
Quarter after the Fiscal Quarter within which the Bellcore Acquisition was
consummated , the Applicable Amount shall be based on Pricing Level 2:
- 3 -
<PAGE> 10
<TABLE>
<CAPTION>
====================================================================
Applicable Amount
(in basis points per annum)
Pricing ---------------------------------------------------
Level Facility Fee Offshore Rate + CD Rate +
--------------------------------------------------------------------
<S> <C> <C> <C>
1 7.5 15.0 27.5
--------------------------------------------------------------------
2 9.0 21.0 33.5
--------------------------------------------------------------------
3 12.0 23.0 35.5
--------------------------------------------------------------------
4 14.5 28.0 40.5
--------------------------------------------------------------------
5 17.0 45.5 68.0
====================================================================
</TABLE>
"Pricing Level" means, as of any date, the pricing level set
forth below opposite (a) the most creditworthy applicable Pricing
Rating or (b) the applicable Annualized Interest Coverage Ratio,
whichever results in the lowest Applicable Amount, in each case as in
effect as of the first day of the Pricing Period in which such date
occurs:
<TABLE>
<CAPTION>
Pricing Annualized
Interest Level Pricing Rating Coverage Ratio
----- -------------- --------------
S&P Moody's
<S> <C> <C> <C>
1 GREATER THAN OR EQUAL TO A- A3 GREATER THAN OR EQUAL TO 9.50:1
2 GREATER THAN OR EQUAL TO BBB+ Baa1 GREATER THAN OR EQUAL TO 7.75:1 but
LESS THAN 9.50:1
3 GREATER THAN OR EQUAL TO BBB Baa2 GREATER THAN OR EQUAL TO 6.25:1 but
LESS THAN 7.75:1
4 GREATER THAN OR EQUAL TO BBB- Baa3 GREATER THAN OR EQUAL TO 4.50:1 but
LESS THAN 6.25:1
5 LESS THAN BBB- Baa3 LESS THAN 4.50:1
</TABLE>
provided, however, that if there is no Pricing Rating, the Applicable
Amount shall be based solely on the Annualized Interest Coverage Ratio;
provided, further, that if the Compliance Certificate is not delivered
by the date required by the Section 6.2(a) at any time when the
Applicable Amount is determined by the Annualized Interest Coverage
Ratio, then, subject to the other provisions of this Agreement,
commencing on the date such Compliance Certificate was required to be
delivered until the date such Compliance Certificate is delivered, the
Applicable Amount set forth for Level 5 above shall apply; from and
after the date such Compliance Certificate is thereafter received, the
- 4 -
<PAGE> 11
Applicable Amount indicated by the Annualized Interest Coverage Ratio
set forth in such Compliance Certificate shall apply.
"Pricing Level Change Date" means (a) with respect to any
change in the Pricing Rating which results in a change in the
Applicable Amount, the date of the public announcement of the change in
such Pricing Rating or (b) with respect to any change in the Annualized
Interest Coverage Ratio which results in a change in the Applicable
Amount, the date upon which Borrower is required by Section 6.2(a) to
deliver such Compliance Certificate.
"Pricing Period" means (a) the period commencing on the
Closing Date and ending on the first Pricing Level Change Date to occur
thereafter and (b) each subsequent period commencing on each Pricing
Level Change Date and ending the day prior to the next Pricing Level
Change Date.
"Pricing Rating" means, as of any date of determination, the
rating, if any, of Borrower's senior unsecured debt, as determined by
either Standard & Poor's Corporation ("S&P") or Moody's Investors
Service, Inc. ("Moody's); provided, that if Borrower's senior unsecured
debt is rated by both of such rating agencies, then the more
creditworthy of such credit ratings shall apply unless there is a split
rating of two grades or more, in which case the median of the two
ratings shall apply.
"Applicable Taxes" means any and all present or future taxes (including
documentary taxes), levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges, and all liabilities with respect thereto
imposed by a Governmental Authority relating to any Loan Document, including any
liabilities imposed on amounts paid by Borrower to indemnify or reimburse any
Person for such amounts, excluding Bank Taxes.
"Arranger" means BancAmerica Securities, Inc.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated cost of
internal legal services and all disbursements of internal counsel.
"Availability Period" means the period commencing on the Effective Date
and ending, subject to Section 8, on the day before the Maturity Date.
- 5 -
<PAGE> 12
"Bank" means each lender from time to time party hereto.
"Bank Taxes" means, in the case of each Bank, the Administrative Agent,
each Eligible Assignee, and any Affiliate or Lending Office thereof: (a) taxes
imposed on or measured in whole or in part by its overall net income, gross
income or gross receipts or capital and franchise taxes imposed on it, by (i)
any jurisdiction (or political subdivision thereof) in which it is organized or
maintains its principal office or Lending Office or (ii) any jurisdiction (or
political subdivision thereof) in which it is "doing business" (unless it would
not be doing business in such jurisdiction (or political subdivision thereof)
absent the transactions contemplated hereby), (b) any withholding taxes or other
taxes based on gross income imposed by the United States of America (other than
withholding taxes and taxes based on gross income resulting from or attributable
to any change in any law, rule or regulation or any change in the interpretation
or administration of any law, rule or regulation by any Governmental Authority
in each case after the date hereof) or (c) any withholding taxes or other taxes
based on gross income imposed by the United States of America for any period
with respect to which it has failed to provide Borrower with the appropriate
form or forms required by Section 10.20, to the extent such forms are then
required by any Requirement of Law.
"Base Rate" means the higher of: (a) the rate of interest publicly
announced from time to time by BofA in San Francisco, California, as its
"reference rate," which is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate; and (b) one-half percent per
annum above the Federal Funds Rate. Any change in the reference rate announced
by BofA shall take effect at the opening of business on the day specified in the
public announcement of such change.
"Base Rate Loan" means a Committed Loan made hereunder and specified to
be a Base Rate Loan in accordance with Section 2.
"Bellcore" means Bell Communications Research, Inc., a Delaware
corporation.
"Bellcore Acquisition" means Borrower's acquisition of Bellcore
pursuant to the Bellcore Purchase Agreement.
"Bellcore Funded Debt" means, at any date of determination, for
Bellcore, an amount equal to the sum of, without duplication, (a) all
Indebtedness of Bellcore for
- 6 -
<PAGE> 13
borrowed money plus (b) the principal portion of all Capital Lease Obligations
of Bellcore plus (c) all Guaranty Obligations of Bellcore with respect to Funded
Debt of others plus (d) all obligations of Bellcore under Permitted Accounts
Receivable Financings, in each case determined as of such date.
"Bellcore Funded Debt Ratio" means, as of the last day of each Fiscal
Quarter of Borrower (including the last day of a Fiscal Quarter which is also
the last day of a Fiscal Year) after completion of the Bellcore Acquisition, the
ratio of (a) Bellcore Funded Debt to (b) Bellcore's EBITDA for the fiscal period
consisting of that Fiscal Quarter and the three immediately preceding Fiscal
Quarters.
"Bellcore Material Adverse Effect" means a material adverse change in,
or a material adverse effect upon, any of (a) the operations, business,
Properties or financial condition of Bellcore and its Subsidiaries, taken as a
whole; or (b) the legality, validity, binding effect or enforceability of the
Bellcore Purchase Agreement.
"Bellcore Purchase Agreement" means the Stock Purchase Agreement dated
as of November 20, 1996 among Borrower, Bellcore and the sellers named therein,
as amended, including the exhibits and schedules thereto.
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco are authorized or
required by law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means any such day on which dealings are carried on in the
London offshore dollar interbank market.
"Borrowing" and "Borrow" each mean, a borrowing hereunder consisting of
Loans of the same type made on the same day and, other than in the case of Base
Rate Loans, having the same Interest Period.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law (provided
that if such guideline, request or directive does not have the force of law,
compliance therewith is customary for banks regulated in a manner similar to
such Bank), rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of such Bank or of any corporation controlling
such Bank.
"Capital Lease" has the meaning specified in the definition of Capital
Lease Obligations.
- 7 -
<PAGE> 14
"Capital Lease Obligations" means all monetary obligations of Borrower
or any of its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, is classified as a capital lease ("Capital Lease").
"CD Rate" means, for any Interest Period with respect to CD Rate Loans
comprising part of the same Borrowing, the per annum rate of interest (rounded
upward to the next 1/100th of 1%) determined by the Administrative Agent (whose
determination shall be conclusive in the absence of manifest error) as follows:
CD Rate = Certificate of Deposit Rate + Assessment
--------------------------- Rate
1.00 - Reserve Percentage
Where:
"Assessment Rate" means, for any day of such Interest Period,
the rate determined by the Administrative Agent as equal to the annual
assessment rate in effect on such day payable to the FDIC (or any
successor) by a member of the Bank Insurance Fund that is classified as
adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning
of 12 C.F.R. Section327.4(a) (or any successor provisions) for insuring
time deposits at offices of such member in the United States.
"Certificate of Deposit Rate" means the rate of interest per
annum determined by the Administrative Agent to be the arithmetic mean
(rounded upward to the next 1/100th of 1%) of the rates notified to the
Administrative Agent as the rates of interest bid by two or more
certificate of deposit dealers of recognized standing selected by the
Administrative Agent for the purchase at face value of dollar
certificates of deposit issued by major United States banks, for a
maturity comparable to such Interest Period and in the approximate
amount of the CD Rate Loans to be made, at the time selected by the
Administrative Agent on the first day of such Interest Period.
"Reserve Percentage" means, for any day of such Interest
Period, the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%), as determined by the Administrative
Agent, in effect on such day (including any ordinary, marginal,
emergency, supplemental, special and other reserve percentages),
prescribed by the Federal Reserve Board pursuant to Regulation D
promulgated under the
- 8 -
<PAGE> 15
Federal Reserve Act, as amended from time to time, for determining the
maximum reserves to be maintained by member banks of the Federal
Reserve System with deposits exceeding $1,000,000,000 for new
non-personal time deposits for a period comparable to such Interest
Period and in an amount of $100,000 or more.
The CD Rate shall be adjusted, as to all CD Rate Loans then
outstanding, automatically as of the effective date of any change in the
Assessment Rate or the Reserve Percentage.
"CD Rate Loan" means a Loan that bears interest based on the CD Rate.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Closing Date" means the date on which all conditions precedent set
forth in Section 4.1 are satisfied or waived by the Banks and the Administrative
Agent.
"Code" means the Internal Revenue Code of 1986, as amended or replaced
and as in effect from time to time.
"Commitment" means, for each Bank, the amount set forth as such
opposite such Bank's name on Schedule 2.1 under Commitment, as such amount may
be reduced pursuant to the terms of this Agreement (collectively, the combined
"Commitments"). The respective Pro Rata Shares of the Banks in the combined
Commitments are set forth in Schedule 2.1.
"Committed Loan" means a revolving Loan made to Borrower by any Bank in
accordance with its Pro Rata Share under that Bank's Commitment pursuant to
Section 2.1(a).
"Committed Loan Note" means the promissory note made by Borrower in
favor of a Bank evidencing such Bank's Committed Loans, substantially in the
form of Exhibit C, either as originally executed or as the same may from time to
time be supplemented, modified, amended, renewed, extended or supplanted
(collectively, the "Committed Loan Notes").
"Competitive Bid" means (a) a written bid delivered to the
Administrative Agent to provide Competitive Loans, substantially in the form of
Exhibit D-2, duly completed and signed by a Bank, or (b) a telephonic bid made
by a Bank to the Administrative Agent to provide Competitive Loans including the
substance of Exhibit D-2, promptly confirmed by a written Competitive Bid.
"Competitive Bid Maximum" means the maximum amount(s) a Bank is willing
to bid under a Competitive Bid for all
- 9 -
<PAGE> 16
Competitive Loans included therein and/or individual Competitive Loans included
therein.
"Competitive Bid Request" means (a) a written request delivered to the
Administrative Agent requesting Competitive Bids, substantially in the form of
Exhibit D-1, duly completed and signed by a Responsible Officer, or (b) a
telephonic request made by a Responsible Officer to the Administrative Agent
requesting Competitive Bids including the substance of Exhibit D-1, promptly
confirmed by a written Competitive Bid Request.
"Competitive Loan" means a Loan made by any Bank having a fixed
interest rate under the combined Commitments not determined by that Bank's Pro
Rata Share pursuant to Section 2.3.
"Competitive Loan Minimum Amount" means, with respect to each of the
following actions with respect to each type of Competitive Loan, the following
amounts set forth opposite such action under such type of Competitive Loan (a
reference to "Competitive Loan Minimum Amount" shall also be deemed a reference
to the multiples in excess thereof set forth on the last line below):
<TABLE>
<CAPTION>
Absolute Offshore
Type of Action Rate Minimum Rate Minimum
-------------- ------------ ------------
<S> <C> <C>
Competitive Bid
Requests $5,000,000 $5,000,000
Competitive Bids $1,000,000 $5,000,000
Competitive Loans $1,000,000 $5,000,000
-----------------------
Multiples in excess
of above amounts $ 500,000 $1,000,000
</TABLE>
"Competitive Loan Note" means the promissory note made by Borrower in
favor of a Bank evidencing the Competitive Loans made by that Bank,
substantially in the form of Exhibit D-3, either as originally executed or as
the same may from time to time be supplemented, modified, amended, renewed,
extended or supplanted (collectively, the "Competitive Loan Notes").
- 10 -
<PAGE> 17
"Competitive Loan Requisite Time" means, with respect to any
of the actions listed below, the time set forth opposite such action (all times
are California time):
<TABLE>
<CAPTION>
Date:
Absolute Offshore
Action Time Rate Rate
------ ---- --------- --------
<S> <C> <C> <C>
Competitive Bid 9:00 a.m. 1 Business 4 Business
Request Day prior to Days prior to
Borrowing Borrowing Date
Date
Competitive Bid 7:30 a.m. Borrowing 3 Business
Date Days prior to
Borrowing Date
(Bid by BofA) 7:15 a.m. Borrowing 3 Business
Date Days prior to
Borrowing Date
Borrower's 8:30 a.m. Borrowing 3 Business
Acceptance Date Days prior to
Borrowing Date
</TABLE>
"Compliance Certificate" means a certificate substantially in the form
of Exhibit B, properly completed and signed by a Responsible Officer.
"Consolidated Funded Debt" means, at any date of determination, for
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP,
an amount equal to the sum of, without duplication, (a) all Indebtedness of such
Person for borrowed money or which has been incurred in connection with the
acquisition of assets plus (b) the principal portion of all Capital Lease
Obligations of such Person plus (c) all Guaranty Obligations of such Person with
respect to Funded Debt of others, in each case determined as of such date.
"Consolidated Net Worth" means, at any date of determination, the net
worth of Borrower and its Subsidiaries on a consolidated basis in accordance
with GAAP.
"Continuation" and "Continue" each mean, with respect to any Committed
Loan other than a Base Rate Loan, the continuation of such Loan as the same type
of Loan in the same principal amount, but with a new Interest Period and an
interest rate determined as of the first day of such new Interest Period.
Continuations must occur on the last day of the Interest Period for such Loan.
- 11 -
<PAGE> 18
"Contractual Obligations" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its Property is bound.
"Controlled Group" means Borrower and all Persons (whether or not
incorporated) under common control or treated as a single employer with Borrower
pursuant to Section 414(b) or (c) of the Code.
"Conversion" and "Convert" each mean, with respect to any Committed
Loan, the conversion of one type of Loan into another type of Loan. With respect
to Loans other than Base Rate Loans, Conversions must occur on the last day of
the Interest Period for such Loan.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Default Rate" means an interest rate equal to the underlying interest
rate applicable to such type of Loan plus the Applicable Amount, if any,
otherwise applicable plus 2%, to the fullest extent permitted by any Requirement
of Law.
"Designated Deposit Account" means a deposit account to be maintained
by Borrower with Bank of America National Trust and Savings Association, as from
time to time designated by Borrower by written notification to the
Administrative Agent.
"Disposition" means the voluntary sale, transfer, or other disposition
(but not including a pledge or hypothecation except as set forth below in this
definition) of any asset of Borrower or any of its Subsidiaries, including
without limitation any sale, assignment, pledge, hypothecation, transfer or
other disposal with or without recourse of any notes or accounts receivable or
any rights and claims associated therewith, other than a Permitted Disposition.
"EBITDA" means, for any period, for any Person, an amount equal to the
sum of (a) Net Income of such Person for that period, plus (b) Interest Expense
of such Person for that period, plus (c) the aggregate amount of consolidated
federal and state taxes on or measured by income of such Person and its
consolidated Subsidiaries for that period (whether or not payable during that
period), plus (d) consolidated depreciation, amortization and all other non-cash
expenses of
- 12 -
<PAGE> 19
such Person and its consolidated Subsidiaries for that period, in each case as
determined in accordance with GAAP.
"Effective Date" means the date on which all conditions precedent set
forth in Section 4.2 are satisfied or waived by the Banks and the Administrative
Agent.
"Eligible Assignee" means (i) a financial institution organized under
the laws of the United States, or any state thereof, and having total assets of
at least $1,000,000,000; (ii) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country, and
having total assets of at least $1,000,000,000, provided that such bank is
acting through a branch or agency located in the United States; (iii) a Person
that is primarily engaged in the business of commercial banking and that is (A)
a Subsidiary of a Bank, (B) a Subsidiary of a Person of which a Bank is a
Subsidiary, or (C) a Person of which a Bank is a Subsidiary or (iv) another
Bank.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging liability or responsibility for
violation of any Environmental Law or for release or injury to the environment
or threat to public health, personal injury (including sickness, disease or
death), Property damage, natural resources damage, or otherwise alleging
liability or responsibility for damages (punitive or otherwise), cleanup,
removal, remedial or response costs, restitution, civil or criminal penalties,
injunctive relief, or other type of relief, resulting from or based upon (a) the
presence, placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spills, leaks, discharges, emissions or releases) of
any Hazardous Material at, in, or from Property, whether or not owned by
Borrower, or (b) any other circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws, statutes,
rules, regulations, ordinances and codes, together with all administrative
orders, licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental, health, safety
and land use matters (excluding matters relating to zoning and building
permits); including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), the Clean Air Act,
the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act,
the Federal Resource Conservation and Recovery Act, the Toxic Substances Control
Act, the Emergency
- 13 -
<PAGE> 20
Planning and Community Right-to-Know Act, the California Hazardous Waste Control
Law, the California Solid Waste Management, Resource, Recovery and Recycling
Act, the California Water Code and the California Health and Safety Code.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Borrower or any Subsidiary of Borrower
within the meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan which is a Materially Underfunded Plan; (b) a
withdrawal by any member of the Controlled Group from a Qualified Plan which is
a Materially Underfunded Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA); (c) a complete or partial withdrawal by any member of the Controlled
Group from a Multiemployer Plan which is a Materially Underfunded Plan; (d) the
filing of a notice of intent to terminate, the treatment of a plan amendment as
a termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Qualified Plan or Multiemployer Plan
which is a Materially Underfunded Plan subject to Title IV of ERISA; (e) a
failure to make required contributions to a Qualified Plan or Multiemployer Plan
which is a Materially Underfunded Plan; (f) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Qualified
Plan or Multiemployer Plan which is a Materially Underfunded Plan; (g) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon any member of the
Controlled Group with respect to a Materially Underfunded Plan; (h) an
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code with respect to any Qualified Plan which is
a Materially Underfunded Plan; (i) any member of the Controlled Group engages in
or otherwise becomes liable for a non-exempt prohibited transaction which would
have a Material Adverse Effect; or (j) a violation of the applicable
requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under
Section 401(a) of the Code by any fiduciary with respect to any Qualified Plan
for which Borrower or any of its Subsidiaries may be directly or indirectly
liable which would have a Material Adverse Effect.
- 14 -
<PAGE> 21
"Event of Default" shall have the meaning provided in Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934.
"Existing Agreements" means (a) that certain Credit Agreement dated as
of April 7, 1995 between Borrower and BofA; (b) that certain Credit Agreement
dated as of April 7, 1995 between Borrower and Citicorp USA, Inc., (c) that
certain Credit Agreement dated as of April 7, 1995 between Borrower and Morgan
Guaranty Trust Company of New York and (d) that certain Credit Agreement dated
as of June 27, 1996 among Bellcore, the banks listed therein and Morgan Guaranty
Trust Company of New York, as agent.
"Extension of Credit" means the Borrowing, Conversion or Continuation
of any Loans (collectively, the "Extensions of Credit").
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate."
"Federal Funds Rate" means the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day of determination
(or if such day of determination is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transaction received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"Fiscal Quarter" means, as applicable, the fiscal quarter of Borrower,
its Subsidiaries and Bellcore.
"Fiscal Year" means, as applicable, the fiscal year of Borrower, its
Subsidiaries and Bellcore.
"Funded Debt" means, for any period, for any Person, an amount equal to
the sum of, without duplication, (a) all Indebtedness of such Person for
borrowed money plus (b) the principal portion of all Capital Lease Obligations
of such Person plus (c) all Guaranty Obligations of such Person with respect to
Funded Debt of others plus (d) all obligations of such Person under Permitted
Accounts Receivable Financings.
- 15 -
<PAGE> 22
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general use by significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
"Governmental Authority" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof, (b) any
governmental agency, central bank or comparable authority, authority, board,
bureau, commission, department or instrumentality, or (c) any court or
administrative tribunal.
"Guaranty Obligation" means, as applied to Borrower or any of its
Subsidiaries, any direct or indirect liability of that Person with respect to
any Indebtedness, lease, letter of credit, surety bond, bankers' acceptance or
other obligation (the "primary obligations") of another Person (except Borrower
or any of its Subsidiaries) (the "primary obligor"), including any obligation of
that Person, whether or not contingent, (a) to purchase, repurchase or otherwise
acquire such primary obligations or any Property constituting direct or indirect
security therefor, or (b) to advance or provide funds (i) for the payment or
discharge of any such primary obligation, or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of
the primary obligor, or (c) to purchase Property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation, or (d) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof. The amount of any Guaranty
Obligation shall be deemed equal to the stated or determinable amount of the
primary obligation in respect of which such Guaranty Obligation is made or, if
not stated or if indeterminable, the maximum reasonably anticipated liability in
respect thereof.
"Hazardous Materials" means all those substances which are regulated
by, or which may form the basis of liability under, any Environmental Law,
including all substances identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic
- 16 -
<PAGE> 23
substance, or petroleum or petroleum derived substance or waste.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of Property or services (other than trade
payables entered into in the ordinary course of business pursuant to ordinary
terms); (c) all matured or drawn and unreimbursed reimbursement obligations with
respect to surety bonds, letters of credit, bankers' acceptances and similar
instruments (in each case, to the extent non-contingent); (d) all obligations
evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
Property, assets or businesses; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement, in either case with
respect to Property acquired by the Person (even though the rights and remedies
of the seller or bank under such agreement in the event of default are limited
to repossession or sale of such Property); (f) all Capital Lease Obligations;
(g) all indebtedness referred to in clauses (a) through (f) above secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in Property (including accounts
and contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; and (h) all
Guaranty Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (f) above. Indebtedness shall not
include life insurance policy loans secured by the surrender value of such life
insurance policy.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in the case of clause (a) and (b) undertaken under U.S. Federal,
State or foreign law, including the Bankruptcy Code.
"Interest Expense" means, for any period, for any Person, the sum,
without duplication, of total consolidated interest expense (including that
portion attributable to Capitalized Leases in conformity with GAAP) of such
Person and its consolidated Subsidiaries.
"Interest Payment Date" means, (a) with respect to any Committed Loan
other than a Base Rate Loan, (i) the last day of
- 17 -
<PAGE> 24
each Interest Period applicable to, or the maturity of, such Loan; provided,
however, that (A) if any Interest Period for an Offshore Rate Loan exceeds three
months, interest shall also be paid on the date which falls, as applicable,
three, six, nine and 12 months after the beginning of such Interest Period; and
(B) if any Interest Period for a CD Rate Loan exceeds 90 days, interest shall
also be paid on the date which falls 90 days after the beginning of such
Interest Period; (ii) any date that such Loan is prepaid in whole or in part,
and (iii) the Maturity Date, and (b) with respect to any Base Rate Loan, the
last Business Day of each calendar quarter and the Maturity Date.
"Interest Period" means, as to any Committed Loan other than a Base
Rate Loan, the period commencing on the date specified by Borrower in its
Request for Extension of Credit and ending, (i) in the case of Offshore Rate
Loans, one, two, three or six months (or, if consented to by all Banks in
accordance with Section 2.2(a), nine or 12 months) thereafter, or (ii) in the
case of CD Rate Loans, 30, 60, 90 or 180 days thereafter, in each case as
selected by Borrower in the Request for Extension of Credit relating thereto;
provided that:
(a) if any Interest Period pertaining to an Offshore Rate Loan
would otherwise end on a day which is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end
on the immediately preceding Business Day;
(b) any Interest Period pertaining to an Offshore Rate Loan
that begins on the last 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 end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(c) No Interest Period for any Loan shall extend beyond the
Maturity Date.
"Lending Office" means, as to any Bank, the office or offices of such
Bank specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on Schedule 10.2, or such other office or
offices as such Bank may from time to time notify the Administrative Agent.
"Leverage Ratio" means, as of any date of determination, the ratio of
(a) Consolidated Funded Debt on
- 18 -
<PAGE> 25
such date to (b) the sum of Consolidated Funded Debt and Consolidated Net Worth
as of such date.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, lien (statutory or other) or other security interest or encumbrance
(including those created by, arising under or evidenced by any conditional sale
or other title retention agreement, the interest of a lessor under a Capital
Lease Obligation or the filing of any financing statement naming the owner of
the asset to which such lien relates as debtor, under the UCC or any comparable
law), but not including the interest of a lessor under an Operating Lease.
"Loan" means any advance made or to be made by any Bank to Borrower as
provided in Section 2, and includes each Base Rate Loan, CD Rate Loan, Offshore
Rate Loan, Competitive Loan and Committed Loan.
"Loan Documents" means, collectively, this Agreement, the Notes, any
Request for Extension of Credit, any Compliance Certificate and any other
agreements of any type or nature hereafter executed and delivered by Borrower or
any of its Subsidiaries or Affiliates to the Administrative Agent or to any Bank
in any way relating to or in furtherance of this Agreement, in each case either
as originally executed or as the same may from time to time be supplemented,
modified, amended, restated, extended or supplanted.
"Margin Stock" means "margin stock" as such term is defined in
Regulations G, T, U and X of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse change in, or a
material adverse effect upon, any of (a) the operations, business, Properties or
financial condition of Borrower and its Subsidiaries, taken as a whole; or (b)
the legality, validity, binding effect or enforceability of any Loan Document.
"Materially Underfunded Plan" means, at any time, a Plan or Plans
having aggregate Unfunded Pension Liabilities in excess of $10,000,000.
"Maturity Date" means August 19, 2002.
"Minimum Amount" means, with respect to each action described below,
the following amount set forth opposite such action:
- 19 -
<PAGE> 26
<TABLE>
<CAPTION>
Multiples
Minimum in excess of
Type of Action Amount Minimum Amount
-------------- ----------- --------------
<S> <C> <C>
Borrowing of,
prepayment of
or conversion into,
Base Rate Loans $ 5,000,000 $ 500,000
Borrowing of,
prepayment of
continuation of,
or conversion into,
Offshore Rate Loans $ 5,000,000 $ 1,000,000
Borrowing of,
prepayment of
continuation of,
or conversion into,
CD Rate Loans $ 5,000,000 $ 1,000,000
Reduction in
Commitments $ 5,000,000 $ 1,000,000
Assignments $25,000,000 n/a
</TABLE>
"Multiemployer Plan" means a "multiemployer plan" (within the meaning
of Section 4001(a)(3) of ERISA) and to which any member of the Controlled Group
makes, is making, or is obligated to make contributions or has made, or been
obligated to make, contributions, but does not include (i) Multiemployer Plans
to which no member of the Controlled Group had withdrawal liability and an
obligation to contribute at all times following the enactment of the
Multiemployer Pension Plan Amendments Act of 1980, and (ii) Multiemployer Plans
as to which all members of the Controlled Group have both completely withdrawn
and paid the full amount of any withdrawal liability.
"Net Cash Proceeds" means, in respect of any issuance of equity, the
cash proceeds received or receivable in connection therewith, net of reasonable
costs and expenses paid or incurred in connection therewith in favor of any
Person not an Affiliate of Borrower.
"Net Income" means, with respect to any fiscal period, for any Person
the consolidated net income of such Person and its consolidated Subsidiaries,
determined in accordance with GAAP.
"Notes" means, collectively, the Committed Loan Notes and the
Competitive Loan Notes.
- 20 -
<PAGE> 27
"Notice of Assignment and Acceptance" means a Notice of Assignment and
Acceptance substantially in the form of Exhibit E.
"Notice of Lien" means any "notice of lien" or similar document
intended to be filed or recorded with any court, registry, recorder's office,
central filing office or other Governmental Authority for the purpose of
evidencing, creating, perfecting or preserving the priority of a Lien securing
obligations owing to a Governmental Authority.
"Obligations" means all obligations of every kind or nature of Borrower
from time to time owed to the Administrative Agent, any Bank, any Person
entitled to indemnification, or any one or more of them, under any one or more
of the Loan Documents, whether for principal, interest, fees, expenses,
indemnification or otherwise, and whether absolute or contingent, due or to
become due, matured or unmatured, liquidated or unliquidated, now existing or
hereafter arising, pursuant to the terms of any of the Loan Documents, and
including interest that accrues after the commencement of any Insolvency
Proceeding.
"Offshore Rate" means, for each Interest Period in respect of an
Offshore Rate Loan, an interest rate per annum (rounded upward to the nearest
1/16th of 1%) determined by the Administrative Agent (whose determination shall
be conclusive in the absence of manifest error) pursuant to the following
formula:
Offshore Rate = LIBOR
-----------------------------------
1.0 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means the maximum reserve
percentage, if any (expressed as a decimal, rounded upward to the
nearest 1/100th of 1%), in effect on the date LIBOR for such Interest
Period is determined (whether or not applicable to any Bank) under
regulations issued from time to time by the Federal Reserve Board for
determining the reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency
liabilities") having a term comparable to such Interest Period; and
"LIBOR" means the rate of interest per annum determined by the
Administrative Agent as the rate of interest at which dollar deposits
in the approximate amount of the amount of BofA's Loan to be made or
- 21 -
<PAGE> 28
Continued as, or Converted into, an Offshore Rate Loan and having a
maturity comparable to such Interest Period would be offered by BofA to
major banks in the London interbank market at its request at or about
11:00 a.m. (London time) on the second Business Day prior to the
commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
"Offshore Margin Bid" has the meaning set forth in Section 2.3(b).
"Offshore Rate Loan" means a Loan bearing interest at the rate
determined by reference to the Offshore Rate.
"Operating Lease" means, as applied to any Person, any lease of
Property which is not a Capital Lease other than any such lease under which that
Person is the lessor.
"Ordinary Course Guaranty Obligations" means any Guaranty Obligations
of Borrower or any of its Subsidiaries consisting of obligations in respect of
surety bonds, letters of credit, performance bonds, leases, indemnities or
similar obligations incurred in connection with a transaction entered into in
the Ordinary Course of Business of Borrower or any of its Subsidiaries.
"Ordinary Course of Business" means, in respect of any transaction
involving Borrower or any Subsidiary of Borrower, the ordinary course of such
Person's business, as conducted by any such Person in accordance with past
practice.
"Organization Documents" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
and all applicable resolutions of the board of directors (or any committee
thereof) of such corporation relating to the foregoing or the organization of
such corporation.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Accounts Receivable Financing" means a sale or discount of
accounts receivable of Borrower and/or its Subsidiaries (a) that does not
involve the creation of a Lien or negative pledge on any accounts receivable not
so sold or discounted and (b) that does not involve in the aggregate the
- 22 -
<PAGE> 29
sale or discount of accounts receivable having a book value exceeding
$100,000,000.
"Permitted Disposition" means a Disposition of (a) inventory or other
assets sold, leased or otherwise disposed of in the Ordinary Course of Business
of Borrower or a Subsidiary, (b) Dispositions of inventory, or used, worn-out or
surplus equipment, all in the Ordinary Course of Business, (c) Dispositions of
equipment to the extent that such equipment is exchanged for credit against the
purchase price of similar replacement equipment, or the proceeds of such sale
are reasonably promptly applied to the purchase price of such replacement
equipment or where Borrower or its Subsidiary determine in good faith that the
failure to replace such equipment will not be detrimental to the business of
Borrower or its Subsidiary, (d) a Disposition to Borrower or a Subsidiary, (e)
Dispositions of accounts receivable in connection with a Permitted Accounts
Receivable Financing and (f) Dispositions identified on Schedule 7.2.
"Permitted Liens" means:
(a) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or
to the extent that non-payment thereof is permitted by Section 6.7,
provided that no Notice of Lien has been filed or recorded under the
Code;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
Ordinary Course of Business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the Property subject thereto or
which do not in the aggregate with respect to any one Property so
encumbered have a Material Adverse Effect;
(c) Liens (other than any Lien imposed by ERISA) incurred or
pledges or deposits required in the Ordinary Course of Business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
(d) (i) Liens on Property acquired by Borrower or any of its
Subsidiaries that were in existence at the time of the acquisition of
such Property and were not created in contemplation of such
acquisition; (ii) Liens existing on any asset of any person at the time
such person becomes a Subsidiary of Borrower and not
- 23 -
<PAGE> 30
created in contemplation of such event; (iii) Liens on any asset of any
person existing at the time such person is merged or consolidated with
or into Borrower or a Subsidiary of Borrower and not created in
contemplation of such event; and (iv) Liens arising out of the
refinancing, extension, renewal or refunding of any obligations secured
by any Lien permitted by this clause (d); provided that such
obligations are not increased and are not secured by any additional
assets;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the Ordinary Course of Business which do not
in any case materially detract from the value of the Property subject
thereto or interfere with the ordinary conduct of the businesses of
Borrower and its Subsidiaries;
(f) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject
to restrictions against access by Borrower in excess of those set forth
by regulations promulgated by the Federal Reserve Board, and (ii) such
deposit account is not intended by Borrower or any of its Subsidiaries
to provide collateral to the depository institution;
(g) Liens on the Property of Borrower or any of its
Subsidiaries securing (i) the performance of bids, trade contracts
(other than borrowed money), leases, statutory obligations, and (ii)
obligations on surety and appeal bonds, and (iii) other obligations of
a like nature incurred in the Ordinary Course of Business;
(h) Liens associated with a Permitted Accounts Receivable
Financing;
(i) Liens on Property or assets of a Subsidiary of Borrower to
secure indebtedness of such Subsidiary to Borrower or its Subsidiaries;
(j) Liens securing financing for all or a portion of the
purchase or construction cost of real Property acquired after the
Closing Date to be used in the Ordinary Course of the Business
(provided that any such Lien shall not encumber any other Property of
Borrower or its Subsidiaries), including Capital Lease Obligations and
the ownership by third parties of assets capitalized as finance leases
under GAAP;
- 24 -
<PAGE> 31
(k) Liens arising from purchase money financing of equipment,
including Capital Lease Obligations and the ownership by third parties
of assets capitalized as finance leases under GAAP;
(l) Liens arising in the Ordinary Course of Business in favor
of a customer, which Liens are inherent in the government contracting
process; and
(m) Liens on assets identified as "Restricted Cash" on
Borrower's balance sheet which are payable to third parties.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated organization,
business association, firm, joint venture, Governmental Authority, or other
entity.
"Plan" means an employee pension benefit plan (as defined in Section
3(2) of ERISA) which any member of the Controlled Group sponsors or maintains or
to which Borrower or member of the Controlled Group makes or is obligated to
make contributions, and which is subject to the provisions of Title IV of ERISA.
"Property" means any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"Pro Rata Share" means, with respect to each Bank, the percentage of
the combined Commitments set forth opposite the name of that Bank on Schedule
2.1.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes or
is obligated to make contributions, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding period covering at least five (5) plan years,
but excluding any Multiemployer Plan.
"Quarterly Payment Date" means each June 30, September 30, December 31
and March 31.
"Reduction Amount" means, with respect to each Reduction Date, the
amount, if any, necessary to reduce the
- 25 -
<PAGE> 32
then applicable combined Commitments to the level set forth below opposite that
Reduction Date:
<TABLE>
<CAPTION>
Maximum
Amount of Maximum
Reduction Quarterly Remaining
Dates Reduction Commitments
---------- ------------ ------------
<S> <C> <C>
9/30/1999 $ 12,500,000 $687,500,000
12/31/1999 12,500,000 675,000,000
3/31/2000 12,500,000 662,500,000
6/30/2000 12,500,000 650,000,000
9/30/2000 18,750,000 631,500,000
12/31/2000 18,750,000 612,500,000
3/31/2001 18,750,000 593,750,000
6/30/2001 18,750,000 575,000,000
9/30/2001 18,750,000 556,250,000
12/31/2001 18,750,000 537,500,000
3/31/2002 18,750,000 518,750,000
6/30/2002 18,750,000 500,000,000
Maturity Date 0
</TABLE>
provided, however, that the amount of any quarterly reduction set forth above
shall be reduced by an amount equal to the amount of any voluntary reductions in
the combined Commitments that has been previously applied against such quarterly
reduction amount pursuant to Section 2.5.
"Reduction Date" means each of the dates set forth under the heading
"Reduction Dates" in the table in the definition of "Reduction Amount."
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder for which the requirement of 30-day
notice has not been waived, a withdrawal from a Plan described in Section 4063
of ERISA, or a cessation of operations described in Section 4062(e) of ERISA.
"Request for Extension of Credit" means a written request substantially
in the form of Exhibit A, duly completed and signed by a Responsible Officer.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its Property or to which the Person or any of its Property is subject.
- 26 -
<PAGE> 33
"Requisite Banks" means (a) as of any date of determination if the
Commitments are then in effect, Banks having in the aggregate 51% or more of the
combined Commitments then in effect and (b) as of any date of determination if
the Commitments have then been terminated and there are Loans outstanding, Banks
holding Loans aggregating 51% or more of the aggregate outstanding principal
amount of the Loans.
"Requisite Notice" means, unless otherwise provided herein, (a)
irrevocable telephonic notice to the intended recipient, promptly followed by a
written notice to such Person, or (b) irrevocable written notice to the intended
recipient, in each case (x) delivered or made to such Person at the address,
telephone number or facsimile number set forth on Schedule 10.2 or as otherwise
designated by such Person by Requisite Notice to the Administrative Agent and
(y) if made by Borrower, given by a Responsible Officer. Any written notice
shall be in the form, if any, prescribed in the applicable section and may be
given by facsimile provided such facsimile is promptly confirmed by a telephone
call to such recipient.
"Requisite Time" means, with respect to any of the actions listed
below, the time set forth opposite such action on or prior to the date (the
"relevant date") set forth below (all times are California time) :
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<PAGE> 34
<TABLE>
<CAPTION>
Action Time Date
------ ---- ----
<S> <C> <C>
Borrowing of, 8:00 a.m. Relevant date
prepayment of
or conversion into,
Base Rate Loans
Borrowing of, 10:00 a.m. 3 Business Days
continuation of, prior to
prepayment of or relevant date
conversion into
Offshore Rate Loans
of 1, 2, 3 or 6 months
Borrowing of, 10:00 a.m. 5 Business Days
continuation of, prior to
prepayment of or relevant date
conversion into
Offshore Rate Loans
of 9 or 12 months
Borrowing of, 10:00 a.m. 2 Business Days
continuation of, prior to
prepayment of or relevant date
conversion into
CD Rate Loans
Voluntary Reduction 10:00 a.m. 3 Business Days
of Commitments prior to
reduction date
Funds made available by 11:00 a.m. Relevant date
Banks or Borrower to
Administrative Agent
</TABLE>
"Responsible Officer" means the chief executive officer, the president,
the chief operating officer, the chief financial officer, the chief legal
officer, the treasurer or the controller of Borrower. Any document or
certificate hereunder that is signed or executed by a Responsible Officer shall
be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of Borrower and to have acted on
behalf of Borrower.
"Subsidiary" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
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<PAGE> 35
"Synthetic Lease" means, with respect to any Person, (a) a so-called
synthetic lease, or (b) an agreement for the use or possession of property
creating obligations which do not appear on the balance sheet of such Person but
which, upon the insolvency or bankruptcy of such Person, would be characterized
as the Indebtedness of such Person (without regard to accounting treatment).
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by the Person (or, in the case of a Person other than a natural
Person, known by a Responsible Officer) making the representation, warranty or
other statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable Person in
similar circumstances would have done) would have been known by the Person (or,
in the case of a Person other than a natural Person, would have been known by a
Responsible Officer).
"type" of Loan means (a) a Base Rate Loan, (b) an Offshore Rate Loan,
(c) a CD Rate Loan, (d) a Competitive Loan bearing interest at an Absolute Rate
and (e) a Competitive Loan bearing interest based upon the Offshore Rate.
"Unfunded Pension Liabilities" means with respect to any Plan at any
time, the amount (if any) by which (a) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (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.
1.2 Performance; Time. Except as otherwise specifically provided
herein, whenever any performance obligation hereunder shall be stated to be due
or required to be satisfied on a day other than a Business Day, such performance
shall be made or satisfied on the next succeeding Business Day. In the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including"; the words "to" and "until" each mean
"to but excluding", and the word "through" means "to and including." If any
provision of this Agreement refers to any action taken or to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
interpreted to encompass any and all means, direct or indirect, of taking, or
not taking, such action.
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<PAGE> 36
1.3 Accounting Principles. Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied; provided, that, if Borrower notifies
the Administrative Agent that Borrower wishes to amend any provision hereof to
eliminate the effect of any change in GAAP (or if the Administrative Agent
notifies Borrower that the Requisite Banks wish to amend any provision hereof
for such purpose), then such provision shall be applied on the basis of GAAP in
effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such provision is amended in a manner
satisfactory to Borrower and the Requisite Banks.
1.4 Use of Defined Terms. Any defined term used in the plural shall
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the relevant class.
1.5 Rounding. Any financial ratios required to be maintained by
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.6 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
References to Schedules which have been supplemented pursuant to Section 4.2(d)
shall be to such Schedules as so supplemented.
1.7 References to "Borrower and its Subsidiaries". Any reference herein
to "Borrower and its Subsidiaries" or the like shall refer solely to Borrower
during such times, if any, as Borrower shall have no Subsidiaries.
1.8 Miscellaneous Terms. The term "or" is disjunctive; the term "and"
is conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
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<PAGE> 37
Section 2
COMMITMENTS; INTEREST, FEES, PAYMENT PROCEDURES
2.1 The Commitments.
(a) Subject to the terms and conditions set forth in this Agreement,
each Bank severally (and not jointly) agrees, to make, Convert and Continue
Committed Loans during the Availability Period as Borrower may request;
provided, however, that the aggregate principal amount of all Committed Loans
made by such Bank shall not exceed such Bank's Commitment at any time, and the
aggregate principal amount of all Committed Loans and all Competitive Loans made
by all Banks shall not exceed the combined Commitments at any time. Subject to
the foregoing and other terms and conditions hereof, Borrower may Borrow,
Convert, Continue, prepay and reborrow Committed Loans as set forth herein
without premium or penalty.
(b) Committed Loans made by each Bank shall be evidenced by one or more
loan accounts or records maintained by such Bank in the Ordinary Course of
Business. Upon the request of any Bank made through the Administrative Agent,
such Bank's Committed Loans may be evidenced by one or more Committed Loan
Notes, instead of or in addition to loan accounts. (Each such Bank may endorse
on the schedules annexed to its Committed Loan Note the date, amount and
maturity of its Committed Loans and payments with respect thereto.) Such loan
accounts, records or Notes shall be conclusive absent manifest error of the
amount of such Committed Loans and payments thereon. Any failure so to record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of Borrower to pay any amount owing with respect to the Committed
Loans.
2.2 Borrowings, Conversions and Continuations of Committed Loans.
(a) Borrower may irrevocably request a Borrowing, Conversion or
Continuation of Committed Loans in a Minimum Amount by delivering a duly
completed Request for Extension of Credit by Requisite Notice not later than the
Requisite Time. All Borrowings, Conversions or Continuations shall constitute
requests for Base Rate Loans unless properly and timely otherwise designated as
set forth in the prior sentence. If Borrower requests Offshore Rate Loans with
Interest Periods of nine or twelve months, Borrower shall request such Interest
Periods by delivering a duly completed Request for Extension of Credit therefor
by Requisite Notice not later than the Requisite Time for such a request, and
the Administrative Agent shall promptly notify each Bank of such request. Each
Bank shall promptly notify the Administrative Agent (who shall promptly notify
Borrower) whether such Bank, in its sole discretion, consents to funding an
Offshore Rate Loan for such
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<PAGE> 38
requested Interest Period(s) for such Borrowing. If any Bank does not so
consent, Offshore Rate Loans shall not be available for such Interest Period(s)
for such Borrowing.
(b) Promptly following receipt of a Request for Extension of Credit,
the Administrative Agent shall notify each Bank of its Pro Rata Share thereof by
Requisite Notice. Each Bank shall make the funds for its Loan available to the
Administrative Agent at the Administrative Agent's Office not later than the
Requisite Time on the Business Day specified in such Request for Extension of
Credit. Upon satisfaction or waiver of the applicable conditions set forth in
Section 4, all funds so received shall be made available to Borrower.
(c) The Administrative Agent shall promptly notify Borrower and the
Banks of the Offshore Rate applicable to any Offshore Rate Loan upon
determination of same.
(d) Unless the Administrative Agent and the Requisite Banks otherwise
consent, Loans with no more than 15 different Interest Periods shall be
outstanding at any one time.
(e) No Loans other than Base Rate Loans may be requested or continued
during the existence of a Default or Event of Default. During the existence of a
Default or Event of Default, the Requisite Banks may determine that any or all
of the then outstanding Committed Loans other than Base Rate Loans shall be
Converted to Base Rate Loans. Such Conversion shall be effective upon notice to
Borrower from the Administrative Agent and shall continue so long as such
Default or Event of Default continues to exist.
(f) If a Loan is to be made on the same date that another Loan is due
and payable, Borrower or the Banks, as the case may be, shall make available to
the Administrative Agent the net amount of funds giving effect to both such
Loans and the effect for purposes of this Agreement shall be the same as if
separate transfers of funds had been made with respect to each such Loan.
(g) The failure of any Bank to make any Loan on any date shall not
relieve any other Bank of any obligation to make a Loan on such date, but no
Bank shall be responsible for the failure of any other Bank to so make its Loan.
2.3 Competitive Loans.
(a) Subject to the terms and conditions hereof, at any time and from
time to time during the Availability Period, each Bank may in its sole and
absolute discretion make Competitive Loans to Borrower in such principal amounts
as Borrower may request; provided, however, that the aggregate principal amount
- 32 -
<PAGE> 39
of all Loans made by all Banks shall not exceed at any time the combined
Commitments; provided, further, that the outstanding Competitive Loans made by
any Bank may exceed its Commitment. The Competitive Loans shall be deemed to
utilize the combined Commitments by an amount equal to the aggregate outstanding
principal amount thereof.
(b) Borrower may irrevocably request Competitive Loans in a Competitive
Loan Minimum Amount therefor by delivering a duly completed Competitive Bid
Request by Requisite Notice not later than the Competitive Loan Requisite Time
therefor. Each Competitive Bid Request shall state whether a Competitive Bid is
requested on the basis of a fixed interest rate (an "Absolute Rate Bid") or on
the basis of a margin above or below the Offshore Rate (an "Offshore Margin
Bid"). Borrower may not request Competitive Bids for more than three maturities
nor request more than one type of Competitive Loan in a single Competitive Bid
Request. Unless the Administrative Agent otherwise agrees, in its sole and
absolute discretion, Borrower may not submit a Competitive Bid Request if it has
submitted another Competitive Bid Request within the prior five Business Days.
(c) No Competitive Bid Request shall be made for an Absolute Bid with a
maturity of less than 14 days or more than 180 days, for an Offshore Margin Bid
with a maturity of less than two weeks or more than six months, or in any case
with a maturity date subsequent to the Maturity Date. No more than ten different
maturities for Competitive Loans may be outstanding at any time.
(d) The Administrative Agent shall promptly notify the Banks of a
Competitive Bid Request by delivering a written copy thereof to the Banks. Each
Bank may, in its sole and absolute discretion, bid or not bid on all or a
portion of the Competitive Loans requested in such Competitive Bid Request by
delivering by Requisite Notice an irrevocable, duly completed Competitive Bid to
the Administrative Agent by the Competitive Loan Requisite Time for delivering
Competitive Bids. Any Competitive Bid received after such Competitive Loan
Requisite Time, that is in a form other than a duly completed Competitive Bid
Request, or that is otherwise not responsive to the Competitive Bid Request
shall be disregarded. A Bank may subsequently correct any Competitive Bid
containing a manifest error if it does so by the Competitive Loan Requisite Time
for delivering Competitive Bids. The Administrative Agent may, but shall not be
required to, notify any Bank of any manifest error it detects in such Bank's
Competitive Bid.
(e) The Competitive Bid Maximum offered by a Bank for any Competitive
Loan(s) requested in a Competitive Bid may be less than the principal amount of
such Competitive Loan(s)
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<PAGE> 40
requested by Borrower, but shall not be less than the Competitive Loan Minimum
Amount for any Competitive Loan for which such Bank is bidding. Each Competitive
Bid shall expire unless accepted by Borrower prior to the Competitive Loan
Requisite Time for accepting Competitive Bids.
(f) The Administrative Agent shall promptly notify Borrower of the
names of the Banks providing conforming Competitive Bids and the terms of such
Competitive Bids. Borrower may, in its sole and absolute discretion, accept or
reject any Competitive Bid, or any portion thereof, provided, that if Borrower
accepts any Competitive Bid, or any portion thereof, the following shall apply:
(i) Borrower must notify the Administrative Agent of its acceptance of any
Competitive Bids not later than the Competitive Loan Requisite Time for doing
so, (ii) Borrower must accept all Absolute Rate Bids at all lower fixed interest
rates before accepting any portion of Absolute Rate Bids at a higher fixed
interest rate, (iii) Borrower must accept all Offshore Margin Bids at all lower
margins over the Offshore Rate before accepting any portion of Offshore Margin
Bids at a higher margin over the Offshore Rate, (iv) each Competitive Loan to be
made must be in a Competitive Loan Minimum Amount therefor, (v) if two or more
Banks have submitted a Competitive Bid at the same fixed interest rate or
margin, then Borrower must accept either all of such Competitive Bids or accept
such Competitive Bids in the same proportion as the Competitive Bid Maximum of
each Bank for such Competitive Loan bears to the aggregate Competitive Bid
Maximums of all such Banks for such Competitive Loans (subject to clause (iv)
above) and (vi) Borrower may not accept Competitive Bids for an aggregate amount
in excess of the Competitive Loans requested in its Competitive Bid Request.
(g) The Administrative Agent shall promptly notify each of the Banks
whose Competitive Bid, or any portion thereof, has been accepted or rejected by
Borrower by telephone, which notification shall promptly be confirmed in
writing, delivered in person or by telecopier to such Banks. Any Competitive
Bid, or portion thereof, not timely accepted by Borrower and/or timely notified
by the Administrative Agent to a Bank as having been accepted shall be deemed
rejected.
(h) In the case of an Offshore Margin Bid, the Administrative Agent
shall determine the Offshore Rate on the date which is two Business Days prior
to the date of the proposed Competitive Loan, and shall promptly thereafter
notify Borrower and the Banks whose Offshore Margin Bids were accepted by
Borrower of such Offshore Rate.
(i) Each Bank which has had a Competitive Bid, or portion thereof,
accepted by Borrower shall make the funds for its Competitive Loan(s) available
to the Administrative Agent
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<PAGE> 41
at the Administrative Agent's Office not later than the Requisite Time for
making such funds available on the Business Day specified in such Competitive
Loan Request. Upon satisfaction or waiver of the applicable conditions set forth
in Section 4, all funds so received shall be made available to Borrower.
(j) The Administrative Agent shall notify all Banks promptly after each
Competitive Bid auction of the ranges of bids submitted and accepted for each
Competitive Loan and the aggregate amount of Competitive Loans borrowed.
(k) Each Bank's Competitive Loan shall be evidenced by that Bank's
Competitive Loan Note or by one or more loan accounts or records maintained by
such Bank in the ordinary course of business, in each case subject to Section
2.1(b).
(l) Each Competitive Loan shall be due and payable on the maturity date
of such Competitive Loan.
2.4 Prepayments.
(a) Borrower may at any time and from time to time voluntarily prepay
Committed Loans in a Minimum Amount after delivering an irrevocable Requisite
Notice not later than the Requisite Time for prepayments. The Administrative
Agent will promptly notify each Bank thereof and of such Bank's Pro Rata Share
of such prepayment. Each prepayment must be made ratably to all outstanding
Committed Loans borrowed on the same day.
(b) If for any reason the principal amount of the Loans exceeds the
Commitments as in effect or as reduced or any limitation set forth in this
Agreement, Borrower shall immediately prepay Loans sufficient to cure such
overage.
(c) Any prepayment of a Loan other than a Base Rate Loan shall be
accompanied by all accrued interest thereon, together with the costs set forth
in Section 3.5.
(d) Competitive Loans may not be prepaid.
2.5 Voluntary Reduction of Commitments. Borrower shall have the right,
at any time and from time to time, without penalty or charge, upon giving
Requisite Notice not later than the Requisite Time, voluntarily to reduce,
permanently and irrevocably, in a Minimum Amount, or to terminate, the then
unused portion of the Commitments, provided that any such reduction or
termination shall be accompanied by payment of all accrued and unpaid facility
fees with respect to the portion of the Commitments being reduced or terminated.
The Administrative Agent shall promptly notify the Banks of any reduction or
termination of the Commitments under this Section.
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<PAGE> 42
Each Bank's Commitment shall be reduced by an amount equal to such Bank's Pro
Rata Share times the amount of such reduction. Any voluntary reductions in the
Commitments shall become effective on the date requested by Borrower and shall
be applied against future Reduction Amounts on such Reduction Date as selected
by Borrower at the time of such reduction.
2.6 Mandatory Reductions in Commitments.
(a) The combined Commitments shall automatically and ratably be reduced
on each Reduction Date by the Reduction Amount applicable on such date. The
amount of any Reduction Amount shall be reduced by an amount equal to the amount
of any voluntary reductions in the Commitments that has been previously applied
against such Reduction Amount on such Reduction Date. The combined Commitments
shall be reduced to zero on the Maturity Date.
(b) All accrued facility fees to but not including the effective date
of each reduction shall be paid on the effective date thereof such reduction.
(c) If, after giving effect to any of the foregoing reductions, the
aggregate principal amount of all Committed Loans and Competitive Loans exceeds
the combined Commitments, Borrower shall immediately prepay Committed Loans in
an aggregate amount equal to such excess. Any prepayment of a Loan other than a
Base Rate Loan shall be accompanied by all accrued interest thereon, together
with the costs set forth in Section 3.5.
2.7 Principal and Interest.
(a) If not sooner paid, the outstanding principal amount of each
Committed Loan and Competitive Loan shall be due and payable on the Maturity
Date.
(b) Subject to Section 2.7(c), Borrower shall pay interest on the
unpaid principal amount of the Loans (before and after default, before and after
maturity, before and after judgment, and before and after the commencement of
any Insolvency Proceeding) from the date borrowed until paid in full (whether by
acceleration or otherwise) on each Interest Payment Date for each type of Loan
at a rate per annum equal to the applicable interest rate determined in
accordance with the definition thereof, plus, in the case of Offshore Rate Loans
and CD Rate Loans, the Applicable Amount.
(c) If any amount of principal of or interest on any Loan or any other
amount payable under any Loan Document is not paid in full when due (whether by
acceleration or otherwise), Borrower shall pay interest on such unpaid amount
from the date
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<PAGE> 43
such amount becomes due until the date such amount is paid in full, and after as
well as before any entry of judgment thereon, at a fluctuating rate of interest
rate equal to the Default Rate. Accrued and unpaid interest on past due amounts
(including, without limitation, interest on past due interest) shall be
compounded monthly, on the last day of each calendar month, to the fullest
extent permitted by Requirement of Law, and payable on demand.
2.8 Fees.
(a) Facility Fee. Borrower shall pay to the Administrative Agent, for
the account of each Bank a facility fee equal to the Applicable Amount for the
facility fee times such Bank's Pro Rata Share of the daily aggregate amount of
the combined Commitments, regardless of usage (determined daily on a per annum
basis). The facility fee under the Commitments shall accrue from the Closing
Date to but excluding the Maturity Date and shall be payable quarterly in
arrears on each Quarterly Payment Date and on the Maturity Date. The facility
fee shall be calculated quarterly in arrears; if there is any change in the
Applicable Amount during any quarter, the average daily amount shall be computed
and multiplied by the Applicable Amount separately for each period that such
Applicable Amount was in effect during such quarter.
(b) Agency Fee. Borrower shall pay to the Administrative Agent an
agency fee in such amounts and at such times as heretofore agreed upon by letter
agreement between Borrower and the Administrative Agent. The agency fee is for
the services to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The agency fee paid
to the Administrative Agent is solely for its own account and is nonrefundable.
2.9 Computation of Fees and Interest. Computations of interest on Base
Rate Loans shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed; computations of interest on
all other types of Loans and all fees under this Agreement shall be calculated
on the basis of a year of 360 days and the actual number of days elapsed, which
results in a higher yield to the Banks than a method based on a year of 365 or
366 days. Interest shall accrue on each Loan for the day on which the Loan is
made; interest shall not accrue on a Loan, or any portion thereof, for the day
on which the Loan or such portion is paid. Notwithstanding anything in this
Agreement to the contrary, interest in excess of the maximum amount permitted by
any Requirement of Law shall not accrue or be payable hereunder, and any amount
paid as interest hereunder which would otherwise be in excess of such maximum
permitted amount shall instead be treated as a payment of principal.
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<PAGE> 44
2.10 Manner and Treatment of Payments among the Banks, Borrower and the
Administrative Agent.
(a) Unless otherwise provided herein, all payments by Borrower or any
Bank hereunder shall be made to the Administrative Agent at the Administrative
Agent's Office and account in immediately available funds not later than the
Requisite Time. All payments received after the Requisite Time shall be deemed
received on the next succeeding Business Day. All payments shall be made in
immediately available funds in lawful money of the United States of America.
(b) Upon satisfaction of any applicable terms and conditions set forth
herein, the Administrative Agent shall promptly make any amounts received in
accordance with the prior subsection available in like funds received as
follows: (i) if payable to Borrower, by crediting the Designated Deposit
Account, and (ii) if payable to any Bank, by wire transfer to such Bank at the
address specified in Schedule 10.2. The Administrative Agent's determination, or
any Bank's determination not contradictory thereto, of any amount payable
hereunder shall be conclusive in the absence of manifest error.
(c) Subject to the definition of "Interest Period," if any payment to
be made by Borrower shall come due on a day other than a Business Day, payment
shall instead be considered due on the next succeeding Business Day and the
extension of time shall be reflected in computing interest and fees.
(d) Unless Borrower or any Bank has notified the Administrative Agent
prior to the date any payment to be made by it is due, that it does not intend
to remit such payment, the Administrative Agent may, in its discretion, assume
that Borrower or the Bank, as the case may be, has timely remitted such payment
and may, in its discretion and in reliance thereon, make available such payment
to the Person entitled thereto. If such payment was not in fact remitted to the
Administrative Agent, then:
(i) if Borrower failed to make such payment, each Bank shall
forthwith on demand repay to the Administrative Agent the amount of
such assumed payment made available to such Bank, together with
interest thereon in respect of each day from and including the date
such amount was made available by the Administrative Agent to such Bank
to the date such amount is repaid to the Administrative Agent at the
Federal Funds Rate; and
(ii) if any Bank failed to make such payment, such Bank shall
on the Business Day following such Borrowing Date pay to the
Administrative Agent the amount of such
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<PAGE> 45
assumed payment made available to Borrower, together with interest
thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to Borrower to the date
such amount is paid to the Administrative Agent at the Federal Funds
Rate. Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its Commitments or to prejudice any rights which
the Administrative Agent or Borrower may have against any Bank as a
result of any default by such Bank hereunder.
2.11 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Bank to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Bank that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
Section 3
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 Taxes. Each payment of any amount payable by Borrower under this
Agreement or any other Loan Document shall be made free and clear of, and
without reduction by reason of, any Applicable Taxes. To the extent that
Borrower is obligated by any Requirement of Law to make any deduction or
withholding on account of Applicable Taxes from any amount payable to any Bank
under this Agreement, Borrower shall (i) make such deduction or withholding and
pay the same to the relevant Governmental Authority and (ii) pay such additional
amount to that Bank as is necessary to result in that Bank's receiving a net
after-Applicable Tax amount equal to the amount to which that Bank would have
been entitled under this Agreement absent such deduction or withholding. If a
Bank shall become aware that receipt of such a payment resulted in an excess
payment or credit to that Bank on account of such Applicable Taxes, that Bank
shall promptly refund such excess to Borrower. In addition, if any Governmental
Authority imposes any penalties, interest or other liabilities on any Bank by
reason of Borrower failing to deduct or withhold sufficient amounts on account
of Applicable Taxes, or otherwise, Borrower shall indemnify such Bank against
such penalties, interest or other liabilities; provided, however, that Borrower
shall not be obligated to indemnify any Bank for such amounts to the extent
arising from such Bank's failure to act in good faith in promptly notifying
Borrower thereof within 45 days from the date on which such Bank became aware of
such penalties, interest or other liabilities. Payment by Borrower under this
section shall be made within 30 days from the date any Bank makes written demand
for indemnification hereunder, which demand shall set forth in reasonable detail
the calculation of the amount being requested
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<PAGE> 46
from Borrower. If a Bank shall become aware that it is entitled to receive a
refund or credit from a relevant Governmental Authority directly attributable to
Applicable Taxes as to which it has been indemnified by Borrower pursuant to
this Section, it shall promptly notify Borrower of the availability of such
refund or credit and shall, within 30 days after receipt of a request by
Borrower (whether as a result of notification that it has made to Borrower or
otherwise), make a claim to such Governmental Authority for such refund or
credit at Borrower's expense so long as making such a claim is not inconsistent
with such Bank's internal policies and is not otherwise disadvantageous to such
Bank.
3.2 Illegality.
(a) If any Bank shall determine that the introduction of any
Requirement of Law after the date hereof, or any change in any Requirement of
Law or in the interpretation or administration thereof after the date hereof,
has made it unlawful, or that any central bank or other Governmental Authority
has asserted after the date hereof that it is unlawful, for such Bank or its
Lending Office to make Offshore Rate Loans, then, on notice thereof by such Bank
to Borrower (with a copy to the Administrative Agent), the obligation of such
Bank to make Offshore Rate Loans shall be suspended until such Bank shall have
notified Borrower (with a copy to the Administrative Agent) that the
circumstances giving rise to such determination no longer exists.
(b) If any Bank shall determine that it is unlawful to maintain any
Offshore Rate Loan, Borrower shall prepay in full all Offshore Rate Loans then
outstanding, together with interest accrued thereon, either on the last day of
the Interest Period thereof if such Bank may lawfully continue to maintain such
Offshore Rate Loans to such day, or immediately, if the Bank may not lawfully
continue to maintain such Offshore Rate Loans, together with any amounts
required to be paid in connection therewith pursuant to Section 3.5.
3.3 Increased Costs and Reduction of Return. If any Bank shall
determine that, due to either (i) the introduction of or any change (other than
any change by way of imposition of or increase in reserve requirements included
in the calculation of the CD Rate or the Offshore Rate) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law, provided that if such guideline or
request does not have the force of law, compliance therewith is customary for
banks regulated in a manner similar to such Bank), after the date hereof, there
shall be any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Offshore
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<PAGE> 47
Rate Loans or CD Rate Loans, then Borrower shall be liable for, and shall from
time to time, within 10 Business Days after demand therefor by such Bank, pay to
such Bank additional amounts as are sufficient to compensate such Bank for such
increased costs.
3.4 Capital Adequacy. If any Bank shall determine that (a) the
introduction after the date hereof of any Capital Adequacy Regulation, (b) any
change after the date hereof in any Capital Adequacy Regulation, (c) any change
after the date hereof in the interpretation or administration of any Capital
Adequacy Regulation by any central bank or other Governmental Authority charged
with the interpretation or administration thereof, or (d) compliance by such
Bank (or its Lending Office) or any corporation controlling such Bank, with any
Capital Adequacy Regulation; affects or would affect the amount of capital
required or expected to be maintained by such Bank or any corporation
controlling such Bank and (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy and such Bank's desired
return on capital) determines that the amount of such capital is increased as a
consequence of its Commitments, Loans, credits or obligations under this
Agreement, then, within 10 Business Days after demand of such Bank, Borrower
shall upon demand pay to such Bank, from time to time as specified by such Bank,
additional amounts sufficient to compensate such Bank for such increase.
3.5 Breakfunding Costs. Borrower agrees to reimburse each Bank and to
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of: (a) the failure of Borrower to make any payment or
prepayment of principal of any Offshore Rate Loan (including payments made after
any acceleration thereof); (b) the failure of Borrower to Borrow, Continue or
Convert an Offshore Rate Loan or a CD Rate Loan after Borrower has given a
Request for Extension of Credit; (c) the failure of Borrower to make any
prepayment of an Offshore Rate Loan or a CD Rate Loan after Borrower has given a
notice in accordance with Section 2.5; (d) if caused by Borrower or as a result
of any acceleration of the Loans by reason of a Default or Event of Default, the
prepayment of an Offshore Rate Loan or a CD Rate Loan on a day which is not the
last day of the Interest Period with respect thereto; or (e) if caused by
Borrower or required by the Requisite Banks pursuant to Section 2.2(e), the
Conversion of any Offshore Rate Loan or CD Rate Loan to a Base Rate Loan on a
day that is not the last day of the respective Interest Period; including any
such loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain its Offshore Rate Loans or CD Rate Loans hereunder or
from fees payable to terminate the deposits from which such funds were obtained.
Solely for purposes of calculating amounts payable
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<PAGE> 48
by Borrower to a Bank under this Section, (i) each Offshore Rate Loan (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the LIBOR used in determining the Offshore Rate
for such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded, and (ii) each CD
Rate Loan made by each Bank (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at the
Certificate of Deposit Rate used in determining the CD Rate for such CD Rate
Loan by the issuance of its certificate of deposit in a comparable amount and
for a comparable period, whether or not such CD Rate Loan is in fact so funded.
3.6 Inability to Determine Rates. If the Requisite Banks shall have
advised the Agent of the Requisite Banks' determination that for any reason
adequate and reasonable means do not exist for ascertaining the Offshore Rate
for any requested Interest Period with respect to a proposed Offshore Rate Loan
or CD Rate Loan or that the Offshore Rate or CD Rate applicable pursuant to
Section 2.7(b) for any requested Interest Period with respect to a proposed
Offshore Rate Loan or CD Rate Loan does not adequately and fairly reflect the
cost to such Bank of funding such Loan, the Administrative Agent will forthwith
give notice of such determination to Borrower. Thereafter, the obligation of the
Banks to make or maintain CD Rate Loans or Offshore Rate Loans, as the case may
be, hereunder shall be suspended until the Requisite Banks revoke such notice in
writing to Borrower and the Administrative Agent; provided, however, that no
outstanding CD Rate Loan or Offshore Rate Loan shall be terminated prior to the
expiration of the Interest Period unless required by law. Upon receipt of such
notice, Borrower may revoke any Request for Extension of Credit then submitted
by it. If Borrower does not revoke such notice, each Bank shall make, Convert or
Continue its Offshore Rate Loan, as proposed by Borrower, in the amount
specified in the applicable notice submitted by Borrower, but such Loans shall
be made, Converted or Continued as Base Rate Loans instead of CD Rate Loans or
Offshore Rate Loans.
3.7 Matters Applicable to all Requests for Compensation.
(a) Borrower shall not be required to compensate any Bank under Section
3.3 or 3.4 for amounts allocable to any period more than 30 days prior to the
date that such Bank initially notifies Borrower that it intends to claim
compensation under such Sections; provided, however, that if such claim relates
to any cost or increase that has been retroactively imposed upon such Bank,
Borrower shall be required to compensate such Bank for amounts allocable to the
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<PAGE> 49
period since the date such cost or increase was so imposed upon such Bank,
provided that such Bank notifies Borrower that it intends to claim such
compensation within 60 days of such retroactive cost or increase having been
imposed.
(b) The Administrative Agent and any Bank shall provide reasonable
detail to Borrower regarding the manner in which the amount of any payment to
the Administrative Agent or that Bank under this Section 3 has been determined,
concurrently with demand for such payment. The Administrative Agent's or any
Bank's determination of any amount payable under this Section 3 shall be
conclusive in the absence of manifest error.
(c) For purposes of calculating amounts payable under this Section 3
any Loans shall be deemed to have been funded at the underlying applicable
interest rate set forth in the definition thereof whether or not such Loans was,
in fact, so funded.
(d) All of Borrower's obligations under this Section 3 shall survive
termination of the Commitments and payment in full of all Loans.
(e) Upon (i) Borrower becoming obligated for any taxes with respect to
any Bank pursuant to Section 3.1, (ii) any Bank making a claim for compensation
under Section 3.3 or Section 3.4), or (iii) any Bank invoking Section 3.6, such
Bank, upon not less than 10 Business Days' Requisite Notice from Borrower (with
a copy to the Administrative Agent), shall execute and deliver a Notice of
Assignment and Acceptance covering that Bank's Pro Rata Share in favor of such
Eligible Assignee as Borrower may designate, subject to payment in full by such
Eligible Assignee of all principal, interest, compensation, fees and other
amounts owing to such Bank through the date of assignment, including without
limitation all amounts owing under this Section 3. Upon the removal of any Bank,
it shall be released from all obligations and liabilities under any Loan
Document. An assignment pursuant to this Section shall be governed by the
provisions of Section 10.5 other than the Minimum Amount limitation therein
contained. Alternatively, Borrower may, upon 10 Business Days' notice to the
Administrative Agent (who shall notify each Bank) reduce the combined
Commitments by an amount equal to that Bank's Pro Rata Share (and, for this
purpose, no Minimum Amounts shall apply), and in connection therewith, deliver
to the Administrative Agent for the account of such Bank, the amounts, described
in the first sentence above and release such Bank from its Pro Rata Share.
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Section 4
CONDITIONS
4.1 Conditions Precedent to Closing Date. The effectiveness of this
Agreement is subject to the condition that the Administrative Agent shall have
received on or before the Closing Date all of the following, in form and
substance satisfactory to all Banks:
(a) Credit Agreement. This Agreement executed by Borrower, the
Administrative Agent and all Banks;
(b) Notes. If requested by a Bank, Notes executed by Borrower in favor
of such Bank;
(c) Resolutions; Incumbency of Borrower. (i) Copies of the resolutions
of the board of directors of Borrower approving and authorizing the execution,
delivery and performance by Borrower of the Agreement and the other Loan
Documents to be delivered by Borrower hereunder, and authorizing the borrowing
of the Loans, certified as of the Closing Date by the Secretary or an Assistant
Secretary of Borrower and (ii) a certificate of the Secretary or Assistant
Secretary of Borrower certifying the names and true signatures of the officers
of Borrower authorized to execute, deliver and perform the Loan Documents to be
delivered by Borrower hereunder;
(d) Articles of Incorporation; By-Laws and Good Standing of Borrower.
Each of the following documents: (i) the articles or certificate of
incorporation of Borrower as in effect on the Closing Date, certified by the
Secretary of State of the state of incorporation of Borrower as of a recent
date, and the bylaws of Borrower as in effect on the Closing Date, certified by
the Secretary or Assistant Secretary of Borrower as of the Closing Date; and
(ii) a good standing certificate for Borrower from the Secretary of State of
Delaware as of a recent date;
(e) Opinion of Counsel. An opinion of corporate counsel and addressed
to the Administrative Agent and the Banks substantially in the form of Exhibit
F;
(f) Officer's Certificate. A certificate of a Responsible Officer dated
the Closing Date certifying that (i) the representations and warranties
contained in Section 5 are true and correct in all material respects, (ii) no
Default or Event of Default has occurred and is continuing, and (iii) there has
occurred since January 31, 1997, no event or circumstance that could reasonably
be expected to result in a Material Adverse Effect;
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<PAGE> 51
(g) Payment of Agency Fee. The agency fees payable on the Closing Date
shall have been paid; and
(h) Other Documents. Such other approvals, opinions or documents as the
Banks may reasonably request by notice to Borrower prior to the Closing Date.
4.2 Conditions Precedent to Effective Date. The obligation of each Bank
to make its initial Extension of Credit hereunder is subject to the condition
that all conditions precedent set forth in Section 4.1 have been satisfied or
waived by the Administrative Agent, and the Administrative Agent shall have
received on or before the Effective Date all of the following, in form and
substance satisfactory to the Administrative Agent:
(a) Completion of Bellcore Acquisition.
(i) Evidence that the Bellcore Acquisition is being, or
concurrently herewith is being, completed on the Effective Date
substantially in accordance with the Bellcore Purchase Agreement,
which, except as set forth in Schedule 4.2(a)(i), is in substantially
the form of such documents previously provided to the Administrative
Agent, and, except as set forth in Schedule 4.2(a)(i), the Bellcore
Acquisition is being completed substantially in accordance with the
terms of the Bellcore Purchase Agreement without any material waiver or
amendment not consented to by the Banks; provided that changes to
schedules 4.3(a), 4.3(c), 4.7, 4.8, 4.9(a) and 4.10 to the Bellcore
Purchase Agreement shall not be deemed material for purposes of this
subsection. The Bellcore Purchase Agreement is in full force and effect
and, to Borrower's knowledge, no party is in default thereunder. All
necessary or required material approvals, consents, exemptions,
authorizations, and other actions by, or notices to, or filings with,
all Governmental Authorities in connection with the completion of the
Bellcore Acquisition have been obtained;
(ii) after giving effect to the Bellcore Acquisition: (A) the
representations and warranties contained in Section 5 are true and
correct in all material respects, (B) no Default or Event of Default
has occurred and is continuing or would result therefrom, and (C) there
has occurred since January 31, 1997, no event or circumstance that
could reasonably be expected to result in a Material Adverse Effect;
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(iii) before and after giving effect to the Bellcore
Acquisition, no Bellcore Material Adverse Effect has occurred; and
(iv) no legal or arbitral proceedings shall be pending or
threatened by or before any Governmental Authority with respect to the
Bellcore Acquisition that seeks to enjoin, restrict or prevent the
Bellcore Acquisition or otherwise to impose materially adverse
conditions upon the Bellcore Acquisition or upon Borrower or its
Subsidiaries after consummation of the Bellcore Acquisition;
(b) Officer's Certificate re Bellcore Acquisition. A certificate of a
Responsible Officer dated the Effective Date:
(i) attaching thereto, to the extent not previously delivered
to the Administrative Agent, a true, correct and complete copy of the
Bellcore Purchase Agreement; and
(ii) stating that the matters set forth in Section 4.2(a) are
true and correct;
(c) Termination of Existing Agreements. Evidence that Borrower has
terminated, or concurrently with the initial funding hereunder will be
terminating, all commitments under Existing Agreements and shall have paid all
amounts owing to the banks thereunder;
(d) Supplements to Schedules. Supplements to Schedule 5.7 (ERISA
Plans), Schedule 5.12 (Subsidiaries) and Schedule 7.1 (Existing Liens)
reflecting the Bellcore Acquisition; and
(e) Payment of Attorney Costs. All Attorney Costs of the Administrative
Agent in connection with the preparation of the Loan Documents payable pursuant
to Section 10.4, and invoiced to Borrower prior to the Effective Date, shall
have been paid.
4.3 Any Extensions of Credit. The obligation of each Bank to
make any Extension of Credit is subject to the satisfaction of the following
conditions precedent on the relevant date:
(a) Request for Extension of Credit. The Administrative Agent shall
have timely received a duly completed Request for Extension of Credit by
Requisite Notice by the Requisite Time;
(b) Continuation of Representations and Warranties. Except for the
representations and warranties set forth in
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Sections 5.6(b), 5.10(b) and 5.12 (which shall be made solely as of the Closing
Date and the Effective Date), the representations and warranties made by
Borrower contained in Section 5 shall be true and correct in all material
respects on and as of such borrowing date with the same effect as if made on and
as of such date; and
(c) No Existing Default. No Default or Event of Default shall exist or
shall result from such Extension of Credit.
Each Request for Extension of Credit shall constitute a representation and
warranty by Borrower, as of the date of each such Request and as of the date of
each Extension of Credit that the conditions in this Section 4.3 are satisfied.
Section 5
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Administrative Agent and the
Banks that:
5.1 Corporate Existence and Power. Borrower and each of its corporate
Subsidiaries: (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; (b) has the
corporate power and authority and all governmental licenses, authorizations,
consents and approvals to own its assets, carry on its business and execute,
deliver, and perform its obligations, if any, under, the Loan Documents; (c) is
duly qualified as a foreign corporation, licensed and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of Property or
the conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not have a Material Adverse
Effect; and (d) is in compliance with every Requirement of Law except where such
noncompliance would not have a Material Adverse Effect.
5.2 Corporate Authorization; No Contravention. The execution, delivery
and performance by Borrower of each Loan Document to which it is a party, have
been duly authorized by all necessary corporate action, and do not and will not:
(a) contravene the terms of any of Borrower's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, any document evidencing any material Contractual Obligation to
which Borrower is a party or any order, injunction, writ or decree of any
Governmental Authority to which Borrower or its
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Property is subject; or (c) violate any Requirement of Law applicable to
Borrower.
5.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by Borrower of any Loan Document to which it
is a party, other than routine filings required to be made by Borrower in the
ordinary course of business after the date hereof.
5.4 Binding Effect. Each Loan Document to which Borrower is a party
constitutes the legal, valid and binding obligations of Borrower, enforceable
against Borrower in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
5.5 Litigation. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of Borrower, threatened, at law, in
equity, in arbitration or before any Governmental Authority, against Borrower,
its Subsidiaries or any of their respective Properties which: (a) purport to
affect or pertain to this Agreement, or any other Loan Document, or any of the
transactions contemplated hereby or thereby; or (b) have a reasonable
possibility of an adverse decision which would have a Material Adverse Effect.
No injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority against Borrower
purporting to enjoin or restrain the execution, delivery and performance of this
Agreement or any other Loan Document, or directing that the transactions
provided for herein or therein not be consummated as herein or therein provided.
5.6 No Event of Default.
(a) No Event of Default exists or would result from the incurring of
any Obligations by Borrower.
(b) Neither Borrower nor any of its Subsidiaries is in default under or
with respect to any Contractual Obligation in any respect which, individually or
together with all such defaults, would reasonably be expected to have a Material
Adverse Effect.
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5.7 ERISA Compliance.
(a) Schedule 5.7 lists all Plans maintained or sponsored by Borrower or
to which it is obligated to contribute, and separately identifies Plans intended
to be Qualified Plans and Multiemployer Plans. Each Plan other than a
Multiemployer Plan is in compliance, and, with respect to each Multiemployer
Plan, Borrower has no knowledge that such Multiemployer Plan is not in
compliance, in all material respects with the applicable provisions of ERISA,
the Code and other Federal or applicable state law that is not preempted by
ERISA. Each Qualified Plan has been determined by the Internal Revenue Service
("IRS") to qualify under Section 401 of the Code, and the trusts created
thereunder have been determined to be exempt from tax under the provisions of
Section 501 of the Code, and to the best knowledge of Borrower nothing has
occurred which would cause the loss of such qualification or tax-exempt status.
(b) There is no outstanding liability (excluding PBGC premiums due but
not delinquent under Section 4001 of ERISA) under Title IV of ERISA with respect
to any Plan maintained or sponsored by Borrower or any ERISA Affiliate (as to
which Borrower is or may reasonably be expected to be liable), nor with respect
to any Plan to which Borrower or any ERISA Affiliate (wherein Borrower is or may
be liable) contributes or is obligated to contribute, which would reasonably be
expected to have a Material Adverse Effect. None of the Qualified Plans has
Unfunded Pension Liabilities as to which Borrower is or may be liable, and which
would reasonably be expected to have a Material Adverse Effect.
(c) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan maintained or sponsored by Borrower or to which Borrower is
obligated to contribute and as to which Borrower is or may reasonably be
expected to be liable, and which would reasonably be expected to have a Material
Adverse Effect. There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, other than routine claims for benefits
in the usual and ordinary course, asserted or instituted against (i) any Plan
maintained or sponsored by Borrower or its assets, (ii) any member of the
Controlled Group with respect to any Qualified Plan of Borrower, or (iii) any
fiduciary with respect to any Plan for which Borrower may be directly or
indirectly liable, through indemnification obligations or otherwise which in
each case would reasonably be expected to have a Material Adverse Effect.
Borrower has not transferred any Unfunded Pension Liability outside of the
Controlled Group or otherwise engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA which has a reasonable likelihood of having a
Material Adverse Effect.
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5.8 Regulations G, T, U and X. No part of the proceeds of any Loan
hereunder will be used to purchase or carry, or to extend credit to others for
the purpose of purchasing or carrying, any Margin Stock in violation of
Regulations G, T, U and X.
5.9 Taxes. Borrower and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
material Federal and other taxes, assessments, fees and other governmental
charges levied or imposed upon them or their Properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP.
5.10 Financial Condition.
(a) The audited consolidated financial statements of financial
condition of Borrower and its Subsidiaries dated January 31, 1997, and the
related consolidated statements of operations, shareholders' equity and cash
flows for the Fiscal Year ended on that date: (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (ii) are complete and accurate in all
material respects and fairly present, in all material respects, the financial
condition of Borrower and its consolidated Subsidiaries as of the date thereof
and results of operations for the period covered thereby.
(b) Since January 31, 1997, there has been no Material Adverse Effect.
5.11 Environmental Matters.
(a) To the knowledge of the Responsible Officers of Borrower, the
on-going operations of Borrower and each of its Subsidiaries comply in all
respects with all Environmental Laws, except such non-compliance which would not
reasonably be likely to have a Material Adverse Effect. To the knowledge of the
Responsible Officers of Borrower, Borrower and each of its Subsidiaries have
obtained all licenses, permits, authorizations and registrations required under
any Environmental Law ("Environmental Permits") necessary for its ordinary
course operations, all such Environmental Permits are in good standing, and
Borrower and each of its Subsidiaries are in compliance with all material terms
and conditions of such Environmental Permits, except where the failure to obtain
or maintain such Environmental Permits or such noncompliance would not be
reasonably likely to have a Material Adverse Effect.
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5.12 Subsidiaries. As of the Closing Date and the Effective Date,
Borrower has no Subsidiaries other than those specifically disclosed on Schedule
5.12.
5.13 Insurance. The material real Properties of Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies (except to the extent self-insurance is permitted pursuant to Section
6.6), in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar Properties in localities where Borrower or such Subsidiary operates.
5.14 Full Disclosure. No written information furnished to the
Administrative Agent or any Bank by Borrower contains any untrue statement of a
material fact or omits any material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they are made, not misleading on and as of the date of such written
information.
5.15 Public Utility Holding Company Act; Investment Company Act.
Borrower is not a "holding company", or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended. Borrower is not and is not required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.16 Title to Properties. Borrower and each of its Subsidiaries has
good and marketable title to, or valid leasehold interests in, all real Property
necessary or used in the ordinary conduct of its business, except for Liens
permitted by Section 7.1 and for such defects in title as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 6
AFFIRMATIVE COVENANTS
So long as any principal of, or interest on, any Loan or fee due
hereunder remains unpaid, or any portion of the Commitments remains in force:
6.1 Financial Statements. Borrower shall deliver to the Administrative
Agent, with sufficient copies for each Bank:
(a) as soon as available, but not later than 120 days after the end of
each Fiscal Year, a copy of the audited consolidated balance sheet of Borrower
and its Subsidiaries as at the end of such year and the related statements of
income and cash flows for such Fiscal Year, setting forth in each case
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in comparative form the figures for the previous year, and accompanied by the
opinion of Price Waterhouse or another nationally-recognized independent public
accounting firm which report shall state that such consolidated financial
statements present fairly, in all material respects, the financial position of
Borrower and its Subsidiaries for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years. Such opinion shall not be
qualified or limited because of a restricted or limited examination by such
accountant of any material portion of Borrower's or any Subsidiary's records;
(b) as soon as available, but not later than 60 days after the end of
each of the first three Fiscal Quarters of each year, a copy of the unaudited
consolidated balance sheet of Borrower and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income and cash flows
for the period commencing on the first day and ending on the last day of such
quarter, setting forth the financial position and the results of operations of
Borrower and its Subsidiaries in conformity with GAAP applied on a basis
consistent with prior years, subject to changes resulting from audit and normal
year-end adjustments;
(c) as soon as available, but not later than 120 days after the end of
each Fiscal Year, a copy of the unaudited consolidating balance sheet of
Bellcore as at the end of such year and the related consolidating statements of
income and cash flows for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous year; and
(d) as soon as available, but not later than 60 days after the end of
each of the first three Fiscal Quarters of each year, a copy of the unaudited
consolidating balance sheet of Bellcore as of the end of such quarter and the
related consolidating statements of income and cash flows for the period
commencing on the first day and ending on the last day of such quarter, setting
forth the financial position and the results of operations of Bellcore, subject
to changes resulting from audit and normal year-end adjustments.
6.2 Certificates; Other Information. Borrower shall deliver to the
Administrative Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements referred
to in Sections 6.1(a), 6.1(b), 6.1(c) and 6.1(d), a Compliance Certificate
signed by a Responsible Officer; and
(b) promptly, such additional business, financial, corporate affairs
and other information in form and detail
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satisfactory to the Agent and the Requisite Banks as the Administrative Agent,
at the request of any Bank, may from time to time reasonably request.
6.3 Notices. Promptly upon a Responsible Officer of Borrower becoming
aware of the same, Borrower shall promptly notify the Administrative Agent (who
shall notify each Bank):
(a) of the occurrence of any Default or Event of Default;
(b) of any dispute, litigation, investigation, proceeding or suspension
which may exist at any time between Borrower or any of its Subsidiaries and any
Governmental Authority or any Person which would reasonably be expected to have
a Material Adverse Effect;
(c) upon, but in no event later than 10 days after, a Responsible
Officer becoming aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against
Borrower, any of its Subsidiaries or any of their respective Properties pursuant
to any applicable Environmental Laws, and (ii) any other material Environmental
Claims, which in the case of clauses (i) and (ii) would reasonably be expected
to have a Material Adverse Effect;
(d) of any ERISA Event affecting Borrower or any member of its
Controlled Group (but in no event more than ten days after such ERISA Event)
together with (i) a copy of any notice with respect to such ERISA Event that may
be required to be filed with the PBGC and (ii) any notice delivered by the PBGC
to Borrower or any member or its Controlled Group with respect to such ERISA
Event;
(e) any public announcement of any change in the Pricing Ratings; and
(f) of any material change in accounting policies or financial
reporting practices by Borrower or any of its Subsidiaries.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of Borrower setting forth details of the
occurrence referred to therein, and stating what action (if any is required)
Borrower proposes to take with respect thereto.
6.4 Preservation of Corporate Existence, Etc. Borrower shall, and shall
cause Bellcore to, preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
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incorporation and preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business the non-preservation of which
would reasonably be expected to have a Material Adverse Effect; provided that
nothing herein shall prevent to the extent not otherwise prohibited by the
provisions of Section 7.2 or 7.3, a consolidation or merger of Borrower or
Bellcore.
6.5 Maintenance of Property. Borrower shall, and shall cause Bellcore
to, maintain and preserve all its Property which is used or useful in its
business in good working order and condition, ordinary wear and tear excepted,
in Borrower's reasonable judgment the non-maintenance or non-preservation of
which would reasonably be expected to have a Material Adverse Effect; provided
that nothing in this Section shall require the making of any repair or
replacement of or to any particular Property that would not be required in the
exercise of sound business judgment.
6.6 Insurance. Borrower shall, and shall cause each of its Subsidiaries
to, maintain with financially sound and reputable independent insurers,
insurance with respect to its Properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons; including workers' compensation
insurance, public liability and Property and casualty insurance; provided that
Borrower or any of its Subsidiaries may self-insure to the extent that it
maintains adequate reserves therefor and self-insurance is customary and prudent
in its business judgment.
6.7 Compliance with Laws. Borrower shall, and shall cause each of its
Subsidiaries to, comply, in all material respects with any Requirement of Law of
any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such Requirement of Law
the non-compliance with which would not be reasonably expected to have a
Material Adverse Effect.
6.8 Inspection of Property and Books and Records. Borrower shall, and
shall cause each of its Subsidiaries to, maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of Borrower and such Subsidiaries. Borrower
shall permit, and shall cause each of its Subsidiaries to permit,
representatives and independent contractors of the Administrative Agent or any
Bank to visit and inspect any of their respective Properties, to examine their
respective corporate, financial and operating records,
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and make copies thereof or abstracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective directors, officers, and
independent public accountants (provided that Borrower may, if it chooses, be
present at any such discussions) at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to Borrower; provided that the foregoing shall be subject to compliance with
applicable security regulations of any Governmental Authority and shall not
require Borrower to permit inspection of any Properties or financial or
operating records to an extent that would require Borrower or any of its
Subsidiaries to reveal any of its trade secrets, research data or proprietary
information which its management in good faith believes to be irrelevant to this
Agreement.
6.9 Environmental Laws. Borrower shall, and shall cause each of its
Subsidiaries to, conduct its operations and keep and maintain its Properties in
compliance with all Environmental Laws, except for such non-compliance as would
not reasonably be expected to have a Material Adverse Effect.
6.10 Use of Proceeds. Borrower shall use the proceeds of the Loans to
fund the purchase price of the Bellcore Acquisition and related expenses and for
working capital and other general corporate purposes not in contravention of any
Requirement of Law.
Section 7
NEGATIVE COVENANTS
So long as any principal of, or interest on, any Loan or fee due
hereunder remains unpaid, or any portion of the Commitments remains in force,
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
7.1 Liens, Negative Pledges. Make, create, incur, assume or suffer to
exist any Lien of any nature upon or with respect to any of their respective
Properties, whether now owned or hereafter acquired, except:
(a) Liens securing Indebtedness and other obligations existing on the
Closing Date, and, in the case of Liens securing Indebtedness and other
obligations in excess of $250,000 set forth in Schedule 7.1, and any Lien
securing any Indebtedness permitted hereunder that replaces any such Lien
provided that such replacement Lien does not encumber any additional Property;
(b) Liens securing Indebtedness and other obligations of Bellcore
existing on the Effective Date and, in the case of
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Liens securing Indebtedness in excess of $250,000 set forth in a supplement to
Schedule 7.1, and any Lien securing any Indebtedness permitted hereunder that
replaces any such Lien provided that such replacement Lien does not encumber any
additional Property;
(c) Liens consisting of judgment or judicial attachment liens, provided
that the enforcement of such Liens is effectively stayed and all such liens in
the aggregate at any time outstanding for Borrower and its Subsidiaries do not
exceed $10,000,000;
(d) Liens securing obligations not exceeding $100,000,000 in the
aggregate on (i) the assets of single purpose Subsidiaries and (ii) assets of
Borrower or any of its Subsidiaries incurred in connection with and related
solely to the toll collection business;
(e) Permitted Liens;
(f) Liens in connection with Synthetic Leases permitted under Section
7.5; and
(g) Liens not otherwise permitted by the foregoing clauses of this
Section provided that the aggregate amount of indebtedness or other obligations
secured by such other Liens permitted by this subsection (g) does not at any
time exceed an amount equal to 15% of Consolidated Net Worth.
7.2 Dispositions. Make any Disposition of its Property, whether now
owned or hereafter acquired, except for:
(a) Permitted Dispositions;
(b) any Disposition consisting of a merger or consolidation permitted
pursuant to Section 7.3; and
(c) Dispositions not otherwise permitted hereunder which are made for
fair market value not exceeding $50,000,000 in the aggregate in any Fiscal Year;
provided, that at the time of any such Disposition, no Event of Default shall
exist or shall result from such Disposition.
7.3 Mergers. Merge or consolidate with or into any Person, except:
(a) any Subsidiary may merge with Borrower, provided that Borrower
shall be the continuing or surviving corporation, or with any one or more
Subsidiaries of Borrower;
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(b) any Subsidiary of Borrower may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to Borrower or a Subsidiary of
Borrower; and
(c) Borrower may merge with another corporation, provided that Borrower
shall be the surviving corporation, and that after giving effect to such merger,
no Default or Event of Default shall then have occurred or exist.
7.4 Limitation on Guaranty Obligations. Create, incur, assume, suffer
to exist, or otherwise be liable with respect to, any Guaranty Obligations,
except for:
(a) guaranties of employee loans not exceeding $5,000,000 in aggregate
principal amount outstanding at any time;
(b) Guaranty Obligations consisting of bid and performance bonds for
the benefit of third parties not exceeding $150,000,000 in aggregate principal
amount at any time;
(c) Ordinary Course Guaranty Obligations; and
(d) other Guaranty Obligations not exceeding 15% of Consolidated Net
Worth.
The Guaranty Obligations limited by this Section 7.4 shall not include claims
for refunds or the imposition of charges made by customers of Borrower and its
Subsidiaries based on unsatisfactory work by Borrower or any of its Subsidiaries
in the Ordinary Course of Business, except that such claims shall be included,
and shall be taken into account, with respect to the other covenants set forth
in this Section 7 when recognized as liabilities on Borrower's balance sheet in
accordance with GAAP.
7.5 Synthetic Leases. Create, incur, assume, suffer to exist, or
otherwise be liable, directly or indirectly, with respect to, any Synthetic
Leases, except for Synthetic Leases related to Real Property having a value
(determined at the time of each transaction) not exceeding $175,000,000 in
aggregate amount at any time.
7.6 Compliance with ERISA. To the extent an event or condition
specified in this Section has a reasonable likelihood of having a Material
Adverse Effect, (a) terminate any Plan subject to Title IV of ERISA, (b) permit
to exist any ERISA Event, (c) enter into any new Plan or modify any existing
Plan so as to increase its obligations thereunder except in the Ordinary Course
of Business or (d) permit the existence of Unfunded Pension Liabilities.
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<PAGE> 64
7.7 Consolidated Net Worth. Permit its Consolidated Net Worth at any
time to be less than $448,000,000 plus 50% of each Fiscal Year's Net Income (but
without reduction for any losses in any Fiscal Year) for each Fiscal Year
commencing February 1, 1997 plus 75% of the Net Cash Proceeds of any material
corporate stock offering through an acquisition or private or public equity
offering after the Closing Date (other than from Net Cash Proceeds received from
employees' and pension plans' customary quarterly stock purchases).
7.8 Leverage Ratio. Permit at any time the Leverage Ratio to be greater
than the ratio set forth below opposite such Fiscal Quarter or the period during
which such Fiscal Quarter ends:
<TABLE>
<CAPTION>
Maximum
Period Ratio
------ -------
<S> <C>
Closing Date through
January 31, 1998 0.70 to 1.00
February 1, 1998 through
January 31, 1999 0.65 to 1.00
February 1, 1999 through
January 31, 2000 0.60 to 1.00
February 1, 2000 and
thereafter 0.55 to 1.00
</TABLE>
7.9 Annualized Interest Coverage Ratio. Permit the Annualized Interest
Coverage Ratio to be less than 3.50 to 1.00 at any time.
7.10 Bellcore Funded Debt Ratio. Permit at any time the Bellcore Funded
Debt Ratio to exceed 1.75 to 1:00.
7.11 Accounting Changes. Make any significant change in accounting
treatment or reporting practices, except as required or permitted by GAAP, or
change the Fiscal Year of Borrower or of any of its consolidated Subsidiaries.
7.12 Change in Nature of Business. Make any material change in the
nature of the business of Borrower and its Subsidiaries, taken as a whole.
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Section 8
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
8.1 Events of Default. The existence or occurrence of any one or more
of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Non-Payment. Borrower fails to pay, (i) within one day after the
same shall become due, any amount of principal of any Loan, or (ii) within five
days after the same shall become due, any interest on any Loan, fee or any other
amount payable hereunder or pursuant to any other Loan Document; or
(b) Representation or Warranty. Any material representation or warranty
by Borrower made or deemed made herein, in any Loan Document, or which is
contained in any certificate, document or financial or other statement by
Borrower, any of its Subsidiaries, or their respective Responsible Officers,
furnished at any time under this Agreement, or in or under any Loan Document,
shall prove to have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) Specific Defaults. Borrower fails to perform or observe any term,
covenant or agreement contained in Section 7.3, 7.7, 7.8, 7.9 or 7.10; or
(d) Other Defaults. Borrower fails to perform or observe any other
term, covenant or agreement contained in any Loan Document not specifically
mentioned in this Section 8.1 and, such default shall continue unremedied for a
period of 30 days after notice by the Administrative Agent thereof; or
(e) Cross Default. Borrower or any of its Subsidiaries (i) fails to
make any payment in respect of any Indebtedness (other than non-recourse
Indebtedness) owing to any Person (other than the Obligations hereunder) when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) having an aggregate principal amount (including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$25,000,000; or (ii) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist, under any agreement
or instrument relating to any such Indebtedness having an aggregate principal
amount (including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $25,000,000, if the effect of such
failure, event or condition is to cause, or to permit the holder or holders of
such Indebtedness or
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beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated maturity;
or
(f) Insolvency; Voluntary Proceedings. Borrower or any of its material
Subsidiaries, (i) ceases or fails to be solvent or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding
is commenced or filed against Borrower or any of its material Subsidiaries, or
any writ, judgment, warrant of attachment, execution or similar process, in each
case relating to an Insolvency Proceeding, is issued or levied against a
substantial part of Borrower's or any material Subsidiary's Properties, and any
such proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy; (ii)
Borrower or any of its material Subsidiaries admits the material allegations of
a petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) Borrower or any of its material Subsidiaries acquiesces in the appointment
of a receiver, trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor), or other similar Person for itself or a
substantial portion of its Property or business; or
(h) ERISA. Any of the following events or conditions occurs or exists
which has a reasonable likelihood of having a Material Adverse Effect: (i)
Borrower or an ERISA Affiliate shall fail to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its
withdrawal liability under a Multiemployer Plan; (ii) Borrower or an ERISA
Affiliate shall fail to satisfy its contribution requirements under Section
412(c)(11) of the Code, whether or not it has sought a waiver under Section
412(d) of the Code; (iii) an ERISA Event; (iv) the IRS shall have determined
that a Plan that is intended to be qualified under Section 401(a) of the Code is
not qualified; or (v) the occurrence of any combination of events listed in
clauses (iii) through (iv) that involves a net increase in aggregate Unfunded
Pension Liabilities and other liabilities; or
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<PAGE> 67
(i) Monetary Judgments. One or more final (non-interlocutory)
judgments, orders or decrees shall be entered against Borrower or any of its
Subsidiaries, involving in the aggregate a liability (not fully covered by
independent third-party insurance and for which the relevant insurer has
acknowledged liability) as to any single or related series of transactions,
incidents or conditions, of $25,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 30 days after
the entry thereof or such later time as may be provided for the filing of an
appeal; or
(j) Change in Control. (i) Any Person (other than a Plan or Plans) or
two or more Persons (other than a Plan or Plans) acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities and Exchange Act of
1934, as amended), directly or indirectly, of securities of Borrower (or other
securities convertible into such securities) representing 20% or more of the
combined voting power of all securities of Borrower entitled to vote in the
election of directors, other than securities having such power only by reason of
the happening of a contingency; or (ii) individuals who at the beginning of any
two year period constituted Borrower's Board of Directors cease for any reason
to constitute a majority of directors then in office.
8.2 Remedies Upon Event of Default. Without limiting any other rights
or remedies of the Administrative Agent or the Banks provided for elsewhere in
this Agreement, or the other Loan Documents, or by any Requirement of Law, or in
equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 8.1(f) or 8.1(g),
the Requisite Banks may request the Administrative Agent to, and the
Administrative Agent thereupon shall, terminate the Commitments and/or declare
all or any part of the unpaid principal of all Loans, all interest accrued and
unpaid thereon and all other amounts payable under the Loan Documents to be
forthwith due and payable, whereupon the same shall become and be forthwith due
and payable, without protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by Borrower.
(b) Upon the occurrence of any Event of Default described in Section
8.1(f) or 8.1(g), the Commitments and all other obligations of the
Administrative Agent or the Banks and all rights of Borrower under the Loan
Documents shall terminate without notice to or demand upon Borrower, which are
expressly waived by Borrower and the unpaid principal of all Loans, all
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interest accrued and unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of which are
expressly waived by Borrower.
(c) Upon the occurrence of any Event of Default, the Administrative
Agent shall, at the request of the Requisite Banks, or may with the consent of
the Requisite Banks, without notice to (except as expressly provided for in any
Loan Document) or demand upon Borrower, which are expressly waived by Borrower
(except as to notices expressly provided for in any Loan Document), proceed to
protect, exercise and enforce the rights and remedies of the Administrative
Agent and the Banks under the Loan Documents against Borrower and such other
rights and remedies as are provided by Requirement of Law or equity.
(d) The rights provided for in this Agreement and the other Loan
Documents are cumulative and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement not existing or hereafter arising.
(e) The order and manner in which the Banks' rights and remedies are to
be exercised shall be determined by the Requisite Banks in their sole
discretion, and all payments received by the Administrative Agent and the Banks,
or any of them, shall be applied first to the costs and expenses (including
reasonable Attorneys Costs incurred by the Administrative Agent and the Banks),
and thereafter paid pro rata to the Banks in the same proportions that the
aggregate Obligations owed to each Bank under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to all the Banks, without
priority or preference among the Banks. Regardless of how each Bank may treat
payments for the purpose of its own accounting, for the purpose of computing
Borrower's Obligations hereunder, payments shall be applied first, to the costs
and expenses of the Administrative Agent and the Banks, as set forth above,
second, to the payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due under each of the
Loan Documents), and third, to the payment of all other amounts (including
principal and fees) then owing to the Administrative Agent or the Banks under
the Loan Documents. No application of payments will cure any Event of Default,
or prevent acceleration, or continued acceleration, of amounts payable under the
Loan Documents, or prevent the exercise, or continued exercise, of rights or
remedies of the Banks hereunder or thereunder or under any Requirement of Law or
in equity.
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Section 9
THE ADMINISTRATIVE AGENT
9.1 Appointment and Authorization. Subject to Section 9.7, each Bank
hereby irrevocably appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms thereof or
are reasonably incidental, as determined by the Administrative Agent, thereto.
This appointment and authorization is intended solely for the purpose of
facilitating the servicing of the Loans and does not constitute appointment of
the Administrative Agent as trustee for any Bank or as representative of any
Bank for any other purpose and, except as specifically set forth in the Loan
Documents to the contrary, the Administrative Agent shall take such action and
exercise such powers only in an administrative and ministerial capacity.
9.2 Administrative Agent and Affiliates. Bank of America National Trust
and Savings Association (and each successor Administrative Agent) has the same
rights and powers under the Loan Documents as any other Bank and may exercise
the same as though it were not the Administrative Agent, and the term "Bank" or
"Banks" includes Bank of America National Trust and Savings Association in its
individual capacity. Bank of America National Trust and Savings Association (and
each successor Administrative Agent) and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust or other
business with Borrower, any Subsidiary thereof, or any Affiliate of Borrower or
any Subsidiary thereof, as if it were not the Administrative Agent and without
any duty to account therefor to the Banks. Bank of America National Trust and
Savings Association (and each successor Administrative Agent) need not account
to any other Bank for any monies received by it for reimbursement of its costs
and expenses as Administrative Agent hereunder, or for any monies received by it
in any other capacity. The Administrative Agent shall not be deemed to hold a
fiduciary relationship with any Bank and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
9.3 Banks' Credit Decisions. Each Bank agrees that it has,
independently and without reliance upon the Administrative Agent, any other Bank
or the directors, officers, agents, employees or attorneys of the Administrative
Agent or of any other Bank, and instead in reliance upon information supplied to
it by or on behalf of Borrower and upon such other information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this
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Agreement. Each Bank also agrees that it shall, independently and without
reliance upon the Administrative Agent, any other Bank or the directors,
officers, agents, employees or attorneys of the Administrative Agent or of any
other Bank, continue to make its own independent credit analyses and decisions
in acting or not acting under the Loan Documents.
9.4 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default, the Administrative Agent may assume that no Default has
occurred and is continuing, unless the Administrative Agent (or the Bank that is
then the Administrative Agent) has received notice from Borrower stating the
nature of the Default or has received notice from a Bank stating the nature of
the Default and that such Bank considers the Default to have occurred and to be
continuing.
(b) The Administrative Agent has only those duties under the Loan
Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan Documents
and as long as the Administrative Agent may assume that no Event of Default has
occurred and is continuing, the Administrative Agent may, but shall not be
required to, exercise its discretion to act or not act, except that the
Administrative Agent shall be required to act or not act upon the instructions
of the Requisite Banks (or of all the Banks, to the extent required by Section
10.1) and those instructions shall be binding upon the Administrative Agent and
all the Banks, provided that the Administrative Agent shall not be required to
act or not act if to do so would be contrary to any Loan Document or to any
applicable Requirement of Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the Administrative
Agent.
(d) If the Administrative Agent has received a notice specified in
subsection (a), the Administrative Agent shall immediately give notice thereof
to the Banks and shall act or not act upon the instructions of the Requisite
Banks, or of all the Banks, as required hereunder, provided that the
Administrative Agent shall not be required to act or not act if to do so would
be contrary to any Loan Document or to any applicable Requirement of Law or
would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent, and except that if
the Requisite Banks, or all the Banks, if required hereunder, fail, for five
Business Days after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent, in its sole
discretion, may act or not act as it deems advisable for the protection of the
interests of the Banks.
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(e) The Administrative Agent shall have no liability to any Bank for
acting, or not acting, as instructed by the Requisite Banks, or all the Banks,
if required hereunder, notwithstanding any other provision hereof.
9.5 Liability of Administrative Agent. Neither the Administrative Agent
nor any of its directors, officers, agents, employees or attorneys shall be
liable for any action taken or not taken by them under or in connection with the
Loan Documents, except for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat any Bank as a Bank until the Administrative Agent
receives notice of the assignment or transfer thereof, in form satisfactory to
the Administrative Agent, signed by the payee, and may treat each Bank as the
owner of that Bank's interest in the Obligations for all purposes of this
Agreement until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent, signed by
that Bank.
(b) May consult with legal counsel (including in-house legal counsel),
accountants (including in-house accountants) and other professionals or experts
selected by it, or with legal counsel, accountants or other professionals or
experts for Borrower and/or their Subsidiaries or the Banks, and shall not be
liable for any action taken or not taken by it in good faith in accordance with
any advice of such legal counsel, accountants or other professionals or experts.
(c) Shall not be responsible to any Bank for any statement, warranty or
representation made in any of the Loan Documents or in any notice, certificate,
report, request or other statement (written or oral) given or made in connection
with any of the Loan Documents.
(d) Except to the extent expressly set forth in the Loan Documents,
shall have no duty to ask or inquire as to the performance or observance by
Borrower or its Subsidiaries of any of the terms, conditions or covenants of any
of the Loan Documents or to inspect the Property, books or records of Borrower
or its Subsidiaries.
(e) Will not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency or
value of any Loan Document, any other instrument or writing furnished pursuant
thereto or in connection therewith.
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(f) Will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, request or
other instrument or writing believed by it to be genuine and signed or sent by
the proper party or parties.
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by Borrower or any Subsidiary or Affiliate
thereof or paid or payable to or received or receivable from any Bank under any
Loan Document, including, without limitation, principal, interest, facility
fees, Loans and other amounts; provided that, promptly upon discovery of such an
error in computation, the Administrative Agent, the Banks and (to the extent
applicable) Borrower and/or its Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to restore the parties to
the position that they would have occupied had the error not occurred.
9.6 Indemnification. Each Bank shall, ratably in accordance with its
Pro Rata Share (if the Commitments are then in effect) or in accordance with its
proportion of the aggregate outstanding Loans (if the Commitments have then been
terminated), indemnify and hold the Administrative Agent and its Affiliates,
directors, officers, agents, employees and attorneys harmless against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(including, without limitation, Attorneys Costs that may be imposed on, incurred
by or asserted against it or them in any way relating to or arising out of the
Loan Documents (other than Loan losses incurred by reason of the failure of
Borrower to pay the Loans) or any action taken or not taken by it as
Administrative Agent thereunder, except such as result from its own gross
negligence or willful misconduct. Without limitation on the foregoing, each Bank
shall reimburse the Administrative Agent upon demand for that Bank's Pro Rata
Share of any out-of-pocket cost or expense incurred by the Administrative Agent
in connection with the negotiation, preparation, execution, delivery, amendment,
waiver, restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
Borrower is required by Section 10.4 to pay that cost or expense but fails to do
so upon demand. Nothing in this Section 9.6 shall entitle the Administrative
Agent to recover any amount from the Banks if and to the extent that such amount
has theretofore been recovered from Borrower or any of its Subsidiaries. To the
extent that the Administrative Agent is later reimbursed such cost or expense by
Borrower or any of its Subsidiaries, it shall return the amounts paid to it by
the Banks in respect of such cost or expense.
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9.7 Successor Administrative Agent. The Administrative Agent may, and
at the request of the Requisite Banks shall, resign as Administrative Agent upon
30 days' notice to the Banks and Borrower. If the Administrative Agent shall
resign as Administrative Agent under this Agreement, the Borrower shall appoint
from among the Banks a successor Administrative Agent for the Banks, unless an
Event of Default has occurred and is continuing, in which case such successor
administrative agent shall be selected from among the Banks by the Requisite
Banks. If no successor Administrative Agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Banks and Borrower, a successor
administrative agent from among the Banks. Upon the acceptance of its
appointment as successor administrative agent hereunder, such successor
Administrative Agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent" shall mean
such successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 9, and Sections 10.4 and
10.16 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as a successor
administrative agent is appointed as provided for above.
9.8 No Obligations of Borrower. Nothing contained in this Section 9
shall be deemed to impose upon Borrower any obligation in respect of the due and
punctual performance by the Administrative Agent of its obligations to the Banks
under any provision of this Agreement, and Borrower shall have no liability to
the Administrative Agent or any of the Banks in respect of any failure by the
Administrative Agent or any Bank to perform any of its obligations to the
Administrative Agent or the Banks under this Agreement. Without limiting the
generality of the foregoing, where any provision of this Agreement relating to
the payment of any amounts due and owing under the Loan Documents provides that
such payments shall be made by Borrower to the Administrative Agent for the
account of the Banks, Borrower's obligations to the Banks in respect of such
payments shall be deemed to be satisfied upon the making of such payments to the
Administrative Agent in the manner provided by this Agreement.
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9.9 Documentation Agent; Syndication Agent. None of the Banks
identified on the facing page or signature pages of this Agreement as
Documentation Agent or Syndication Agent shall have any right, power,
obligation, liability or responsibility or duty under this Agreement other than
those applicable to all Banks as such. Without limiting the foregoing, none of
the Banks so identified shall have or be deemed to have any fiduciary relations
with any Bank. Each Bank acknowledges that it has not relied, and will not rely,
on any of the Banks so identified in deciding to enter into this Agreement or in
taking any action hereunder.
Section 10
MISCELLANEOUS
10.1 Amendments; Consents. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrower therefrom, may in any event be effective unless in writing
signed by the Requisite Banks (and, in the case of any amendment, modification
or supplement of or to any Loan Document to which Borrower is a party, signed by
Borrower and, in the case of any amendment, modification or supplement affecting
the rights and duties of the Administrative Agent, signed by the Administrative
Agent), and then only in the specific instance and for the specific purpose
given; and, without the approval in writing of each Bank affected thereby, no
amendment, modification, supplement, termination, waiver or consent may be
effective:
(a) To decrease the principal of, or the amount of principal, principal
prepayments or the rate of interest payable on, any Loan, or to increase the
amount of the Commitment or the Pro Rata Share of such Bank, or to decrease the
amount of any facility fee payable to such Bank, or any other fee or amount
payable to such Bank under the Loan Documents or to waive an Event of Default
consisting of the failure of Borrower to pay when due principal, interest or any
facility fee;
(b) To postpone any date fixed for any payment of principal of,
prepayment of principal of or any installment of interest on, any Loan or any
installment of any facility fee, or to extend the term of the Commitments;
(c) To amend the provisions of the definition of "Requisite Banks,"
Section 4 or this Section; or
(d) To amend any provision of this Agreement that expressly requires
the consent or approval of all the Banks.
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Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section shall apply equally to, and shall be binding upon, all the Banks
and the Administrative Agent.
10.2 Notices. Except as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for therein shall be given by Requisite Notice and shall be effective
as follows:
<TABLE>
<CAPTION>
Effective on earlier of
Mode of Delivery actual receipt and:
---------------- -----------------------
<S> <C>
Courier On scheduled delivery date
Facsimile When transmission complete
Mail Fourth Business Day after
deposit in U.S. mail
Personal delivery When received
Telephone When answered
</TABLE>
provided, however, that notice to the Administrative Agent pursuant to Section 2
or 9 shall not be effective until actually received by the Administrative Agent.
The Administrative Agent and any Bank shall be entitled to rely and act on any
notice purportedly given by or on behalf of Borrower even if such notice (i) was
not made in a manner specified herein, (ii) was incomplete, or (iii) was not
preceded or followed by any other notice specified herein or the terms of such
notice as understood by the recipient varied from any subsequent related notice
provided for herein. Borrower shall indemnify the Administrative Agent and any
Bank from any loss, cost, expense or liability as a result of relying on any
notice permitted herein.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Bank or the Administrative Agent, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, powers,
privileges and remedies of the Administrative Agent and the Banks provided
herein or other Loan Document are cumulative and not exclusive of any right,
power, privilege or remedy provided by any Requirement of Law or equity. The
terms and conditions of Section 9 are inserted for the sole benefit of the
Administrative Agent and the Banks; the same may be waived in whole or in part,
with or without
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terms or conditions, in respect of any Loan without prejudicing the
Administrative Agent's or the Banks' rights to assert them in whole or in part
in respect of any other Loan.
10.4 Costs and Expenses. Borrower shall, whether or not the
transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Administrative Agent within five Business Days
after demand for all reasonable costs and expenses incurred by the
Administrative Agent in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including the reasonable Attorney Costs incurred by the Administrative
Agent with respect thereto; and
(b) pay or reimburse the Administrative Agent and each Bank after
demand for all reasonable costs and expenses incurred by it in connection with
the enforcement after a Default or Event of Default, or preservation of any
rights or remedies (including in connection with any "workout" or restructuring
regarding the Loans, and including in any Insolvency Proceeding or appellate
proceeding) under this Agreement, any other Loan Document, and any such other
documents, including reasonable Attorney Costs incurred by the Administrative
Agent and any Bank.
10.5 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which Borrower is a
party will be binding upon and inure to the benefit of Borrower, the
Administrative Agent, each of the Banks, and their respective successors and
assigns, except that Borrower may not assign its rights hereunder or thereunder
or any interest herein or therein without the prior written consent of all the
Banks. Any Bank may at any time pledge its Note or any other instrument
evidencing its rights as a Bank under this Agreement to a Federal Reserve Bank,
but no such pledge shall release that Bank from its obligations hereunder or
grant to such Federal Reserve Bank the rights of a Bank hereunder absent
foreclosure of such pledge.
(b) From time to time following the Closing Date, each Bank may assign
to one or more Eligible Assignees all or any portion of its Pro Rata Share;
provided that (i) such Eligible Assignee, if not then a Bank or an Affiliate of
the assigning Bank, shall be approved by each of the Administrative Agent and
Borrower (neither of which approvals shall be unreasonably withheld or delayed;
it being understood that it shall not be
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deemed unreasonable to withhold such consent if based solely on the desire to
avoid the payment of additional costs or taxes), (ii) a copy of a Notice of
Assignment and Acceptance shall be delivered to the Administrative Agent, (iii)
except in the case of an assignment to an Affiliate of the assigning Bank, to
another Bank or of the entire remaining Commitment of the assigning Bank, the
assignment shall not assign a Pro Rata Share which is equivalent to less than
the Minimum Amount therefor, and (iv) the effective date of any such assignment
shall be as specified in the Notice of Assignment and Acceptance, but not
earlier than the date which is five Business Days after the date the
Administrative Agent has received the Notice of Assignment and Acceptance. Upon
acceptance by the Administrative Agent of such Notice Assignment and Acceptance,
the Eligible Assignee named therein shall be a Bank for all purposes of this
Agreement, with the Pro Rata Share therein set forth and, to the extent of such
Pro Rata Share, the assigning Bank shall be released from its further
obligations under this Agreement. Borrower agrees that it shall execute and
deliver upon request (against delivery by the assigning Bank to Borrower of any
Note) to such assignee Bank, one or more Notes evidencing that assignee Bank's
Pro Rata Share, and to the assigning Bank if requested, one or more Notes
evidencing the remaining balance Pro Rata Share retained by the assigning Bank.
(c) By executing and delivering a Notice of Assignment and Acceptance,
the Eligible Assignee thereunder acknowledges and agrees that: (i) other than
the representation and warranty that it is the legal and beneficial owner of the
Pro Rata Share being assigned thereby free and clear of any adverse claim, the
assigning Bank has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the assigning Bank has made no representation or
warranty and assumes no responsibility with respect to the financial condition
of Borrower or the performance by Borrower of the Obligations; (iii) it has
received a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 6.1 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) it will,
independently and without reliance upon the Administrative Agent or any 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 action
under this Agreement; (v) it appoints and authorizes the Administrative Agent to
take such action and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by
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this Agreement; and (vi) it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Bank.
(d) After receipt of a completed Notice of Assignment and Acceptance,
and receipt of an assignment fee of $3,500 from such Eligible Assignee, the
Administrative Agent shall, promptly following the effective date thereof,
provide to Borrower and the Banks a revised Schedule 10.2 giving effect thereto.
(e) Each Bank may from time to time grant participations to one or more
banks or other financial institutions (including another Bank) in a portion of
its Pro Rata Share; provided, however, that (i) such Bank's obligations under
this Agreement shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other financial institutions shall not be a
Bank hereunder for any purpose except, if the participation agreement so
provides, for the purposes of Section 3 but only to the extent that the cost of
such benefits to Borrower does not exceed the cost which Borrower would have
incurred in respect of such Bank absent the participation, (iv) Borrower, the
Administrative Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement, (v) the participation shall not restrict an increase in
the Commitments or in the granting Bank's Pro Rata Share, so long as the amount
of the participation interest is not affected thereby and (vi) the consent of
the holder of such participation interest shall not be required for amendments
or waivers of provisions of the Loan Documents other than those which (A) extend
the Maturity Date as to such participant or any other date upon which any
payment of money is due to such participant, (B) reduce the rate of interest
owing to such participant, any fee or any other monetary amount owing to such
participant or (C) reduce the amount of any installment of principal owing to
such participant.
10.6 Sharing of Setoffs. Each Bank severally agrees that if it, through
the exercise of any right of setoff, banker's lien or counterclaim against
Borrower or otherwise, receives payment of the Obligations held by it that is
ratably more than all Extensions of Credit (including Competitive Loans) made by
any other Bank, through any means, then, subject to any applicable Requirement
of Law: (a) the Bank exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from the other Banks a participation in
the Obligations held by the other Banks and shall pay to the other Banks a
purchase price in an amount so
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<PAGE> 79
that the share of the Obligations held by each Bank after the exercise of the
right of setoff, banker's lien or counterclaim or receipt of payment shall be in
the same proportion that existed prior to the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment; and (b) such other
adjustments and purchases of participations shall be made from time to time as
shall be equitable to ensure that all of the Banks share any payment obtained in
respect of the Obligations ratably in accordance with each Bank's share of the
Obligations immediately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker's lien, counterclaim or
otherwise is thereafter recovered from the purchasing Bank by Borrower or any
Person claiming through or succeeding to the rights of Borrower, the purchase of
a participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Bank that
purchases a participation in the Obligations pursuant to this Section shall from
and after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Bank were the original owner of the Obligations purchased. Borrower expressly
consent to the foregoing arrangements and agree that any Bank holding a
participation in an Obligation so purchased may, to the fullest extent permitted
by any applicable Requirement of Law, exercise any and all rights of setoff,
banker's lien or counterclaim with respect to the participation as fully as if
the Bank were the original owner of the Obligation purchased.
10.7 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement in any number of separate counterparts, each of which,
when so executed, shall be deemed an original, and all of said counterparts
taken together shall be deemed to constitute but one and the same instrument. A
set of the copies of this Agreement signed by all the parties shall be lodged
with Borrower and the Administrative Agent.
10.8 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.9 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of Borrower, the Administrative
Agent and the Banks, and their permitted successors and assigns, and no other
Person shall be
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a direct or indirect legal beneficiary of, or have any direct or indirect cause
of action or claim in connection with, this Agreement or any of the other Loan
Documents. Neither the Administrative Agent nor any Bank shall have any
obligation to any Person not a party to this Agreement or other Loan Documents.
10.10 Time. Time is of the essence as to each term or provision of this
Agreement and each of the other Loan Documents.
10.11 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE PARTIES HERETO SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND
ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA
OR OF THE UNITED STATES FOR THE CENTRAL DISTRICT OF CALIFORNIA, COUNTY OF LOS
ANGELES AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER CONSENTS TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. BORROWER IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY REQUIREMENT OF LAW, ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. BORROWER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
10.12 WAIVER OF JURY TRIAL. BORROWER, THE BANKS AND THE ADMINISTRATIVE
AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE AGENT-RELATED PERSON, PARTICIPANT
OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
BORROWER, THE BANKS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO
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<PAGE> 81
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.13 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding between Borrower, the
Administrative Agent and the Banks, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof, and any prior arrangements made with
respect to the payment by Borrower of (or any indemnification for) any fees,
costs or expenses payable to or incurred (or to be incurred) by or on behalf of
the Administrative Agent or any Bank.
10.14 Interpretation. This Agreement is the result of negotiations
between and has been reviewed by counsel to the Administrative Agent, the Banks,
Borrower and other parties, and is the product of all parties hereto.
Accordingly, this Agreement and the other Loan Documents shall not be construed
against the Administrative Agent or any Bank merely because of the
Administrative Agent's or any Bank's involvement in the preparation of such
documents and agreements.
10.15 Nature of Banks' Obligations. The obligations of the Banks
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the
Administrative Agent or the Banks or any of them pursuant hereto or thereto may,
or may be deemed to, make the Banks a partnership, an association, a joint
venture or other entity, either among themselves or with Borrower or any
Affiliate of Borrower. Each Bank's obligation to make any Loan pursuant hereto
is several and not joint or joint and several. A default by any Bank will not
increase the Pro Rata Share attributable to any other Bank. Any Bank not in
default may, if it desires, assume in such proportion as the nondefaulting Banks
agree the obligations of any Bank in default, but is not obligated to do so. The
Administrative Agent agrees that it will use its best efforts either to induce
the other Banks to assume the obligations of a Bank in default or to obtain
another Bank, reasonably satisfactory to Borrower, to replace such a Bank in
default.
10.16 Indemnity by Borrower. Borrower agrees to indemnify, save and
hold harmless the Administrative Agent and each Bank and their respective
Affiliates, directors, officers, agents, attorneys and employees (collectively
the "Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action (except a claim, demand, action, or cause of action for Bank
Taxes) if the claim, demand, action or cause of action arises out of or relates
to any act or omission (or alleged act or omission) of Borrower, its Affiliates
or any of their officers, directors or
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stockholders relating to the Commitments, the use or contemplated use of
proceeds of any Loan, or the relationship of Borrower and the Banks under this
Agreement; (b) any administrative or investigative proceeding by any
Governmental Authority or any litigation commenced by a private party against
the Borrower or any Affiliate which requests the discovery of documents or the
production of witnesses by the Administrative Agent or any Bank ; and (c) any
and all liabilities, losses, costs or expenses (including reasonable Attorneys
Cost of any Indemnitee and other professional services) that any Indemnitee
suffers or incurs as a result of the assertion of any foregoing claim, demand,
action or cause of action; provided that no Indemnitee shall be entitled to
indemnification for any loss caused by its own gross negligence or willful
misconduct or for any loss asserted against it by another Indemnitee.
10.17 Nonliability of the Banks. Borrower acknowledges and agrees that
the relationship between Borrower and the Administrative Agent and the Banks is,
and shall at all times remain, solely that of borrowers and lenders; neither the
Administrative Agent nor the Banks shall under any circumstance be construed to
be partners or joint venturers of Borrower or its Affiliates; neither the
Administrative Agent nor the Banks shall under any circumstance be deemed to be
in a relationship of confidence or trust or a fiduciary relationship with
Borrower or its Affiliates, or to owe any fiduciary duty to Borrower or its
Affiliates; neither the Administrative Agent nor the Banks undertake or assume
any responsibility or duty to Borrower or its Affiliates to select, review,
inspect, supervise, pass judgment upon or inform Borrower or its Affiliates of
any matter in connection with its Property or the operations of Borrower or its
Affiliates; Borrower and its Affiliates shall rely entirely upon their own
judgment with respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by the
Administrative Agent or the Banks in connection with such matters is solely for
the protection of the Administrative Agent and the Banks and neither Borrower
nor any other Person is entitled to rely thereon.
10.18 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Bank not to require payment of any interest
(including Default Interest), fee, cost or other amount payable under any Loan
Document, or to calculate any amount payable by a particular method, on any
occasion shall in no way limit or be deemed a waiver of the Administrative
Agent's or such Bank's right to require full payment of any interest (including
Default Interest), fee, cost or other amount payable under any Loan Document, or
to calculate an amount payable by another method that is not
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inconsistent with this Agreement, on any other or subsequent occasion.
10.19 Headings. Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and are not part of
this Agreement or the other Loan Documents for any other purpose.
10.20 Foreign Banks and Participants. Each Bank, and each holder of a
participation interest herein, that is a "foreign corporation, partnership or
trust" within the meaning of the Code shall deliver to the Administrative Agent,
(a) within 20 days after the Closing Date, or (b) prior to accepting an
assignment or receiving a participation interest herein, two duly signed
completed copies of either Form 1001 (relating to such Person and entitling it
to a complete exemption from withholding on all payments to be made to such
Person by Borrower pursuant to this Agreement) or Form 4224 (relating to all
payments to be made to such Person by Borrower pursuant to this Agreement) of
the United States Internal Revenue Service or such other evidence (including, if
reasonably necessary, Form W-8 or W-9) satisfactory to Borrower and the
Administrative Agent that no withholding under the federal income tax laws is
required with respect to such Person. Thereafter and from time to time, each
such Person shall (a) promptly submit to the Administrative Agent two such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
Borrower and the Administrative Agent of any available exemption from, United
States withholding taxes in respect of all payments to be made to such Person by
Borrower pursuant to this Agreement and (b) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Bank, and
as may be reasonably necessary (including the re-designation of its Lending
Office, if any) to avoid any Requirement of Law that Borrower make any deduction
or withholding for taxes from amounts payable to such Person. If such Persons
fails to timely deliver the above forms or other documentation, then the
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction. If any Governmental Authority asserts that
the Administrative Agent did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall indemnify the
Administrative Agent therefor, including all penalties and interest and costs
and expenses (including reasonable Attorneys Fees of the Administrative Agent.
The obligation of the Banks under this
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Section shall survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
10.21 Confidentiality. Each Bank agrees to hold any confidential
information that it may receive from Borrower pursuant to this Agreement in
confidence, except for disclosure: (a) to a Bank's Affiliates; (b) to other
Banks and their Affiliates; (c) to legal counsel and accountants for Borrower or
any Bank; (d) to other professional advisors to Borrower or any Bank, provided
that the recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section; (e) to regulatory officials
having jurisdiction over that Bank; (f) as required by any Requirement of Law or
legal process or in connection with any legal proceeding to which that Bank and
Borrower is adverse parties; and (g) to another financial institution in
connection with a disposition or proposed disposition to that financial
institution of all or part of that Bank's interests hereunder or a participation
interest in its Loans, provided that the recipient has agreed to treat such
information confidentially on a basis similar to the foregoing. For purposes of
the foregoing, "confidential information" shall mean any information respecting
Borrower or its Subsidiaries reasonably considered by Borrower to be
confidential, other than (i) information previously filed with any Governmental
Authority and available to the public, (ii) information previously published in
any public medium from a source other than, directly or indirectly, that Bank,
and (iii) information previously disclosed by Borrower to any Person on a non-
confidential basis. Nothing in this Section shall be construed to create or give
rise to any fiduciary duty on the part of the Administrative Agent or the Banks
to Borrower.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
a Delaware corporation
By: /s/ DANIEL W. BALDWIN
-------------------------------------
Daniel W. Baldwin
Senior Vice President
and Treasurer
S - 1
<PAGE> 86
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ LORI KANNEGIETER
------------------------------------
Lori Kannegieter
Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By: /s/ LORI KANNEGIETER
------------------------------------
Lori Kannegieter
Managing Director
S - 2
<PAGE> 87
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ DEBRA H. IMHOF
-------------------------------------
Title: Vice President
----------------------------------
S - 3
<PAGE> 88
CITICORP USA, INC. (CUSA)
By: /s/ WALTER LARSEN
-------------------------------------
Title: Attorney-in-Fact
----------------------------------
S - 4
<PAGE> 89
THE BANK OF NEW YORK
By: /s/ REBECCA K. LEVINE
-------------------------------------
Title: Vice President
----------------------------------
S - 5
<PAGE> 90
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ S.E. GODDARD
-------------------------------------
Title: Assistant V.P.
----------------------------------
S - 6
<PAGE> 91
THE CHASE MANHATTAN BANK
By: /s/ RICHARD C. SMITH
-------------------------------------
Title: Vice President
----------------------------------
S - 7
<PAGE> 92
THE FUJI BANK, LIMITED, LOS
ANGELES AGENCY
By: /S/ M. SUKUDA
-------------------------------------
Title: Joint General Manager
----------------------------------
S - 8
<PAGE> 93
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ VINCENT L. TIMIRAOS
-------------------------------------
Title: Senior V.P. and Senior Mgr.
----------------------------------
S - 9
<PAGE> 94
NATIONSBANK OF TEXAS, N.A.
By: /s/ MICHAEL M. SHAFROTH
-------------------------------------
Title: Senior V.P.
----------------------------------
S - 10
<PAGE> 95
ROYAL BANK OF CANADA
By: /s/ MICHAEL A. COLE
-------------------------------------
Title: Manager
----------------------------------
S - 11
<PAGE> 96
WACHOVIA BANK, N.A.
By: /S/ TODD J. EAGLE
-------------------------------------
Title: Vice President
----------------------------------
S - 12
<PAGE> 97
THE DAI-ICHI KANGYO BANK,
LTD., LOS ANGELES AGENCY
By: /s/ MAGATSUGU MORISHITA
-------------------------------------
Title: Sr. V.P. and Joint General Mgr.
----------------------------------
S - 13
<PAGE> 98
MELLON BANK, N.A.
By: /S/ EDWIN H. WIEST
-------------------------------------
Title: First Vice President
----------------------------------
S - 14
<PAGE> 99
THE BANK OF NOVA SCOTIA
By: /S/ WERNER TILLINGER
-------------------------------------
Title: Relationship Mgr.
----------------------------------
S - 15
<PAGE> 100
DEUTSCHE BANK AG
NEW YORK AND/OR CAYMAN ISLANDS
BRANCHES
By: /s/ RALF HOFFMAN
-------------------------------------
Title: Vice President
----------------------------------
By: /s/ JEAN M. HANNIGAN
-------------------------------------
Title: Vice President
----------------------------------
S - 16
<PAGE> 101
THE FIRST NATIONAL BANK OF
MARYLAND
By: /S/ CAROL A. DALTON
-------------------------------------
Title: Vice President
----------------------------------
S - 17
<PAGE> 102
THE NORTHERN TRUST COMPANY
By: /s/ JOHN E. BURDA
-------------------------------------
Title: Second V.P.
----------------------------------
S - 18
<PAGE> 103
THE SANWA BANK, LIMITED, LOS
ANGELES BRANCH
By: /S/ GILL S. REALON
-------------------------------------
Title: Vice President
----------------------------------
S - 19
<PAGE> 104
EXHIBIT A
REQUEST FOR EXTENSION OF CREDIT
Date: _________________, _____
To: Bank of America National Trust and
Savings Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (Multi-Year
Facility) dated as of August 20, 1997 among Science Applications International
Corporation, a Delaware corporation (the "Borrower"), the banks from time to
time party thereto, and Bank of America National Trust and Savings Association,
as Administrative Agent (as extended, renewed, amended or restated from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined).
The undersigned hereby requests a (select one):
______ Borrowing of Committed Loans
______ Conversion or Continuation of Committed Loans
1. On ___________________, 19__
2. In the amount of $____________________.
3. Comprised of _______________________________
[type of Loan requested]
4. If applicable: with an Interest Period of ________________________
months/days.
The foregoing request complies with the requirements of Section 2 of
the Agreement. The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the above date, before and
after giving effect and to the application of the proceeds therefrom:
(a) except for the representations and warranties set forth in
Sections 5.6(b), 5.10(b) and 5.12 of the Agreement (which shall be made
solely as of the Closing
A - 1
REQUEST FOR EXTENSION OF CREDIT
<PAGE> 105
Date and the Effective Date), the representations and warranties made
by Borrower contained in Section 5 of the Agreement shall be true and
correct in all material respects on and as of such borrowing date with
the same effect as if made on and as of such date; and
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Extension of Credit.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
A - 2
REQUEST FOR EXTENSION OF CREDIT
<PAGE> 106
EXHIBIT B
COMPLIANCE CERTIFICATE
Financial
Statement Date: __________________, ____
To: Bank of America National Trust and
Savings Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (Multi-Year
Facility) dated as of August 20, 1997 among Science Applications International
Corporation, a Delaware corporation (the "Borrower"), the banks from time to
time party thereto, and Bank of America National Trust and Savings Association,
as Administrative Agent (as extended, renewed, amended or restated from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined).
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the _____________________________ of Borrower, and that,
as such, he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of Borrower, and that:
[Use following paragraphs when delivering this Compliance Certificate in
connection with the annual financial statements pursuant to Sections 6.1(a) and
6.1(c).]
1. Attached as Schedule 1 hereto is:
(a) a copy of the audited consolidated balance sheet of Borrower and
its Subsidiaries as at the above date and the related statements of income and
cash flows for the Fiscal Year ended on such date, setting forth in each case in
comparative form the figures for the previous year, accompanied by the opinion
of Price Waterhouse or another nationally-recognized independent public
accounting firm which report states that such consolidated financial statements
present fairly, in all material respects, the financial position of Borrower and
its Subsidiaries for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years. Such opinion is not qualified or limited
because of a restricted or limited
B - 1
COMPLIANCE CERTIFICATE
<PAGE> 107
examination by such accountant of any material portion of Borrower's or any
Subsidiary's records; and
(b) a copy of the unaudited consolidating balance sheet of Bellcore as
at the above date and the related consolidating statements of income and cash
flows for the Fiscal Year ended on such date, setting forth in each case in
comparative form the figures for the previous year.
[Use following paragraphs when delivering this Compliance Certificate in
connection with the quarterly financial statements pursuant to Sections 6.1(b)
and 6.1(d).]
1. Attached as Schedule 1 hereto is:
(a) a copy of the unaudited consolidated balance sheet of Borrower and
its Subsidiaries as of the above date and the related consolidated statements of
income and cash flows for the period commencing on the first day and ending on
the last day of the quarter ended on such date, setting forth the financial
position and the results of operations of Borrower and its Subsidiaries in
conformity with GAAP applied on a basis consistent with prior years, subject to
changes resulting from audit and normal year-end adjustments; and
(b) a copy of the unaudited consolidating balance sheet of Bellcore as
of the above date and the related consolidating statements of income and cash
flows for the period commencing on the first day and ending on the last day of
the quarter ended on such date, setting forth the financial position and the
results of operations of Bellcore, subject to changes resulting from audit and
normal year-end adjustments.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and conditions (financial or otherwise) of
Borrower during the accounting period covered by the attached financial
statements.
3. To the best of the undersigned's knowledge, Borrower, during such
period, has observed, performed or satisfied all of its covenants and other
agreements, and satisfied every condition in the Credit Agreement to be
observed, performed or satisfied by Borrower, and the undersigned has no
knowledge of any Default or Event of Default.
B - 2
COMPLIANCE CERTIFICATE
<PAGE> 108
4. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
________________, ___.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
B - 3
COMPLIANCE CERTIFICATE
<PAGE> 109
Date: _____________________, ____
For the Fiscal Quarter/Year
ended _____________________, ____
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
(all calculations are for Borrower and its Subsidiaries
on a consolidated basis
I. Section 7.7 - Consolidated Net Worth.
A. Consolidated Net Worth: $_______________
B. 50% of each Fiscal Year's Net Income
commencing with February 1, 1997 (but
without reduction for any losses
in any Fiscal Year): $_______________
C. 75% of Net Cash Proceeds from any
material corporate stock offering
after the Closing Date (excluding
Net Cash Proceeds from employees'
and pension plans' customary
quarterly stock purchases): $_______________
D. Total (Lines I.B + I.C + $448,000,000): $
Minimum requirement: Line I.A to be greater
than Line I.D
II. Section 7.8 - Leverage Ratio.
A. Consolidated Funded Debt:
1. Indebtedness for borrowed money
or incurred in connection with
acquisitions: $_______________
2. Capital Lease Obligations: $_______________
3. Guaranty Obligations with respect
to Funded Debt of others: $_______________
4. Consolidated Funded Debt
(Lines II.A.1 + II.A.2 + II.A.3): $_______________
B. Leverage Ratio (Line II.A.4 / Line I.A): ___________to 1
B - 4
COMPLIANCE CERTIFICATE
<PAGE> 110
Maximum permitted ratio:
Maximum
Period Ratio
------ --------
Closing Date through
January 31, 1998 0.70 to 1.00
February 1, 1998 through
January 31, 1999 0.65 to 1.00
February 1, 1999 through
January 31, 2000 0.60 to 1.00
February 1, 2000 and
thereafter 0.55 to 1.00
III. Section 7.9 - Annualized Interest Coverage Ratio.
A. EBITDA of Borrower and its Subsidiaries for period of last Fiscal
Quarter and three immediately preceding Fiscal Quarters ("Subject
Period")
1. Net Income for Subject Period: $_______________
2. Interest Expense for Subject Period: $_______________
3. Federal and state taxes on or
measured by income for
Subject Period: $_______________
4. Depreciation, amortization and
other non-cash expenses for
Subject Period: $_______________
5. EBITDA (Lines III.A.1 +
III.A.2 + III.A.3 + III. A.4): $_______________
B. EBITDA of Bellcore for full Fiscal Quarters in Subject Period
during which Bellcore was owned by Borrower ("Includable Period"):
1. Bellcore Net Income for Includable
Period: $_______________
2. Bellcore Interest Expense for
Includable Period: $_______________
3. Federal and state taxes on or
measured by income for
Includable Period: $_______________
B - 5
COMPLIANCE CERTIFICATE
<PAGE> 111
4. Depreciation, amortization and
other non-cash expenses for
Includable Period: $_______________
5. Bellcore EBITDA (Lines III.B.1 +
III.B.2 + III.B.3 + III. B.4): $_______________
C. Annualized Bellcore EBITDA
(Lines III.B.1 + III.B.2 + III.B.3 +
III.B.4 times the multiplier
determined below): $_______________
Includable Period Multiplier
----------------- ----------
3 months 4
6 months 2
9 months 4/3
D. Annualized Bellcore Interest Expense
(Lines III.B.2 times the multiplier
determined above): $_______________
E. Annualized EBITDA (Line III.A.5 +
Line III.C): $_______________
F. Annualized Interest Expense
(Line III.A.2 + Line III.D): $_______________
G. Annualized Interest Coverage Ratio
(Line III.E / Line III.F): __________ to 1
Minimum permitted ratio: 3.50 to 1
IV. Section 7.10 - Bellcore Funded Debt Ratio.
A. Bellcore Funded Debt:
1. Indebtedness of Bellcore
for borrowed money: $_______________
2. Capital Lease Obligations
of Bellcore: $_______________
B - 6
COMPLIANCE CERTIFICATE
<PAGE> 112
3. Guaranty Obligations of Bellcore
with respect to Funded
Debt of others: $_______________
4. Obligations of Bellcore under
Permitted Accounts
Receivable Financings: $_______________
5. Bellcore Funded Debt
(Lines IV.A.1 + A.2 + A.3 + A.4): $_______________
B. Bellcore Funded Debt Ratio
(Line IV.A.5 / Line III.B.5): __________ to 1
Maximum permitted ratio: 1.75 to 1
B - 7
COMPLIANCE CERTIFICATE
<PAGE> 113
EXHIBIT C
FORM OF COMMITTED LOAN NOTE
$ ___________________ August 20, 1997
FOR VALUE RECEIVED, SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a
Delaware corporation (the "Borrower"), hereby promises to pay to the order of
(the "Bank") at its Lending Office the principal sum of $ (or such lesser amount
as shall equal the aggregate unpaid principal amount of the Committed Loans made
by the Bank to Borrower under the Credit Agreement referred to below), in lawful
money of the United States of America and in immediately available funds, on the
dates and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Committed Loan, at such
office, in like money and funds, for the period commencing on the date of such
Committed Loan until such Committed Loan shall be paid in full, at the rates per
annum and on the dates provided in the Credit Agreement.
The date, amount, type, interest rate and duration of Interest Period
(if applicable) of each Committed Loan made by the Bank to Borrower, and each
payment made on account of the principal of such Committed Loan, shall be
recorded by the Bank on its books and, prior to any transfer of this Committed
Loan Note, endorsed by the Bank on the schedule attached to this Committed Loan
Note or any continuation of such schedule, provided that the failure of the Bank
to make any such recordation or endorsement shall not affect the obligations of
Borrower to make a payment when due of any amount owing under the Credit
Agreement or under this Committed Loan Note in respect of the Committed Loans
made by the Bank.
This promissory note is one of the Committed Loan Notes referred to in
the Credit Agreement (Multi-Year Facility) dated as of August 20, 1997 among
Borrower, the banks from time to time party thereto, and Bank of America
National Trust and Savings Association, as Administrative Agent (as extended,
renewed, amended or restated from time to time, the "Agreement;") the terms
defined therein being used herein as therein defined).
The Credit Agreement provides for the acceleration of the maturity of
this Committed Loan Note upon the occurrence of certain events and for
prepayments of Committed Loans upon the terms and conditions specified in the
Credit Agreement. If any
C - 1
FORM OF COMMITTED LOAN NOTE
<PAGE> 114
amount is not paid in full when due hereunder, such unpaid amount shall bear
interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum
rate set forth in the Credit Agreement.
Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Committed Loan Note.
Except as permitted by the Credit Agreement, this Committed Loan Note
may not be assigned by the Bank or Borrower to any other Person.
THIS COMMITTED LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF CALIFORNIA.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
a Delaware corporation
By: _____________________________________
Daniel W. Baldwin
Senior Vice President
and Treasurer
C - 2
FORM OF COMMITTED LOAN NOTE
<PAGE> 115
Schedule to Committed Loan Note
<TABLE>
<CAPTION>
(3)
(2) End of (4) (5)
(1) Amount Interest Principal Notation
Date of Loan Period Amount Made By
- ------------ ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
</TABLE>
C - 3
FORM OF COMMITTED LOAN NOTE
<PAGE> 116
EXHIBIT D-1
[To be sent by facsimile to the Administrative Agent, who will, in turn forward
this Competitive Bid Request to the Banks]
COMPETITIVE BID REQUEST
To: Bank of America National Trust and
Savings Association, as Administrative Agent
and the Banks referred to below
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (Multi- Year
Facility) dated as of August 20, 1997 among Science Applications International
Corporation, a Delaware corporation (the "Borrower"), the banks from time to
time party thereto, and Bank of America National Trust and Savings Association,
as Administrative Agent (as extended, renewed, amended or restated from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined).
The Banks are invited to make Competitive Loans:
1. On _____________________, 19__.
2. In an aggregate amount not exceeding $_________________ (with any
sublimits set forth below).
3. Comprised of (select one):
_______ Competitive Loans based ______ Competitive Loans based on an Absolute
Rate: on Offshore Rate:
<TABLE>
<CAPTION>
Competitive Maximum principal
Loan no. Maturity requested amount requested
- ----------- ------------------ ------------------
<S> <C> <C>
(1) _________ days/wks/mos $____________
(2) _________ days/wks/mos $____________
(3) _________ days/wks/mos $____________
</TABLE>
D-1 - 1
COMPETITIVE BID REQUEST
<PAGE> 117
The foregoing request complies with the requirements of Section 2.3 of
the Agreement. The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the above date, before and
after giving effect and to the application of the proceeds therefrom:
(a) except for the representations and warranties set forth in
Sections 5.6(b), 5.10(b) and 5.12 of the Agreement (which shall be made
solely as of the Closing Date and the Effective Date), the
representations and warranties made by Borrower contained in Section 5
of the Agreement shall be true and correct in all material respects on
and as of such borrowing date with the same effect as if made on and as
of such date; and
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Extension of Credit.
Borrower authorizes the Administrative Agent to deliver this
Competitive Bid Request to the Banks. Responses by Banks must be in the form of
Exhibit D-2 to the Agreement and must be received by the Administrative Agent by
the Competitive Loan Requisite Time for submitting Competitive Bids.
_________________________________________
[Borrower]
By: _____________________________________
[Responsible Officer]
D-1 - 2
COMPETITIVE BID REQUEST
<PAGE> 118
EXHIBIT D-2
COMPETITIVE BID
________________, 199_
To: Bank of America National Trust and
Savings Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (Multi- Year
Facility) dated as of August 20, 1997 among Science Applications International
Corporation, a Delaware corporation (the "Borrower"), the banks from time to
time party thereto and Bank of America National Trust and Savings Association,
as Administrative Agent (as extended, renewed, amended or restated from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined).
In response to the Competitive Bid Request dated _____________, 199_
, the undersigned offers to make the following Competitive Loan(s):
1. Borrowing date: ________________, 199_
2. In an aggregate amount not exceeding
$______________ (with any sublimits
set forth below).
3. Comprised of:
<TABLE>
<CAPTION>
For requested Competitive Absolute Amount
Offshore Competitive Bid or
Loan with a maturity of Bid Maximum Margin Bid
- ------------------------- ----------- ---------------
<S> <C> <C>
(1) _____ days/wks/mos $_______________ (- +) ________%
(2) _____ days/wks/mos $_______________ (- +) ________%
(3) _____ days/wks/mos $_______________ (- +) ________%
</TABLE>
D-2 - 1
COMPETITIVE BID
<PAGE> 119
Contact Person: _____________________ Telephone: _______________________________
_________________________________________
[Bank]
By: _____________________________________
Title: __________________________________
D-2 - 2
COMPETITIVE BID
<PAGE> 120
EXHIBIT D-3
FORM OF COMPETITIVE LOAN NOTE
$______________________ _________________________
FOR VALUE RECEIVED, SCIENCE APPLICATIONS INTERNATIONAL CORPORATION,
a Delaware corporation (the "Borrower"), hereby promises to pay to the order
of _________________ (the "Bank") at its Lending Office the principal sum of
$_________________ (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Competitive Loans made by the Bank to Borrower under the
Credit Agreement referred to below), in lawful money of the United States of
America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Competitive Loan, at such office, in like money
and funds, for the period commencing on the date of such Competitive Loan until
such Competitive Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, type, interest rate and duration of Interest Period
(if applicable) of each Competitive Loan made by the Bank to Borrower, and each
payment made on account of the principal of such Competitive Loan, shall be
recorded by the Bank on its books and, prior to any transfer of this Competitive
Loan Note, endorsed by the Bank on the schedule attached to this Competitive
Loan Note or any continuation of such schedule, provided that the failure of the
Bank to make any such recordation or endorsement shall not affect the
obligations of Borrower to make a payment when due of any amount owing under the
Credit Agreement or under this Competitive Loan Note in respect of the
Competitive Loans made by the Bank.
This promissory note is one of the Competitive Loan Notes referred to
in the Credit Agreement (Multi-Year Facility) dated as of August 20, 1997 among
Borrower, the banks from time to time party thereto, and Bank of America
National Trust and Savings Association, as Administrative Agent (as extended,
renewed, amended or restated from time to time, the "Agreement;") the terms
defined therein being used herein as therein defined).
The Credit Agreement provides for the acceleration of the maturity of
this Competitive Loan Note upon the occurrence of
D-3 - 1
FORM OF COMPETITIVE LOAN NOTE
<PAGE> 121
certain events and for prepayments of Competitive Loans upon the terms and
conditions specified in the Credit Agreement. If any amount is not paid in full
when due hereunder, such unpaid amount shall bear interest, to be paid upon
demand, from the due date thereof until the date of actual payment (and before
as well as after judgment) computed at the per annum rate set forth in the
Credit Agreement.
Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Competitive Loan Note.
Except as permitted by the Credit Agreement, this Competitive Loan Note
may not be assigned by the Bank or Borrower to any other Person.
THIS COMPETITIVE LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF CALIFORNIA.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
a Delaware corporation
By: _____________________________________
Daniel W. Baldwin
Senior Vice President
and Treasurer
D-3 - 2
FORM OF COMPETITIVE LOAN NOTE
<PAGE> 122
Schedule to Competitive Loan Note
<TABLE>
<CAPTION>
(3)
(2) End of (4) (5)
(1) Amount Interest Principal Notation
Date of Loan Period Amount Made By
- ------------ ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
- ------------ ------------- ------------- ------------- -------------
</TABLE>
D-3 - 3
FORM OF COMPETITIVE LOAN NOTE
<PAGE> 123
EXHIBIT E
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
__________________, 19__
TO: Bank of America National Trust and
Savings Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (Multi- Year
Facility) dated as of August 20, 1997 among Science Applications International
Corporation, a Delaware corporation (the "Borrower"), the banks from time to
time party thereto, and Bank of America National Trust and Savings Association,
as Administrative Agent (as extended, renewed, amended or restated from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined).
1. We hereby give you notice of, and request your consent to, the
assignment by (the "Assignor") to (the "Assignee") of ____% of the right, title
and interest of the Assignor in and to the Loan Documents, including without
limitation the right, title and interest of the Assignor in and to the
Commitment of the Assignor, and all outstanding Loans made by the Assignor.
Before giving effect to such assignment:
(a) the aggregate amount of the Assignor's Commitment is
$_______________;
(b) the aggregate principal amount of its outstanding
Committed Loans is $_______________; and
(c) the aggregate principal amount of its outstanding
Competitive Loans is $_______________.
2. The Assignee hereby represents and warrants that it has complied
with the requirements of Section 10.5 of the Credit Agreement in connection with
this assignment.
3. The Assignee agrees that, upon receiving your consent to such
assignment and from and after _____________, the Assignee will be bound by the
terms of the Loan Documents, with respect to the interest in the Loan Documents
assigned to it as specified above, as fully and to the same
E - 1
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
<PAGE> 124
extent as if the Assignee were the Bank originally holding such interest in the
Loan Documents.
4. The following administrative details apply to the Assignee:
(a) Designated Offshore Lending Office:
Assignee name: _________________________________________________
Address: _______________________________________________________
_______________________________________________________
Attention: _____________________________________________________
Telephone: (___) ______________________________________________
Telecopier: (___) ______________________________________________
Telex (Answerback): ____________________________________________
(b) Domestic Lending Office:
Assignee name: _________________________________________________
Address: _______________________________________________________
_______________________________________________________
Attention: _____________________________________________________
Telephone: (___) ______________________________________________
Telecopier: (___) ______________________________________________
Telex (Answerback): ____________________________________________
(c) Notice Address:
Assignee name: _________________________________________________
Address: _______________________________________________________
_______________________________________________________
Attention: _____________________________________________________
Telephone: (___) ______________________________________________
Telecopier: (___) ______________________________________________
Telex (Answerback): ____________________________________________
(d) Payment Instructions:
Account No.: ___________________________________________________
At: ___________________________________________________
Ref.: __________________________________________________
Attention: __________________________________________________
E - 2
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
<PAGE> 125
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[Name of Assignor]
By: _____________________________________
Title:
[Name of Assignee]
By: _____________________________________
Title:
We hereby consent to the foregoing assignment.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
a Delaware corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: ______________________________
Name: ____________________________
Title: ___________________________
E - 3
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
<PAGE> 126
EXHIBIT F
FORM OF OPINION OF CORPORATE COUNSEL
F - 1
FORM OF OPINION OF CORPORATE COUNSEL
<PAGE> 127
SCHEDULE 2.1
COMMITMENTS AND PRO RATA SHARES
(Multi-Year Facility)
<TABLE>
<CAPTION>
Pro Rata
Bank Commitment Share
---- ------------ ------------
<S> <C> <C>
Bank of America National Trust
and Savings Association $ 72,000,000 10.285714280%
Morgan Guaranty Trust Company
of New York 72,000,000 10.285714280%
Citicorp USA, Inc. (CUSA) 72,000,000 10.285714280%
The Bank of New York 36,750,000 5.250000000%
Bank of Tokyo-Mitsubishi
Trust Company 36,750,000 5.250000000%
The Chase Manhattan Bank 36,750,000 5.250000000%
The Fuji Bank, Limited,
Los Angeles Agency 36,750,000 5.250000000%
The Industrial Bank of Japan,
Limited, Los Angeles Agency 36,750,000 5.250000000%
NationsBank of Texas, N.A 36,750,000 5.250000000%
Royal Bank of Canada 36,750,000 5.250000000%
Wachovia Bank, N.A 36,750,000 5.250000000%
The Dai-Ichi Kangyo Bank, Ltd.,
Los Angeles Agency 32,500,000 4.642857142%
Mellon Bank, N.A 32,500,000 4.642857142%
The Bank of Nova Scotia 25,000,000 3.571428571%
Deutsche Bank AG 25,000,000 3.571428571%
The First National Bank of
Maryland 25,000,000 3.571428571%
The Northern Trust Company 25,000,000 3.571428571%
The Sanwa Bank, Limited, Los
Angeles Branch 25,000,000 3.571428571%
------------ -------------
TOTAL $700,000,000 100.000000000%
============ =============
</TABLE>
- 1 -
<PAGE> 128
SCHEDULE 4.2(a)(i)
CERTAIN AMENDMENTS TO
BELLCORE PURCHASE AGREEMENTS
Bellcore will initiate and, in accordance with Section 6.2 of the Stock
Purchase Agreement, request that SAIC consent to a synthetic lease financing
transaction involving real property having a value of approximately $80,000,000
(the "Synthetic Lease Transaction") which will close either concurrently with or
immediately before SAIC's acquisition of Bellcore is consummated. As a condition
to granting the necessary consent to the Synthetic Lease Transaction, SAIC will
require that the current Bellcore shareholders and Bellcore enter into an
Amendment to Stock Purchase Agreement which will provide that no gain or loss
arising as a result of such Synthetic Lease Transaction (i) will be taken into
account for purpose of determining "Interim Period Net Income" (as that term is
defined in Section 12.1(b) of the Stock Purchase Agreement) or (ii) will affect
the calculation of the final purchase price pursuant to Section 2.3 of the Stock
Purchase Agreement.
- 1 -
<PAGE> 129
SCHEDULE 5.7
ERISA PLANS
QUALIFIED PLANS:
Borrower:
- ---------
Science Applications International Corporation Cash or Deferred
Arrangement (401(k) plan)
Science Applications International Corporation Profit Sharing
Retirement Plan
Science Applications International Corporation Employee Stock
Ownership Plan (ESOP)
SAIC Frederick Employee Savings Plan (401(k) plan) SAIC Frederick Retirement
Plan (defined benefit pension plan)
Subsidiary Plans (all 401(k) plans):
- ------------------------------------
TransCore Retirement Savings Plan
General Sciences Corporation Retirement Plan
American Systems Engineering Corporation Employees 401(k)
Profit Sharing Plan
Pathology Associates Retirement Plan
MULTIEMPLOYER PLANS:
None
- 1 -
<PAGE> 130
SCHEDULE 5.12
SUBSIDIARIES
American Systems Engineering Corporation
AW Software und Technologie GmbH
Bull, Inc.
Campus Point Realty Corporation
Energy and Technology Management Corporation
General Sciences Corporation
Hicks & Associates, Inc.
INTESA JHK & Associates, Inc.
JMD Development Corporation dba JDA
Network Solutions, Inc.
Pathology Associates International Corporation
PT Science Applications International Corporation Indonesia
R.E. Wright Environmental, Inc.
Environmental Restoration Systems, Inc.
Wright Laboratory Services, Inc.
Sachse Engineering Associates, Inc.
SAIC (Bermuda) Ltd.
SAIC Columbia, Limitada
SAIC Commercial Enterprises, Inc.
SAIC de Mexico, S.A. de C.V.
SAIC Engineering, Inc.
SAIC Engineering of Ohio, Inc.
SAIC Global Technology Corporation
SAIC in Novosibirsk
SAIC-MIR
SAIC UK Limited
SAIC Limited
Andrew Palmer & Associates Limited
SAIC Ukraine Corporation
Science Applications International (Barbados) Corporation
Science Applications International Corporation (SAIC Canada)
Science Applications International Corporation de Venezuela, S.A.
Science Applications International Corporation (Singapore) Pte. Ltd.
Science Applications International Deutschland GmbH
Science Applications International, Europe S.A.
Science Applications International Pty. Ltd.
Science Applications International Technology
Syntonic Technology, Inc. dba TransCore
Systems Control Technology, Inc.
Tenth Mountain Systems, Inc.
- 1 -
<PAGE> 131
SCHEDULE 7.1
EXISTING LIENS
(1) Bradford Building Capital Lease
Applied Research, Inc., was merged into Borrower as of January 10, 1994. As part
of this transaction, Borrower assumed a capital lease on real property located
at 5025 Bradford Boulevard, Huntsville, Alabama 35805, expiring on July 1, 1999.
At the time of the merger, the long-term balance of the capital lease obligation
was valued at $2,127,817. The total long-term liability outstanding as of July
31, 1997 was $1,104,076.
- 1 -
<PAGE> 132
SCHEDULE 7.2
CERTAIN PERMITTED DISPOSITIONS
Borrower currently is contemplating the following dispositions:
1. Borrower intends to consolidate certain of its transportation
businesses under a newly organized subsidiary to be called "Transcore Holdings
Corporation" (or such other name as Borrower deems appropriate) and to sell
approximately 51% of the authorized stock in such subsidiary to an unrelated
investor or investors.
2. Borrower intends to dispose of its Advanced Nucleonics Division
currently operated in Santa Clara, California.
3. Borrower intends to offer for sale up to 20% of the authorized Class
A common stock of its Network Solutions, Inc., subsidiary in an initial public
offering.
4. Borrower intends to dispose of its Wright Laboratory Services
division currently operated in Harrisburg, Pennsylvania.
5. Borrower intends to dispose of its stock in Symmetrix, a company
currently located in Boston, Massachusetts.
The identification of the foregoing possible dispositions in this
Schedule 7.2 should not be construed to reflect Borrower's judgment that such
dispositions otherwise would not constitute "Permitted Dispositions" as defined
in the Agreement.
- 1 -
<PAGE> 133
SCHEDULE 10.2
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
BORROWER
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
10260 Campus Drive
San Diego, California 92121
Attention: Daniel M. Baldwin
Senior Vice President
and Treasurer
Telephone: (619) 546-6338
Facsimile: (619) 546-6191
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT
Bank of America National Trust
and Savings Association
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Gina Meador
Vice President
Agency Management-Los Angeles #20529
Telephone: (213) 228-5245
Facsimile: (213) 228-2299
ADMINISTRATIVE AGENT'S PAYMENT OFFICE:
1850 Gateway Boulevard, Fifth Floor
Concord, California 94520
Attention: Clayton E. Choo
Telephone: (510) 675-8453
Facsimile: (510) 675-8500
Account No. 12331-15523 Ref: Science Applications
International Corporation
Attention: Agency Management Services #5596 ABA
No. 1210-0035-8
- 1 -
<PAGE> 134
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS A BANK
Domestic and Offshore Lending Office:
333 S. Beaudry Avenue, 19th Floor
Los Angeles, CA 90017
Attention: Jorege Beliz, Sr. Account Adminstrator
Telephone: (213) 345-6344
Facsimile: (213) 345-6550
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Bank of America National Trust and
Savings Association
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Dianne Allen
Vice President
Credit Products #5618
Telephone: (213) 228-2435
Facsimile: (213) 228-2756
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
Domestic Lending Office:
60 Wall Street Branch
c/o J.P. Morgan Services Inc.
500 Stanton-Christiana Road
Loan Operations - 3rd Floor
Newark, DE 19713 Attention:
Telephone: (302) 634-1853
Facsimile: (302) 634-1092
Eurodollar Lending Office:
Nassau, Bahamas Office
c/o J.P. Morgan Services Inc.
Euro-Loan Servicing Unit
500 Stanton-Christiana Road
Newark, DE 19713 Attention:
Telephone:
Facsimile:
- 2 -
<PAGE> 135
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, NY 10260
Attention: Diana H. Imhof
Vice President
Telephone: (212) 648-6948
Facsimile: (212) 648-5018
with a copy to:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, NY 10260
Attention: Robert M. Osieski
Vice President
Telephone: (212) 648-7173
Facsimile: (212) 648-5018
CITICORP USA, INC. (CUSA)
Domestic and Offshore Lending Office:
399 Park Avenue
New York, NY 10043
Attention: Melanie Vora
Telephone: (718) 248-5698
Facsimile: (718) 248-4844 or 4845
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Citicorp USA, Inc. (CUSA)
725 S. Figueroa Street
Los Angeles, CA 90017
Attention: Hillary Savoie
Vice President
Telephone: (213) 239-1506
Facsimile: (213) 623-3592
THE BANK OF NEW YORK
Domestic and Offshore Lending Office:
One Wall Street, 22nd Floor
New York, NY 10286
Attention: Dawn Hartling or Sandra Morgan
Telephone: (212) 635-6742 or 6743
Facsimile: (212) 635-6399
- 3 -
<PAGE> 136
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
The Bank of New York
10990 Wilshire Blvd., Suite 1125
Los Angeles, CA 90024
Attention: Rebecca K. Levine
Vice President
Telephone: (310) 996-8659
Facsimile: (310) 996-8667
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
Domestic and Offshore Lending Office:
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attention: Rolando Liy
Telephone: (201) 413-8570
Facsimile: (212) 766-3127
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attention: Steven Goddard
Telephone: (212) 782-4359
Facsimile: (212) 782-6445
THE CHASE MANHATTAN BANK
Domestic and Offshore Lending Office:
270 Park Avenue
New York, NY 10017
Attention: Lenora Kiernan
Telephone: (212) 552-7309
Facsimile: (212) 552-5650
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Attention: Richard C. Smith
Vice President
Telephone: (212) 270-5435
Facsimile: (212) 270-5100
- 4 -
<PAGE> 137
with a copy to:
The Chase Manhattan Bank
270 Park Avenue, 38th Floor
New York, NY 10017
Attention: Stephen R. Simon
Telephone:
Facsimile:
THE FUJI BANK, LIMITED, LOS ANGELES AGENCY
Domestic and Offshore Lending Office:
333 South Hope Street, 39th Floor
Los Angeles, CA 90071
Attention: Mary Lee
Loan Administrator
Telephone: (213) 253-4193
Facsimile: (213) 253-4178
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
The Fuji Bank, Limited, Los Angeles Agency
333 South Hope Street, 39th Floor
Los Angeles, CA 90071
Attention: Ching Lim
Vice President
Telephone: (213) 253-4179
Facsimile: (213) 253-4178
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY
Domestic and Offshore Lending Office:
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Attention: Sue Cheung
Telephone: (213) 893-6498
Facsimile: (213) 688-7486
- 5 -
<PAGE> 138
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
The Industrial Bank of Japan, Limited,
Los Angeles Agency
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Attention: Steven M. Bradley
Telephone: (213) 893-6443
Facsimile: (213) 688-9840
NATIONSBANK OF TEXAS, N.A.
Domestic and Offshore Lending Office:
901 Main Street
Dallas, TX 75202
Attention: Karen Puente
Telephone: (214) 508-3089
Facsimile: (214) 508-0944
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
NationsBank of Texas, N.A.
444 S. Flower Street, Suite 4100
Los Angeles, CA 90071
Attention: Michele Shafroth
Senior Vice President
Telephone: (213) 236-4907
Facsimile: (213) 624-5815
ROYAL BANK OF CANADA
Domestic and Offshore Lending Office:
One Financial Square, 23rd Floor
New York, NY 10005
Attention: Linda Smith
Telephone: (212) 428-6323
Facsimile: (212) 428-2372
- 6 -
<PAGE> 139
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Royal Bank of Canada
600 Wilshire Blvd., Suite 800
Los Angeles, CA 90017
Attention: Michael A. Cole
Manager
Telephone: (213) 955-5328
Facsimile: (213) 955-5350
WACHOVIA BANK, N.A.
Domestic and Offshore Lending Office:
191 Peachtree Street N.E.
Atlanta, GA 30303
Attention: Samantha Field
Telephone: (404) 332-5271
Facsimile: (404) 332-6898
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Wachovia Bank, N.A.
191 Peachtree Street N.E.
Atlanta, GA 30303
Attention: Todd Eagle
Telephone: (404) 332-4392
Facsimile: (404) 332-6898
THE DAI-ICHI KANGYO BANK, LTD.,
LOS ANGELES AGENCY
Domestic and Offshore Lending Office:
555 West Fifth Street, 5th Floor
Los Angeles, CA 90013
Attention: Selena Larn
Telephone: (213) 243-4778
Facsimile: (213) 243-4896
- 7 -
<PAGE> 140
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
The Dai-Ichi Kangyo Bank, Ltd.,
Los Angeles Agency
555 West Fifth Street, 5th Floor
Los Angeles, CA 90013
Attention: John Merhaut
Telephone: (213) 243-4761
Facsimile: (213) 624-5258
with a copy to:
The Dai-Ichi Kangyo Bank, Ltd.,
Los Angeles Agency
555 West Fifth Street, 5th Floor
Los Angeles, CA 90013
Attention: John Chou
Telephone: (213) 243-4736
Facsimile: (213) 624-5258
MELLON BANK, N.A.
Domestic and Offshore Lending Office:
Three Mellon Bank Center, 153-2303
Pittsburgh, PA 15259
Attention: Ms. J. Helkowski
Loan Administration
Telephone: (412) 234-4714
Facsimile: (412) 236-2027
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Mellon Bank, N.A.
435 Tasso Street, Suite 100
Palo Alto, CA 94301
Attention: Edwin H. Wiest
Telephone: (650) 326-3005, ext. 223
Facsimile: (650) 326-2382
THE BANK OF NOVA SCOTIA
Domestic and Offshore Lending Office:
600 Peachtree Street NE, Suite 2700
Atlanta, GA 30308
Attention: Amanda Norsworthy
Telephone: (404) 877-1500
Facsimile: (404) 888-8998
- 8 -
<PAGE> 141
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
The Bank of Nova Scotia
580 California Street, Suite 2100
San Francisco, CA 94104
Attention: Werner Tillinger
Relationship Manager
Telephone: (415) 986-1100
Facsimile: (415) 397-0791
DEUTSCHE BANK AG
Domestic and CD Lending Office:
New York Branch
31 W. 62nd Street
New York, NY 10019
Attention: Nancy Zom
Telephone: (212) 469-1112
Facsimile: (212) 469-1139
LIBOR and Eurodollar Lending Office:
Cayman Islands Branch
c/o New York Branch
31 W. 62nd Street
New York, NY 10019
Attention: Nancy Zom
Telephone: (212) 469-1112
Facsimile: (212) 469-1139
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Deutsche Bank AG
50 California Street, Suite 1500
San Francisco, CA 94111
Attention: Olaf Janke
Telephone: (415) 439-5225
Facsimile: (415) 439-5215
THE FIRST NATIONAL BANK OF MARYLAND
Domestic and Offshore Lending Office:
P.O. Box 1596
25 S. Charles Street
Baltimore, MD 21201
Attention: Peg Miedzianowski
Telephone: (410) 244-4839
Facsimile: (410) 244-4239
- 9 -
<PAGE> 142
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
The First National Bank of Maryland
P.O. Box 1596
25 S. Charles Street
Baltimore, MD 21201
Attention: Jennifer Putnam
Telephone: (410) 244-4721
Facsimile: (410) 244-4239
THE NORTHERN TRUST COMPANY
Domestic and Offshore Lending Office:
50 S. LaSalle Street
Chicago, IL 60675
Attention: Linda Honda
Telephone: (312) 444-3532
Facsimile: (312) 635-1566
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
The Northern Trust Company
50 S. LaSalle Street
Chicago, IL 60675
Attention: John E. Burda
Telephone: (312) 444-4575
Facsimile: (312) 444-5055
THE SANWA BANK, LIMITED, LOS ANGELES BRANCH
Domestic and Offshore Lending Office:
The Sanwa Bank, Limited, Los Angeles Branch
601 South Figueroa Street, W5-4
Los Angeles, CA 90017
Attention: Washington Boza
Assistant Vice President
Loan Operations
Telephone: (213) 896-7434
Facsimile: (213) 623-4912 or (213) 896-7467
- 10 -
<PAGE> 143
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
The Sanwa Bank, Limited, Los Angeles Branch
601 South Figueroa Street, W5-4
Los Angeles, CA 90017
Attention: Gill Realon
Vice President
Telephone: (213) 896-7494
Facsimile: (213) 623-4912 or (213) 896-7467
- 11 -
<PAGE> 1
EXHIBIT 10(e)
================================================================================
CREDIT AGREEMENT
(364-DAY FACILITY)
Dated as of August 20, 1997
among
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Syndication Agent
CITICORP USA, INC.,
as Documentation Agent
and
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
Arranged by
BANCAMERICA SECURITIES, INC.
[BOFA LOGO]
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 1
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Performance; Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1.3 Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.4 Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.5 Rounding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.6 Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.7 References to "Borrower and its Subsidiaries" . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.8 Miscellaneous Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2
COMMITMENTS; INTEREST, FEES, PAYMENT PROCEDURES . . . . . . 27
2.1 The Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.2 Borrowings, Conversions and Continuations of Loans . . . . . . . . . . . . . . . . . . . . . . 27
2.3 Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.4 Voluntary Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.5 Mandatory Reductions in Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.6 Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.7 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(a) Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(b) Agency Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.8 Computation of Fees and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.9 Manner and Treatment of Payments among the Banks, Borrower and the Administrative Agent . . . . 31
2.10 Funding Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3
TAXES, YIELD PROTECTION AND ILLEGALITY . . . . . . . . 33
3.1 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.2 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.3 Increased Costs and Reduction of Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.4 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.5 Breakfunding Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.6 Inability to Determine Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.7 Matters Applicable to all Requests for Compensation . . . . . . . . . . . . . . . . . . . . . . 36
Section 4
CONDITIONS . . . . . . . . . . . . . . . 37
4.1 Conditions Precedent to Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(a) Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(b) Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(c) Resolutions; Incumbency of Borrower . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
- i -
<PAGE> 3
<TABLE>
<S> <C> <C>
(d) Articles of Incorporation; By-Laws and Good Standing of Borrower . . . . . . . . 38
(e) Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(f) Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(g) Payment of Agency Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(h) Other Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.2 Conditions Precedent to Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(a) Completion of Bellcore Acquisition . . . . . . . . . . . . . . . . . . . . . . . 38
(b) Officer's Certificate re Bellcore Acquisition . . . . . . . . . . . . . . . . . 39
(c) Termination of Existing Agreements . . . . . . . . . . . . . . . . . . . . . . . 40
(d) Supplements to Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(e) Payment of Attorney Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.3 Any Extensions of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(a) Request for Extension of Credit . . . . . . . . . . . . . . . . . . . . . . . . 40
(b) Continuation of Representations and Warranties . . . . . . . . . . . . . . . . . 40
(c) No Existing Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 41
5.1 Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.2 Corporate Authorization; No Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.3 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.4 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.5 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.6 No Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.7 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.8 Regulations G, T, U and X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.9 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.10 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.11 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.12 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.13 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.14 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.15 Public Utility Holding Company Act; Investment Company Act . . . . . . . . . . . . . . . . . . 45
5.16 Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6
AFFIRMATIVE COVENANTS . . . . . . . . . . . . . 45
6.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.4 Preservation of Corporate Existence, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.5 Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.7 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.8 Inspection of Property and Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.9 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.10 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C> <C>
Section 7
NEGATIVE COVENANTS . . . . . . . . . . . . . 49
7.1 Liens, Negative Pledges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.2 Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.3 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.4 Limitation on Guaranty Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.5 Synthetic Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.6 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.7 Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.8 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.9 Annualized Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.10 Bellcore Funded Debt Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.11 Accounting Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.12 Change in Nature of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 8
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT . . . . . 52
8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(a) Non-Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(b) Representation or Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(c) Specific Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(d) Other Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(e) Cross Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(f) Insolvency; Voluntary Proceedings . . . . . . . . . . . . . . . . . . . . . . . 53
(g) Involuntary Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(h) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(i) Monetary Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(j) Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.2 Remedies Upon Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 9
THE ADMINISTRATIVE AGENT . . . . . . . . . . . . 56
9.1 Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.2 Administrative Agent and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.3 Banks' Credit Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.4 Action by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.5 Liability of Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
9.6 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
9.7 Successor Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
9.8 No Obligations of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
9.9 Documentation Agent; Syndication Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10
MISCELLANEOUS . . . . . . . . . . . . . . . 61
10.1 Amendments; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.4 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.5 Binding Effect; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
10.6 Sharing of Setoffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C> <C>
10.9 No Third Parties Benefited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.10 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.11 GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.12 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.13 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.14 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.15 Nature of Banks' Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.16 Indemnity by Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.17 Nonliability of the Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.18 Failure to Charge Not Subsequent Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.19 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.20 Foreign Banks and Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.21 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
</TABLE>
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<PAGE> 6
EXHIBITS
Form of:
A Request for Extension of Credit
B Compliance Certificate
C Note
D Notice of Assignment and Acceptance
E Opinion of Corporate Counsel
SCHEDULES
2.1 Commitments and Pro Rata Shares
4.2(a)(i) Certain Amendments to Bellcore Purchase Agreements
5.7 ERISA Plans
5.12 Subsidiaries
7.1 Existing Liens
7.2 Certain Permitted Dispositions
10.2 Lending Offices and Notice Addresses
- v -
<PAGE> 7
CREDIT AGREEMENT
(364-DAY FACILITY)
This CREDIT AGREEMENT (364-DAY FACILITY) dated as of August 20, 1997
is entered into by and among SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a
Delaware corporation ("Borrower"), each lender whose name is set forth on the
signature pages of this Agreement and each lender which may hereafter become a
party to this Agreement (collectively, the "Banks" and individually, a "Bank")
and Bank of America National Trust and Savings Association, as Administrative
Agent.
RECITALS
A. Concurrently herewith, Borrower is completing the Bellcore
Acquisition and, in connection therewith, Borrower has requested that the Banks
provide a revolving credit facility hereunder to fund the purchase price for
the Bellcore Acquisition and for general corporate purposes.
B. The Banks are willing to provide a credit facility on the
terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Section 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms
will have the following meanings, unless the context otherwise requires:
"Administrative Agent" means Bank of America National Trust and
Savings Association, when acting in its capacity as the Administrative Agent
under any of the Loan Documents, or any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address and account as set forth on Schedule 10.2, or such other address or
account as the Administrative Agent hereafter may designate by written notice
to Borrower and the Banks.
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<PAGE> 8
"Administrative Agent-Related Persons" means the Administrative Agent
(including any successor agent), together with their respective Affiliates, and
the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract or otherwise. In no
event shall the Bank be deemed an "Affiliate" of Borrower or of any Subsidiary
of Borrower.
"Agreement" means this Credit Agreement, as amended, supplemented,
modified, restated or extended from time to time in accordance with the terms
hereof.
"Annualized EBITDA" means, as of the last day of each Fiscal Quarter,
(a) EBITDA of Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP for the fiscal period consisting of that Fiscal Quarter
and the three immediately preceding Fiscal Quarters plus, without duplication,
(b) with respect to Bellcore, such amount as is necessary to reflect the
annualization of EBITDA attributable to Bellcore using the following
conventions: (i) if the Bellcore Acquisition was made less than one full
Fiscal Quarter ago, no annualization adjustment shall be made, (ii) if the
Bellcore Acquisition was made more than one Fiscal Quarter ago, but less than
two full Fiscal Quarters ago, Bellcore's EBITDA for that Fiscal Quarter shall
be multiplied by four, (iii) if the Bellcore Acquisition was made more than two
full Fiscal Quarters ago, but less than three full Fiscal Quarters ago,
Bellcore's EBITDA for those Fiscal Quarters shall be multiplied by two and (iv)
if the Bellcore Acquisition was made more than three full Fiscal Quarters ago,
but less than four full Fiscal Quarters ago, Bellcore's EBITDA for those Fiscal
Quarters shall be multiplied by four thirds (4/3).
"Annualized Interest Expense" means, as of the last day of each Fiscal
Quarter, (a) Interest Expense of Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP for the fiscal period consisting of
that Fiscal Quarter and the three immediately preceding Fiscal Quarters plus
(b) for the first year after the Bellcore Acquisition, such amount as is
necessary to reflect the annualization of Interest Expense using the following
conventions: (i) if the Bellcore Acquisition was made less than one full
Fiscal Quarter ago, no annualization adjustment shall be made, (ii) if the
Bellcore
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<PAGE> 9
Acquisition was made more than one full Fiscal Quarter ago, but less than two
full Fiscal Quarters ago, Interest Expense for that Fiscal Quarter shall be
multiplied by four, (iii) if the Bellcore Acquisition was made more than two
full Fiscal Quarters ago, but less than three full Fiscal Quarters ago,
Interest Expense for those Fiscal Quarters shall be multiplied by two and (iv)
if the Bellcore Acquisition was made more than three full Fiscal Quarters ago,
but less than four full Fiscal Quarters ago, Interest Expense for those Fiscal
Quarters shall be multiplied by four thirds (4/3).
"Annualized Interest Coverage Ratio" means, as of the last day of each
Fiscal Quarter (including the last day of a Fiscal Quarter which is also the
last day of a Fiscal Year), the ratio of (a) Annualized EBITDA for the fiscal
period consisting of that Fiscal Quarter and the three immediately preceding
Fiscal Quarters to (b) Annualized Interest Expense for that fiscal period.
"Applicable Amount" means, (a) with respect to any Offshore Rate Loan
or CD Rate Loan, the per annum amounts set forth below under Applicable Amount
opposite the Pricing Level in effect on the date such Offshore Rate Loan or CD
Rate Loan is borrowed, Continued or Converted (notwithstanding any subsequent
change in the Pricing Level during the Interest Period applicable to such
Offshore Rate Loan) and (b) with respect to the facility fee, the per annum
amount set forth below under Applicable Amount opposite the Pricing Level in
effect from time to time; provided, however, that until delivery of the
Compliance Certificate pursuant to Section 6.2(a) for the first full Fiscal
Quarter after the Fiscal Quarter within which the Bellcore Acquisition was
consummated , the Applicable Amount shall be based on Pricing Level 2:
<TABLE>
<CAPTION>
===============================================================================
Applicable Amount
(in basis points per annum)
Pricing Facility Fee Offshore Rate + CD Rate +
Level
-------------------------------------------------------------------------------
<S> <C> <C> <C>
1 5.5 17.0 29.5
-------------------------------------------------------------------------------
2 7.0 23.0 35.5
-------------------------------------------------------------------------------
3 10.0 25.0 37.5
-------------------------------------------------------------------------------
4 12.5 30.0 42.5
-------------------------------------------------------------------------------
5 15.0 47.5 60.0
===============================================================================
</TABLE>
"Pricing Level" means, as of any date, the pricing level set
forth below opposite (a) the most creditworthy applicable Pricing
Rating or (b) the
- 3 -
<PAGE> 10
applicable Annualized Interest Coverage Ratio, whichever results in
the lowest Applicable Amount, in each case as in effect as of the
first day of the Pricing Period in which such date occurs:
<TABLE>
<CAPTION>
Pricing Annualized Interest
Level Pricing Rating Coverage Ratio
------- --------------- -------------------
S&P Moody's
<S> <C>
1 GREATER THAN OR EQUAL TO A- A3 GREATER THAN OR EQUAL TO 9.50:1
2 GREATER THAN OR EQUAL TO BBB+ Baa1 GREATER THAN OR EQUAL TO 7.75:1 but LESS THAN 9.50:1
3 GREATER THAN OR EQUAL TO BBB Baa2 GREATER THAN OR EQUAL TO 6.25:1 but LESS THAN 7.75:1
4 GREATER THAN OR EQUAL TO BBB- Baa3 GREATER THAN OR EQUAL TO 4.50:1 but LESS THAN 6.25:1
5 LESS THAN BBB- Baa3 LESS THAN 4.50:1
</TABLE>
provided, however, that if there is no Pricing Rating, the
Applicable Amount shall be based solely on the Annualized
Interest Coverage Ratio; provided, further, that if the
Compliance Certificate is not delivered by the date required
by the Section 6.2(a) at any time when the Applicable Amount
is determined by the Annualized Interest Coverage Ratio, then,
subject to the other provisions of this Agreement, commencing
on the date such Compliance Certificate was required to be
delivered until the date such Compliance Certificate is
delivered, the Applicable Amount set forth for Level 5 above
shall apply; from and after the date such Compliance
Certificate is thereafter received, the Applicable Amount
indicated by the Annualized Interest Coverage Ratio set forth
in such Compliance Certificate shall apply.
"Pricing Level Change Date" means (a) with respect to
any change in the Pricing Rating which results in a change in
the Applicable Amount, the date of the public announcement of
the change in such Pricing Rating or (b) with respect to any
change in the Annualized Interest Coverage Ratio which results
in a change in the Applicable Amount, the date upon which
Borrower is required by Section 6.2(a) to deliver such
Compliance Certificate.
"Pricing Period" means (a) the period commencing on
the Closing Date and ending on the first Pricing Level Change
Date to occur thereafter and (b) each subsequent period
commencing on each Pricing Level Change Date and ending the
day prior to the next Pricing Level Change Date.
"Pricing Rating" means, as of any date of
determination, the rating, if any, of Borrower's senior
unsecured debt, as determined by either Standard & Poor's
Corporation ("S&P") or Moody's Investors
- 4 -
<PAGE> 11
Service, Inc. ("Moody's); provided, that if Borrower's senior
unsecured debt is rated by both of such rating agencies, then
the more creditworthy of such credit ratings shall apply
unless there is a split rating of two grades or more, in which
case the median of the two ratings shall apply.
"Applicable Taxes" means any and all present or future taxes
(including documentary taxes), levies, assessments, imposts, duties,
deductions, fees, withholdings or similar charges, and all liabilities with
respect thereto imposed by a Governmental Authority relating to any Loan
Document, including any liabilities imposed on amounts paid by Borrower to
indemnify or reimburse any Person for such amounts, excluding Bank Taxes.
"Arranger" means BancAmerica Securities, Inc.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated cost of
internal legal services and all disbursements of internal counsel.
"Availability Period" means the period commencing on the
Effective Date and ending, subject to Section 8, on the day before the Maturity
Date.
"Bank" means each lender from time to time party hereto.
"Bank Taxes" means, in the case of each Bank, the
Administrative Agent, each Eligible Assignee, and any Affiliate or Lending
Office thereof: (a) taxes imposed on or measured in whole or in part by its
overall net income, gross income or gross receipts or capital and franchise
taxes imposed on it, by (i) any jurisdiction (or political subdivision thereof)
in which it is organized or maintains its principal office or Lending Office or
(ii) any jurisdiction (or political subdivision thereof) in which it is "doing
business" (unless it would not be doing business in such jurisdiction (or
political subdivision thereof) absent the transactions contemplated hereby),
(b) any withholding taxes or other taxes based on gross income imposed by the
United States of America (other than withholding taxes and taxes based on gross
income resulting from or attributable to any change in any law, rule or
regulation or any change in the interpretation or administration of any law,
rule or regulation by any Governmental Authority in each case after the date
hereof) or (c) any withholding taxes or other taxes based on gross income
imposed by the United States of America for any period with respect to which it
has failed to provide Borrower with the
- 5 -
<PAGE> 12
appropriate form or forms required by Section 10.20, to the extent such forms
are then required by any Requirement of Law.
"Base Rate" means the higher of: (a) the rate of interest
publicly announced from time to time by BofA in San Francisco, California, as
its "reference rate," which is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate; and (b) one-half percent
per annum above the Federal Funds Rate. Any change in the reference rate
announced by BofA shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Base Rate Loan" means a Loan made hereunder and specified to
be a Base Rate Loan in accordance with Section 2.
"Bellcore" means Bell Communications Research, Inc., a
Delaware corporation.
"Bellcore Acquisition" means Borrower's acquisition of
Bellcore pursuant to the Bellcore Purchase Agreement.
"Bellcore Funded Debt" means, at any date of determination,
for Bellcore, an amount equal to the sum of, without duplication, (a) all
Indebtedness of Bellcore for borrowed money plus (b) the principal portion of
all Capital Lease Obligations of Bellcore plus (c) all Guaranty Obligations of
Bellcore with respect to Funded Debt of others plus (d) all obligations of
Bellcore under Permitted Accounts Receivable Financings, in each case
determined as of such date.
"Bellcore Funded Debt Ratio" means, as of the last day of each
Fiscal Quarter of Borrower (including the last day of a Fiscal Quarter which is
also the last day of a Fiscal Year) after completion of the Bellcore
Acquisition, the ratio of (a) Bellcore Funded Debt to (b) Bellcore's EBITDA for
the fiscal period consisting of that Fiscal Quarter and the three immediately
preceding Fiscal Quarters.
"Bellcore Material Adverse Effect" means a material adverse
change in, or a material adverse effect upon, any of (a) the operations,
business, Properties or financial condition of Bellcore and its Subsidiaries,
taken as a whole; or (b) the legality, validity, binding effect or
enforceability of the Bellcore Purchase Agreement.
"Bellcore Purchase Agreement" means the Stock Purchase
Agreement dated as of November 20, 1996 among Borrower, Bellcore and the
sellers named therein, as amended, including the exhibits and schedules
thereto.
- 6 -
<PAGE> 13
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means any such day on which dealings are
carried on in the London offshore dollar interbank market.
"Borrowing" and "Borrow" each mean, a borrowing hereunder
consisting of Loans of the same type made on the same day and, other than in
the case of Base Rate Loans, having the same Interest Period.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other law
(provided that if such guideline, request or directive does not have the force
of law, compliance therewith is customary for banks regulated in a manner
similar to such Bank), rule or regulation, whether or not having the force of
law, in each case, regarding capital adequacy of such Bank or of any
corporation controlling such Bank.
"Capital Lease" has the meaning specified in the definition of
Capital Lease Obligations.
"Capital Lease Obligations" means all monetary obligations of
Borrower or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease ("Capital
Lease").
"CD Rate" means, for any Interest Period with respect to CD
Rate Loans comprising part of the same Borrowing, the per annum rate of
interest (rounded upward to the next 1/100th of 1%) determined by the
Administrative Agent (whose determination shall be conclusive in the absence of
manifest error) as follows:
CD Rate = Certificate of Deposit Rate + Assessment
-----------------------------
1.00 - Reserve Percentage Rate
Where:
"Assessment Rate" means, for any day of such Interest
Period, the rate determined by the Administrative Agent as
equal to the annual assessment rate in effect on such day
payable to the FDIC (or any successor) by a member of the Bank
Insurance Fund that is classified as adequately capitalized
and within supervisory subgroup "A" (or a comparable successor
assessment risk classification) within the meaning of
- 7 -
<PAGE> 14
12 C.F.R. Section 327.4(a) (or any successor provisions) for
insuring time deposits at offices of such member in the United
States.
"Certificate of Deposit Rate" means the rate of
interest per annum determined by the Administrative Agent to
be the arithmetic mean (rounded upward to the next 1/100th of
1%) of the rates notified to the Administrative Agent as the
rates of interest bid by two or more certificate of deposit
dealers of recognized standing selected by the Administrative
Agent for the purchase at face value of dollar certificates of
deposit issued by major United States banks, for a maturity
comparable to such Interest Period and in the approximate
amount of the CD Rate Loans to be made, at the time selected
by the Administrative Agent on the first day of such Interest
Period.
"Reserve Percentage" means, for any day of such
Interest Period, the maximum reserve percentage (expressed as
a decimal, rounded upward to the next 1/100th of 1%), as
determined by the Administrative Agent, in effect on such day
(including any ordinary, marginal, emergency, supplemental,
special and other reserve percentages), prescribed by the
Federal Reserve Board pursuant to Regulation D promulgated
under the Federal Reserve Act, as amended from time to time,
for determining the maximum reserves to be maintained by
member banks of the Federal Reserve System with deposits
exceeding $1,000,000,000 for new non-personal time deposits
for a period comparable to such Interest Period and in an
amount of $100,000 or more.
The CD Rate shall be adjusted, as to all CD Rate Loans then
outstanding, automatically as of the effective date of any change in the
Assessment Rate or the Reserve Percentage.
"CD Rate Loan" means a Loan that bears interest based on the
CD Rate.
"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.1 are satisfied or waived by the Banks and the
Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
- 8 -
<PAGE> 15
"Commitment" means, for each Bank, the amount set forth as
such opposite such Bank's name on Schedule 2.1 under Commitment, as such amount
may be reduced pursuant to the terms of this Agreement (collectively, the
combined "Commitments"). The respective Pro Rata Shares of the Banks in the
combined Commitments are set forth in Schedule 2.1.
"Compliance Certificate" means a certificate substantially in
the form of Exhibit B, properly completed and signed by a Responsible Officer.
"Consolidated Funded Debt" means, at any date of
determination, for Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP, an amount equal to the sum of, without duplication, (a)
all Indebtedness of such Person for borrowed money or which has been incurred
in connection with the acquisition of assets plus (b) the principal portion of
all Capital Lease Obligations of such Person plus (c) all Guaranty Obligations
of such Person with respect to Funded Debt of others, in each case determined
as of such date.
"Consolidated Net Worth" means, at any date of determination,
the net worth of Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Continuation" and "Continue" each mean, with respect to any
Loan other than a Base Rate Loan, the continuation of such Loan as the same
type of Loan in the same principal amount, but with a new Interest Period and
an interest rate determined as of the first day of such new Interest Period.
Continuations must occur on the last day of the Interest Period for such Loan.
"Contractual Obligations" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or any of
its Property is bound.
"Controlled Group" means Borrower and all Persons (whether or
not incorporated) under common control or treated as a single employer with
Borrower pursuant to Section 414(b) or (c) of the Code.
"Conversion" and "Convert" each mean, with respect to any
Loan, the conversion of one type of Loan into another type of Loan. With
respect to Loans other than Base Rate Loans, Conversions must occur on the last
day of the Interest Period for such Loan.
- 9 -
<PAGE> 16
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Default Rate" means an interest rate equal to the underlying
interest rate applicable to such type of Loan plus the Applicable Amount, if
any, otherwise applicable plus 2%, to the fullest extent permitted by any
Requirement of Law.
"Designated Deposit Account" means a deposit account to be
maintained by Borrower with Bank of America National Trust and Savings
Association, as from time to time designated by Borrower by written
notification to the Administrative Agent.
"Disposition" means the voluntary sale, transfer, or other
disposition (but not including a pledge or hypothecation except as set forth
below in this definition) of any asset of Borrower or any of its Subsidiaries,
including without limitation any sale, assignment, pledge, hypothecation,
transfer or other disposal with or without recourse of any notes or accounts
receivable or any rights and claims associated therewith, other than a
Permitted Disposition.
"EBITDA" means, for any period, for any Person, an amount
equal to the sum of (a) Net Income of such Person for that period, plus (b)
Interest Expense of such Person for that period, plus (c) the aggregate amount
of consolidated federal and state taxes on or measured by income of such Person
and its consolidated Subsidiaries for that period (whether or not payable
during that period), plus (d) consolidated depreciation, amortization and all
other non-cash expenses of such Person and its consolidated Subsidiaries for
that period, in each case as determined in accordance with GAAP.
"Effective Date" means the date on which all conditions
precedent set forth in Section 4.2 are satisfied or waived by the Banks and the
Administrative Agent.
"Eligible Assignee" means (i) a financial institution
organized under the laws of the United States, or any state thereof, and having
total assets of at least $1,000,000,000; (ii) a commercial bank organized under
the laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision
of any such country, and having total assets of at least $1,000,000,000,
provided that such bank is acting through a branch or agency located in the
United States; (iii) a Person that is primarily engaged in the business of
commercial banking and that is (A) a Subsidiary of a Bank, (B) a Subsidiary of
a
- 10 -
<PAGE> 17
Person of which a Bank is a Subsidiary, or (C) a Person of which a Bank is a
Subsidiary or (iv) another Bank.
"Environmental Claims" means all claims, however asserted, by
any Governmental Authority or other Person alleging liability or responsibility
for violation of any Environmental Law or for release or injury to the
environment or threat to public health, personal injury (including sickness,
disease or death), Property damage, natural resources damage, or otherwise
alleging liability or responsibility for damages (punitive or otherwise),
cleanup, removal, remedial or response costs, restitution, civil or criminal
penalties, injunctive relief, or other type of relief, resulting from or based
upon (a) the presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from Property,
whether or not owned by Borrower, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws,
statutes, rules, regulations, ordinances and codes, together with all
administrative orders, licenses, authorizations and permits of, and agreements
with, any Governmental Authorities, in each case relating to environmental,
health, safety and land use matters (excluding matters relating to zoning and
building permits); including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), the
Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste
Disposal Act, the Federal Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Emergency Planning and Community Right-to-Know Act,
the California Hazardous Waste Control Law, the California Solid Waste
Management, Resource, Recovery and Recycling Act, the California Water Code and
the California Health and Safety Code.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Borrower or any Subsidiary of Borrower
within the meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a
Qualified Plan or a Multiemployer Plan which is a
- 11 -
<PAGE> 18
Materially Underfunded Plan; (b) a withdrawal by any member of the Controlled
Group from a Qualified Plan which is a Materially Underfunded Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer
(as defined in Section 4001(a)(2) of ERISA); (c) a complete or partial
withdrawal by any member of the Controlled Group from a Multiemployer Plan
which is a Materially Underfunded Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination under Section
4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to
terminate a Qualified Plan or Multiemployer Plan which is a Materially
Underfunded Plan subject to Title IV of ERISA; (e) a failure to make required
contributions to a Qualified Plan or Multiemployer Plan which is a Materially
Underfunded Plan; (f) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Qualified Plan or Multiemployer
Plan which is a Materially Underfunded Plan; (g) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon any member of the Controlled Group
with respect to a Materially Underfunded Plan; (h) an application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of
the Code with respect to any Qualified Plan which is a Materially Underfunded
Plan; (i) any member of the Controlled Group engages in or otherwise becomes
liable for a non-exempt prohibited transaction which would have a Material
Adverse Effect; or (j) a violation of the applicable requirements of Section
404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the
Code by any fiduciary with respect to any Qualified Plan for which Borrower or
any of its Subsidiaries may be directly or indirectly liable which would have a
Material Adverse Effect.
"Event of Default" shall have the meaning provided in Section
8.1.
"Exchange Act" means the Securities Exchange Act of 1934.
"Existing Agreements" means (a) that certain Credit Agreement
dated as of April 7, 1995 between Borrower and BofA; (b) that certain Credit
Agreement dated as of April 7, 1995 between Borrower and Citicorp USA, Inc.,
(c) that certain Credit Agreement dated as of April 7, 1995 between Borrower
and Morgan Guaranty Trust Company of New York and (d) that certain Credit
Agreement dated as of June 27, 1996 among Bellcore, the banks listed therein
and Morgan Guaranty Trust Company of New York, as agent.
"Extension of Credit" means the Borrowing, Conversion or
Continuation of any Loans (collectively, the "Extensions of Credit").
- 12 -
<PAGE> 19
"Eurodollar Reserve Percentage" has the meaning specified in
the definition of "Offshore Rate."
"Federal Funds Rate" means the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day of
determination (or if such day of determination is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for such day on such transaction received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any successor thereto.
"Fiscal Quarter" means, as applicable, the fiscal quarter of
Borrower, its Subsidiaries and Bellcore.
"Fiscal Year" means, as applicable, the fiscal year of
Borrower, its Subsidiaries and Bellcore.
"Funded Debt" means, for any period, for any Person, an amount
equal to the sum of, without duplication, (a) all Indebtedness of such Person
for borrowed money plus (b) the principal portion of all Capital Lease
Obligations of such Person plus (c) all Guaranty Obligations of such Person
with respect to Funded Debt of others plus (d) all obligations of such Person
under Permitted Accounts Receivable Financings.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
accounting profession), or in such other statements by such other entity as may
be in general use by significant segments of the U.S. accounting profession,
which are applicable to the circumstances as of the date of determination.
"Governmental Authority" means (a) any international, foreign,
federal, state, county or municipal government, or political subdivision
thereof, (b) any governmental agency, central bank or comparable authority,
authority, board, bureau, commission, department or instrumentality, or (c) any
court or administrative tribunal.
"Guaranty Obligation" means, as applied to Borrower or any of
its Subsidiaries, any direct or indirect liability of
- 13 -
<PAGE> 20
that Person with respect to any Indebtedness, lease, letter of credit, surety
bond, bankers' acceptance or other obligation (the "primary obligations") of
another Person (except Borrower or any of its Subsidiaries) (the "primary
obligor"), including any obligation of that Person, whether or not contingent,
(a) to purchase, repurchase or otherwise acquire such primary obligations or
any Property constituting direct or indirect security therefor, or (b) to
advance or provide funds (i) for the payment or discharge of any such primary
obligation, or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, or (c) to purchase Property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (d)
otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof. The amount of any Guaranty Obligation shall
be deemed equal to the stated or determinable amount of the primary obligation
in respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof.
"Hazardous Materials" means all those substances which are
regulated by, or which may form the basis of liability under, any Environmental
Law, including all substances identified under any Environmental Law as a
pollutant, contaminant, hazardous waste, hazardous constituent, special waste,
hazardous substance, hazardous material, or toxic substance, or petroleum or
petroleum derived substance or waste.
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of Property or services (other than
trade payables entered into in the ordinary course of business pursuant to
ordinary terms); (c) all matured or drawn and unreimbursed reimbursement
obligations with respect to surety bonds, letters of credit, bankers'
acceptances and similar instruments (in each case, to the extent
non-contingent); (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of Property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement, in either case with respect to Property acquired by the Person (even
though the rights and remedies of the seller or bank under such agreement in
the event of default are limited to repossession or sale of such Property); (f)
all Capital Lease Obligations; (g) all indebtedness referred to in clauses (a)
- 14 -
<PAGE> 21
through (f) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in Property (including accounts and contracts rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such Indebtedness; and (h) all Guaranty Obligations in respect of indebtedness
or obligations of others of the kinds referred to in clauses (a) through (f)
above. Indebtedness shall not include life insurance policy loans secured by
the surrender value of such life insurance policy.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the benefit
of creditors, composition, marshalling of assets for creditors or other,
similar arrangement in respect of its creditors generally or any substantial
portion of its creditors; in the case of clause (a) and (b) undertaken under
U.S. Federal, State or foreign law, including the Bankruptcy Code.
"Interest Expense" means, for any period, for any Person, the
sum, without duplication, of total consolidated interest expense (including
that portion attributable to Capitalized Leases in conformity with GAAP) of
such Person and its consolidated Subsidiaries.
"Interest Payment Date" means, (a) with respect to any Loan
other than a Base Rate Loan, (i) the last day of each Interest Period
applicable to, or the maturity of, such Loan; provided, however, that (A) if
any Interest Period for an Offshore Rate Loan exceeds three months, interest
shall also be paid on the date which falls, as applicable, three, six, nine and
12 months after the beginning of such Interest Period; and (B) if any Interest
Period for a CD Rate Loan exceeds 90 days, interest shall also be paid on the
date which falls 90 days after the beginning of such Interest Period; (ii) any
date that such Loan is prepaid in whole or in part, and (iii) the Maturity
Date, and (b) with respect to any Base Rate Loan, the last Business Day of each
calendar quarter and the Maturity Date.
"Interest Period" means, as to any Loan other than a Base Rate
Loan, the period commencing on the date specified by Borrower in its Request
for Extension of Credit and ending, (i) in the case of Offshore Rate Loans,
one, two, three or six months (or, if consented to by all Banks in accordance
with Section 2.2(a), nine or 12 months) thereafter, or (ii) in the case of CD
Rate Loans, 30, 60, 90 or 180 days thereafter, in each case as selected by
Borrower in the Request for Extension of Credit relating thereto; provided
that:
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<PAGE> 22
(a) if any Interest Period pertaining to an
Offshore Rate Loan would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end
on the immediately preceding Business Day;
(b) any Interest Period pertaining to an Offshore
Rate Loan that begins on the last 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 end on the last Business Day of the
calendar month at the end of such Interest Period; and
(c) No Interest Period for any Loan shall extend
beyond the Maturity Date.
"Lending Office" means, as to any Bank, the office or offices
of such Bank specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 10.2, or such other
office or offices as such Bank may from time to time notify the Administrative
Agent.
"Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Debt to (b) the sum of Consolidated Funded
Debt and Consolidated Net Worth as of such date.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, lien (statutory or other) or other security interest
or encumbrance (including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest of a lessor
under a Capital Lease Obligation or the filing of any financing statement
naming the owner of the asset to which such lien relates as debtor, under the
UCC or any comparable law), but not including the interest of a lessor under an
Operating Lease.
"Loan" means any advance made or to be made by any Bank to
Borrower as provided in Section 2, and includes each Base Rate Loan, CD Rate
Loan and Offshore Rate Loan.
"Loan Documents" means, collectively, this Agreement, the
Notes, any Request for Extension of Credit, any Compliance Certificate and any
other agreements of any type or nature hereafter executed and delivered by
Borrower or any of its Subsidiaries or Affiliates to the Administrative Agent
or to
- 16 -
<PAGE> 23
any Bank in any way relating to or in furtherance of this Agreement, in each
case either as originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted.
"Margin Stock" means "margin stock" as such term is defined in
Regulations G, T, U and X of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse change in,
or a material adverse effect upon, any of (a) the operations, business,
Properties or financial condition of Borrower and its Subsidiaries, taken as a
whole; or (b) the legality, validity, binding effect or enforceability of any
Loan Document.
"Materially Underfunded Plan" means, at any time, a Plan or
Plans having aggregate Unfunded Pension Liabilities in excess of $10,000,000.
"Maturity Date" means August 18, 1998.
"Minimum Amount" means, with respect to each action described
below, the following amount set forth opposite such action:
<TABLE>
<CAPTION>
Minimum
Multiples
Minimum in excess of
Type of Action Amount Minimum Amount
------------------- ----------- --------------
<S> <C> <C>
Borrowing of,
prepayment of
or conversion into,
Base Rate Loans $5,000,000 $ 500,000
Borrowing of,
prepayment of
continuation of,
or conversion into,
Offshore Rate Loans $5,000,000 $1,000,000
Borrowing of,
prepayment of
continuation of,
or conversion into,
CD Rate Loans $5,000,000 $1,000,000
Reduction in
Commitments $5,000,000 $1,000,000
Assignments $25,000,000 n/a
</TABLE>
- 17 -
<PAGE> 24
"Multiemployer Plan" means a "multiemployer plan" (within the
meaning of Section 4001(a)(3) of ERISA) and to which any member of the
Controlled Group makes, is making, or is obligated to make contributions or has
made, or been obligated to make, contributions, but does not include (i)
Multiemployer Plans to which no member of the Controlled Group had withdrawal
liability and an obligation to contribute at all times following the enactment
of the Multiemployer Pension Plan Amendments Act of 1980, and (ii)
Multiemployer Plans as to which all members of the Controlled Group have both
completely withdrawn and paid the full amount of any withdrawal liability.
"Net Cash Proceeds" means, in respect of any issuance of debt
or equity or Disposition, the cash proceeds received or receivable in
connection therewith, net of reasonable costs and expenses paid or incurred in
connection therewith in favor of any Person not an Affiliate of Borrower.
"Net Income" means, with respect to any fiscal period, for any
Person the consolidated net income of such Person and its consolidated
Subsidiaries, determined in accordance with GAAP.
"Note" means the promissory note made by Borrower to a Bank
evidencing such Bank's Loans, substantially in the form of Exhibit C, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted (collectively, the "Notes").
"Notice of Assignment and Acceptance" means a Notice of
Assignment and Acceptance substantially in the form of Exhibit D.
"Notice of Lien" means any "notice of lien" or similar
document intended to be filed or recorded with any court, registry, recorder's
office, central filing office or other Governmental Authority for the purpose
of evidencing, creating, perfecting or preserving the priority of a Lien
securing obligations owing to a Governmental Authority.
"Obligations" means all obligations of every kind or nature of
Borrower from time to time owed to the Administrative Agent, any Bank, any
Person entitled to indemnification, or any one or more of them, under any one
or more of the Loan Documents, whether for principal, interest, fees, expenses,
indemnification or otherwise, and whether absolute or contingent, due or to
become due, matured or unmatured, liquidated or unliquidated, now existing or
hereafter arising, pursuant to the terms of any of the Loan Documents, and
including interest that accrues after the commencement of any Insolvency
Proceeding.
- 18 -
<PAGE> 25
"Offshore Rate" means, for each Interest Period in respect of
an Offshore Rate Loan, an interest rate per annum (rounded upward to the
nearest 1/16th of 1%) determined by the Administrative Agent (whose
determination shall be conclusive in the absence of manifest error) pursuant to
the following formula:
Offshore Rate = LIBOR
-------------------------------------
1.0 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means the maximum
reserve percentage, if any (expressed as a decimal, rounded
upward to the nearest 1/100th of 1%), in effect on the date
LIBOR for such Interest Period is determined (whether or not
applicable to any Bank) under regulations issued from time to
time by the Federal Reserve Board for determining the reserve
requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities")
having a term comparable to such Interest Period; and
"LIBOR" means the rate of interest per annum
determined by the Administrative Agent as the rate of interest
at which dollar deposits in the approximate amount of the
amount of BofA's Loan to be made or Continued as, or Converted
into, an Offshore Rate Loan and having a maturity comparable
to such Interest Period would be offered by BofA to major
banks in the London interbank market at its request at or
about 11:00 a.m. (London time) on the second Business Day
prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan bearing interest at the rate
determined by reference to the Offshore Rate.
"Operating Lease" means, as applied to any Person, any lease
of Property which is not a Capital Lease other than any such lease under which
that Person is the lessor.
"Ordinary Course Guaranty Obligations" means any Guaranty
Obligations of Borrower or any of its Subsidiaries consisting of obligations in
respect of surety bonds, letters of credit, performance bonds, leases,
indemnities or similar obligations incurred in connection with a transaction
entered
- 19 -
<PAGE> 26
into in the Ordinary Course of Business of Borrower or any of its Subsidiaries.
"Ordinary Course of Business" means, in respect of any
transaction involving Borrower or any Subsidiary of Borrower, the ordinary
course of such Person's business, as conducted by any such Person in accordance
with past practice.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, and all applicable resolutions of the board of directors (or
any committee thereof) of such corporation relating to the foregoing or the
organization of such corporation.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Accounts Receivable Financing" means a sale or
discount of accounts receivable of Borrower and/or its Subsidiaries (a) that
does not involve the creation of a Lien or negative pledge on any accounts
receivable not so sold or discounted and (b) that does not involve in the
aggregate the sale or discount of accounts receivable having a book value
exceeding $100,000,000.
"Permitted Disposition" means a Disposition of (a) inventory
or other assets sold, leased or otherwise disposed of in the Ordinary Course of
Business of Borrower or a Subsidiary, (b) Dispositions of inventory, or used,
worn-out or surplus equipment, all in the Ordinary Course of Business, (c)
Dispositions of equipment to the extent that such equipment is exchanged for
credit against the purchase price of similar replacement equipment, or the
proceeds of such sale are reasonably promptly applied to the purchase price of
such replacement equipment or where Borrower or its Subsidiary determine in
good faith that the failure to replace such equipment will not be detrimental
to the business of Borrower or its Subsidiary, (d) a Disposition to Borrower or
a Subsidiary, (e) Dispositions of accounts receivable in connection with a
Permitted Accounts Receivable Financing and (f) Dispositions identified on
Schedule 7.2.
"Permitted Liens" means:
(a) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain
payable without penalty, or to the extent that non-payment
thereof is permitted by Section 6.7,
- 20 -
<PAGE> 27
provided that no Notice of Lien has been filed or recorded
under the Code;
(b) carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other similar Liens
arising in the Ordinary Course of Business which are not
delinquent or remain payable without penalty or which are
being contested in good faith and by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture
or sale of the Property subject thereto or which do not in the
aggregate with respect to any one Property so encumbered have
a Material Adverse Effect;
(c) Liens (other than any Lien imposed by ERISA)
incurred or pledges or deposits required in the Ordinary
Course of Business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) (i) Liens on Property acquired by Borrower or
any of its Subsidiaries that were in existence at the time of
the acquisition of such Property and were not created in
contemplation of such acquisition; (ii) Liens existing on any
asset of any person at the time such person becomes a
Subsidiary of Borrower and not created in contemplation of
such event; (iii) Liens on any asset of any person existing at
the time such person is merged or consolidated with or into
Borrower or a Subsidiary of Borrower and not created in
contemplation of such event; and (iv) Liens arising out of the
refinancing, extension, renewal or refunding of any
obligations secured by any Lien permitted by this clause (d);
provided that such obligations are not increased and are not
secured by any additional assets;
(e) easements, rights-of-way, restrictions and
other similar encumbrances incurred in the Ordinary Course of
Business which do not in any case materially detract from the
value of the Property subject thereto or interfere with the
ordinary conduct of the businesses of Borrower and its
Subsidiaries;
(f) Liens arising solely by virtue of any
statutory or common law provision relating to banker's liens,
rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository
institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to
restrictions against access by Borrower in excess of those set
forth by regulations promulgated by the Federal Reserve Board,
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<PAGE> 28
and (ii) such deposit account is not intended by Borrower or
any of its Subsidiaries to provide collateral to the
depository institution;
(g) Liens on the Property of Borrower or any of
its Subsidiaries securing (i) the performance of bids, trade
contracts (other than borrowed money), leases, statutory
obligations, and (ii) obligations on surety and appeal bonds,
and (iii) other obligations of a like nature incurred in the
Ordinary Course of Business;
(h) Liens associated with a Permitted Accounts
Receivable Financing;
(i) Liens on Property or assets of a Subsidiary of
Borrower to secure indebtedness of such Subsidiary to Borrower
or its Subsidiaries;
(j) Liens securing financing for all or a portion of
the purchase or construction cost of real Property acquired
after the Closing Date to be used in the Ordinary Course of
the Business (provided that any such Lien shall not encumber
any other Property of Borrower or its Subsidiaries), including
Capital Lease Obligations and the ownership by third parties
of assets capitalized as finance leases under GAAP;
(k) Liens arising from purchase money financing of
equipment, including Capital Lease Obligations and the
ownership by third parties of assets capitalized as finance
leases under GAAP;
(l) Liens arising in the Ordinary Course of Business
in favor of a customer, which Liens are inherent in the
government contracting process; and
(m) Liens on assets identified as "Restricted Cash"
on Borrower's balance sheet which are payable to third
parties.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated organization,
business association, firm, joint venture, Governmental Authority, or other
entity.
"Plan" means an employee pension benefit plan (as defined in
Section 3(2) of ERISA) which any member of the Controlled Group sponsors or
maintains or to which Borrower or member of the Controlled Group makes or is
obligated to make contributions, and which is subject to the provisions of
Title IV of ERISA.
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<PAGE> 29
"Property" means any estate or interest in any kind of
property or asset, whether real, personal or mixed, and whether tangible or
intangible.
"Pro Rata Share" means, with respect to each Bank, the
percentage of the combined Commitments set forth opposite the name of that Bank
on Schedule 2.1.
"Qualified Plan" means a pension plan (as defined in Section
3(2) of ERISA) intended to be tax-qualified under Section 401(a) of the Code
and which any member of the Controlled Group sponsors, maintains, or to which
it makes or is obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding period covering at least five (5)
plan years, but excluding any Multiemployer Plan.
"Quarterly Payment Date" means each June 30, September 30,
December 31 and March 31.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder for which the
requirement of 30-day notice has not been waived, a withdrawal from a Plan
described in Section 4063 of ERISA, or a cessation of operations described in
Section 4062(e) of ERISA.
"Request for Extension of Credit" means a written request
substantially in the form of Exhibit A, duly completed and signed by a
Responsible Officer.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to or
binding upon the Person or any of its Property or to which the Person or any of
its Property is subject.
"Requisite Banks" means (a) as of any date of determination if
the Commitments are then in effect, Banks having in the aggregate 51% or more
of the combined Commitments then in effect and (b) as of any date of
determination if the Commitments have then been terminated and there are Loans
outstanding, Banks holding Loans aggregating 51% or more of the aggregate
outstanding principal amount of the Loans.
"Requisite Notice" means, unless otherwise provided herein,
(a) irrevocable telephonic notice to the intended recipient, promptly followed
by a written notice to such Person, or (b) irrevocable written notice to the
intended recipient, in each case (x) delivered or made to such Person at the
address, telephone number or facsimile number set forth on
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<PAGE> 30
Schedule 10.2 or as otherwise designated by such Person by Requisite Notice to
the Administrative Agent and (y) if made by Borrower, given by a Responsible
Officer. Any written notice shall be in the form, if any, prescribed in the
applicable section and may be given by facsimile provided such facsimile is
promptly confirmed by a telephone call to such recipient.
"Requisite Time" means, with respect to any of the actions
listed below, the time set forth opposite such action on or prior to the date
(the "relevant date") set forth below (all times are California time) :
<TABLE>
<CAPTION>
Action Time Date
----------------------- ---------- ---------------
<S> <C> <C>
Borrowing of, 8:00 a.m. Relevant date
prepayment of
or conversion into,
Base Rate Loans
Borrowing of, 10:00 a.m. 3 Business Days
continuation of, prior to
prepayment of or relevant date
conversion into
Offshore Rate Loans
of 1, 2, 3 or 6 months
Borrowing of, 10:00 a.m. 5 Business Days
continuation of, prior to
prepayment of or relevant date
conversion into
Offshore Rate Loans
of 9 or 12 months
Borrowing of, 10:00 a.m. 2 Business Days
continuation of, prior to
prepayment of or relevant date
conversion into
CD Rate Loans
Voluntary Reduction 10:00 a.m. 3 Business Days
of Commitments prior to
reduction date
Funds made available by 11:00 a.m. Relevant date
Banks or Borrower to
Administrative Agent
</TABLE>
"Responsible Officer" means the chief executive officer, the
president, the chief operating officer, the chief financial officer, the chief
legal officer, the treasurer or the controller of Borrower. Any document or
certificate hereunder that is signed or executed by a Responsible Officer
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<PAGE> 31
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of Borrower and to have
acted on behalf of Borrower.
"Subsidiary" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
"Synthetic Lease" means, with respect to any Person, (a) a
so-called synthetic lease, or (b) an agreement for the use or possession of
property creating obligations which do not appear on the balance sheet of such
Person but which, upon the insolvency or bankruptcy of such Person, would be
characterized as the Indebtedness of such Person (without regard to accounting
treatment).
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person, that the fact or
situation described therein is known by the Person (or, in the case of a Person
other than a natural Person, known by a Responsible Officer) making the
representation, warranty or other statement, or with the exercise of reasonable
due diligence under the circumstances (in accordance with the standard of what
a reasonable Person in similar circumstances would have done) would have been
known by the Person (or, in the case of a Person other than a natural Person,
would have been known by a Responsible Officer).
"type" of Loan means (a) a Base Rate Loan, (b) an Offshore
Rate Loan and (c) a CD Rate Loan.
"Unfunded Pension Liabilities" means with respect to any Plan
at any time, the amount (if any) by which (a) the value of all benefit
liabilities under such Plan, determined on a plan termination basis using the
assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA,
exceeds (b) the fair market value of all Plan assets allocable to such
liabilities under Title IV of ERISA (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.
1.2 Performance; Time. Except as otherwise specifically
provided herein, whenever any performance obligation hereunder shall be stated
to be due or required to be satisfied on a day other than a Business Day, such
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<PAGE> 32
performance shall be made or satisfied on the next succeeding Business Day. In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including"; the words "to" and "until"
each mean "to but excluding", and the word "through" means "to and including."
If any provision of this Agreement refers to any action taken or to be taken by
any Person, or which such Person is prohibited from taking, such provision
shall be interpreted to encompass any and all means, direct or indirect, of
taking, or not taking, such action.
1.3 Accounting Principles. Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall
be made, in accordance with GAAP, consistently applied; provided, that, if
Borrower notifies the Administrative Agent that Borrower wishes to amend any
provision hereof to eliminate the effect of any change in GAAP (or if the
Administrative Agent notifies Borrower that the Requisite Banks wish to amend
any provision hereof for such purpose), then such provision shall be applied on
the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such provision is
amended in a manner satisfactory to Borrower and the Requisite Banks.
1.4 Use of Defined Terms. Any defined term used in the
plural shall refer to all members of the relevant class, and any defined term
used in the singular shall refer to any one or more of the members of the
relevant class.
1.5 Rounding. Any financial ratios required to be maintained
by Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.6 Exhibits and Schedules. All Exhibits and Schedules to
this Agreement, either as originally existing or as the same may from time to
time be supplemented, modified or amended, are incorporated herein by this
reference. A matter disclosed on any Schedule shall be deemed disclosed on all
Schedules. References to Schedules which have been supplemented pursuant to
Section 4.2(d) shall be to such Schedules as so supplemented.
1.7 References to "Borrower and its Subsidiaries". Any
reference herein to "Borrower and its Subsidiaries" or the
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<PAGE> 33
like shall refer solely to Borrower during such times, if any, as Borrower
shall have no Subsidiaries.
1.8 Miscellaneous Terms. The term "or" is disjunctive; the
term "and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply
to males. The term "including" is by way of example and not limitation.
Section 2
COMMITMENTS; INTEREST, FEES, PAYMENT PROCEDURES
2.1 The Commitments.
(a) Subject to the terms and conditions set forth in this
Agreement, each Bank severally (and not jointly) agrees, to make, Convert and
Continue Loans during the Availability Period as Borrower may request;
provided, however, that the aggregate principal amount of all Loans made by
such Bank shall not exceed such Bank's Commitment at any time, and the
aggregate principal amount of all Loans made by all Banks shall not exceed the
combined Commitments at any time. Subject to the foregoing and other terms and
conditions hereof, Borrower may Borrow, Convert, Continue, prepay and reborrow
Loans as set forth herein without premium or penalty.
(b) Loans made by each Bank shall be evidenced by one or
more loan accounts or records maintained by such Bank in the Ordinary Course of
Business. Upon the request of any Bank made through the Administrative Agent,
such Bank's Loans may be evidenced by one or more Loan Notes, instead of or in
addition to loan accounts. (Each such Bank may endorse on the schedules
annexed to its Loan Note the date, amount and maturity of its Loans and
payments with respect thereto.) Such loan accounts, records or Notes shall be
conclusive absent manifest error of the amount of such Loans and payments
thereon. Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of Borrower to pay any amount owing
with respect to the Loans.
2.2 Borrowings, Conversions and Continuations of Loans.
(a) Borrower may irrevocably request a Borrowing, Conversion
or Continuation of Loans in a Minimum Amount by delivering a duly completed
Request for Extension of Credit by Requisite Notice not later than the
Requisite Time. All Borrowings, Conversions or Continuations shall constitute
requests for Base Rate Loans unless properly and timely otherwise designated as
set forth in the prior sentence. If
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<PAGE> 34
Borrower requests Offshore Rate Loans with Interest Periods of nine or twelve
months, Borrower shall request such Interest Periods by delivering a duly
completed Request for Extension of Credit therefor by Requisite Notice not
later than the Requisite Time for such a request, and the Administrative Agent
shall promptly notify each Bank of such request. Each Bank shall promptly
notify the Administrative Agent (who shall promptly notify Borrower) whether
such Bank, in its sole discretion, consents to funding an Offshore Rate Loan
for such requested Interest Period(s) for such Borrowing. If any Bank does not
so consent, Offshore Rate Loans shall not be available for such Interest
Period(s) for such Borrowing.
(b) Promptly following receipt of a Request for Extension
of Credit, the Administrative Agent shall notify each Bank of its Pro Rata
Share thereof by Requisite Notice. Each Bank shall make the funds for its Loan
available to the Administrative Agent at the Administrative Agent's Office not
later than the Requisite Time on the Business Day specified in such Request for
Extension of Credit. Upon satisfaction or waiver of the applicable conditions
set forth in Section 4, all funds so received shall be made available to
Borrower.
(c) The Administrative Agent shall promptly notify
Borrower and the Banks of the Offshore Rate applicable to any Offshore Rate
Loan upon determination of same.
(d) Unless the Administrative Agent and the Requisite
Banks otherwise consent, Loans with no more than 15 different Interest Periods
shall be outstanding at any one time.
(e) No Loans other than Base Rate Loans may be requested
or continued during the existence of a Default or Event of Default. During the
existence of a Default or Event of Default, the Requisite Banks may determine
that any or all of the then outstanding Loans other than Base Rate Loans shall
be Converted to Base Rate Loans. Such Conversion shall be effective upon
notice to Borrower from the Administrative Agent and shall continue so long as
such Default or Event of Default continues to exist.
(f) If a Loan is to be made on the same date that another
Loan is due and payable, Borrower or the Banks, as the case may be, shall make
available to the Administrative Agent the net amount of funds giving effect to
both such Loans and the effect for purposes of this Agreement shall be the same
as if separate transfers of funds had been made with respect to each such Loan.
(g) The failure of any Bank to make any Loan on any date
shall not relieve any other Bank of any obligation to make
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<PAGE> 35
a Loan on such date, but no Bank shall be responsible for the failure of any
other Bank to so make its Loan.
2.3 Prepayments.
(a) Borrower may at any time and from time to time
voluntarily prepay Loans in a Minimum Amount after delivering an irrevocable
Requisite Notice not later than the Requisite Time for prepayments. The
Administrative Agent will promptly notify each Bank thereof and of such Bank's
Pro Rata Share of such prepayment. Each prepayment must be made ratably to all
outstanding Loans borrowed on the same day.
(b) If for any reason the principal amount of the Loans
exceeds the Commitments as in effect or as reduced or any limitation set forth
in this Agreement, Borrower shall immediately prepay Loans sufficient to cure
such overage.
(c) Any prepayment of a Loan other than a Base Rate Loan
shall be accompanied by all accrued interest thereon, together with the costs
set forth in Section 3.5.
2.4 Voluntary Reduction of Commitments. Borrower shall have
the right, at any time and from time to time, without penalty or charge, upon
giving Requisite Notice not later than the Requisite Time, voluntarily to
reduce, permanently and irrevocably, in a Minimum Amount, or to terminate, the
then unused portion of the Commitments, provided that any such reduction or
termination shall be accompanied by payment of all accrued and unpaid facility
fees with respect to the portion of the Commitments being reduced or
terminated. The Administrative Agent shall promptly notify the Banks of any
reduction or termination of the Commitments under this Section. Each Bank's
Commitment shall be reduced by an amount equal to such Bank's Pro Rata Share
times the amount of such reduction.
2.5 Mandatory Reductions in Commitments.
(a) The combined Commitments shall automatically and
ratably be reduced by an amount equal to (i) 50% of the Net Cash Proceeds in
excess of $30,000,000 in the aggregate from Dispositions and (ii) 100% of the
Net Cash Proceeds in excess of $1,000,000 from any issuance of Indebtedness
(except Indebtedness of the type described in clauses (b), (c), (e) and (f) of
the definition thereof, purchase money financing, Indebtedness otherwise
incurred in the Ordinary Course of Business and Guaranty Obligations in respect
of such Indebtedness), on the date of receipt by Borrower or its Subsidiaries.
The combined Commitments shall be reduced to zero on the Maturity Date.
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<PAGE> 36
(b) All accrued facility fees to but not including the
effective date of each reduction shall be paid on the effective date thereof
such reduction.
(c) If, after giving effect to any of the foregoing
reductions, the aggregate principal amount of all Loans exceeds the combined
Commitments, Borrower shall immediately prepay Loans in an aggregate amount
equal to such excess. Any prepayment of a Loan other than a Base Rate Loan
shall be accompanied by all accrued interest thereon, together with the costs
set forth in Section 3.5.
2.6 Principal and Interest.
(a) If not sooner paid, the outstanding principal amount
of each Loan shall be due and payable on the Maturity Date.
(b) Subject to Section 2.7(c), Borrower shall pay
interest on the unpaid principal amount of the Loans (before and after default,
before and after maturity, before and after judgment, and before and after the
commencement of any Insolvency Proceeding) from the date borrowed until paid in
full (whether by acceleration or otherwise) on each Interest Payment Date for
each type of Loan at a rate per annum equal to the applicable interest rate
determined in accordance with the definition thereof, plus, in the case of
Offshore Rate Loans and CD Rate Loans, the Applicable Amount.
(c) If any amount of principal of or interest on any Loan
or any other amount payable under any Loan Document is not paid in full when
due (whether by acceleration or otherwise), Borrower shall pay interest on such
unpaid amount from the date such amount becomes due until the date such amount
is paid in full, and after as well as before any entry of judgment thereon, at
a fluctuating rate of interest rate equal to the Default Rate. Accrued and
unpaid interest on past due amounts (including, without limitation, interest on
past due interest) shall be compounded monthly, on the last day of each
calendar month, to the fullest extent permitted by Requirement of Law, and
payable on demand.
2.7 Fees.
(a) Facility Fee. Borrower shall pay to the Administrative
Agent, for the account of each Bank a facility fee equal to the Applicable
Amount for the facility fee times such Bank's Pro Rata Share of the daily
aggregate amount of the combined Commitments, regardless of usage (determined
daily on a per annum basis). The facility fee under the Commitments shall
accrue from the Closing Date to but excluding the Maturity Date and shall be
payable quarterly in arrears on each
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<PAGE> 37
Quarterly Payment Date and on the Maturity Date. The facility fee shall be
calculated quarterly in arrears; if there is any change in the Applicable
Amount during any quarter, the average daily amount shall be computed and
multiplied by the Applicable Amount separately for each period that such
Applicable Amount was in effect during such quarter.
(b) Agency Fee. Borrower shall pay to the Administrative
Agent an agency fee in such amounts and at such times as heretofore agreed upon
by letter agreement between Borrower and the Administrative Agent. The agency
fee is for the services to be performed by the Administrative Agent in acting
as Administrative Agent and is fully earned on the date paid. The agency fee
paid to the Administrative Agent is solely for its own account and is
nonrefundable.
2.8 Computation of Fees and Interest. Computations of
interest on Base Rate Loans shall be calculated on the basis of a year of 365
or 366 days, as the case may be, and the actual number of days elapsed;
computations of interest on all other types of Loans and all fees under this
Agreement shall be calculated on the basis of a year of 360 days and the actual
number of days elapsed, which results in a higher yield to the Banks than a
method based on a year of 365 or 366 days. Interest shall accrue on each Loan
for the day on which the Loan is made; interest shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid.
Notwithstanding anything in this Agreement to the contrary, interest in excess
of the maximum amount permitted by any Requirement of Law shall not accrue or
be payable hereunder, and any amount paid as interest hereunder which would
otherwise be in excess of such maximum permitted amount shall instead be
treated as a payment of principal.
2.9 Manner and Treatment of Payments among the Banks,
Borrower and the Administrative Agent.
(a) Unless otherwise provided herein, all payments by
Borrower or any Bank hereunder shall be made to the Administrative Agent at the
Administrative Agent's Office and account in immediately available funds not
later than the Requisite Time. All payments received after the Requisite Time
shall be deemed received on the next succeeding Business Day. All payments
shall be made in immediately available funds in lawful money of the United
States of America.
(b) Upon satisfaction of any applicable terms and
conditions set forth herein, the Administrative Agent shall promptly make any
amounts received in accordance with the prior subsection available in like
funds received as follows: (i) if payable to Borrower, by crediting the
Designated Deposit Account, and (ii) if payable to any Bank, by wire transfer
to
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<PAGE> 38
such Bank at the address specified in Schedule 10.2. The Administrative
Agent's determination, or any Bank's determination not contradictory thereto,
of any amount payable hereunder shall be conclusive in the absence of manifest
error.
(c) Subject to the definition of "Interest Period," if
any payment to be made by Borrower shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day and the extension of time shall be reflected in computing interest
and fees.
(d) Unless Borrower or any Bank has notified the
Administrative Agent prior to the date any payment to be made by it is due,
that it does not intend to remit such payment, the Administrative Agent may, in
its discretion, assume that Borrower or the Bank, as the case may be, has
timely remitted such payment and may, in its discretion and in reliance
thereon, make available such payment to the Person entitled thereto. If such
payment was not in fact remitted to the Administrative Agent, then:
(i) if Borrower failed to make such payment, each
Bank shall forthwith on demand repay to the Administrative
Agent the amount of such assumed payment made available to
such Bank, together with interest thereon in respect of each
day from and including the date such amount was made available
by the Administrative Agent to such Bank to the date such
amount is repaid to the Administrative Agent at the Federal
Funds Rate; and
(ii) if any Bank failed to make such payment, such
Bank shall on the Business Day following such Borrowing Date
pay to the Administrative Agent the amount of such assumed
payment made available to Borrower, together with interest
thereon in respect of each day from and including the date
such amount was made available by the Administrative Agent to
Borrower to the date such amount is paid to the Administrative
Agent at the Federal Funds Rate. Nothing herein shall be
deemed to relieve any Bank from its obligation to fulfill its
Commitments or to prejudice any rights which the
Administrative Agent or Borrower may have against any Bank as
a result of any default by such Bank hereunder.
2.10 Funding Sources. Nothing in this Agreement shall be
deemed to obligate any Bank to obtain the funds for any Loan in any particular
place or manner or to constitute a representation by any Bank that it has
obtained or will obtain the funds for any Loan in any particular place or
manner.
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<PAGE> 39
Section 3
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 Taxes. Each payment of any amount payable by Borrower
under this Agreement or any other Loan Document shall be made free and clear
of, and without reduction by reason of, any Applicable Taxes. To the extent
that Borrower is obligated by any Requirement of Law to make any deduction or
withholding on account of Applicable Taxes from any amount payable to any Bank
under this Agreement, Borrower shall (i) make such deduction or withholding and
pay the same to the relevant Governmental Authority and (ii) pay such
additional amount to that Bank as is necessary to result in that Bank's
receiving a net after-Applicable Tax amount equal to the amount to which that
Bank would have been entitled under this Agreement absent such deduction or
withholding. If a Bank shall become aware that receipt of such a payment
resulted in an excess payment or credit to that Bank on account of such
Applicable Taxes, that Bank shall promptly refund such excess to Borrower. In
addition, if any Governmental Authority imposes any penalties, interest or
other liabilities on any Bank by reason of Borrower failing to deduct or
withhold sufficient amounts on account of Applicable Taxes, or otherwise,
Borrower shall indemnify such Bank against such penalties, interest or other
liabilities; provided, however, that Borrower shall not be obligated to
indemnify any Bank for such amounts to the extent arising from such Bank's
failure to act in good faith in promptly notifying Borrower thereof within 45
days from the date on which such Bank became aware of such penalties, interest
or other liabilities. Payment by Borrower under this section shall be made
within 30 days from the date any Bank makes written demand for indemnification
hereunder, which demand shall set forth in reasonable detail the calculation of
the amount being requested from Borrower. If a Bank shall become aware that it
is entitled to receive a refund or credit from a relevant Governmental
Authority directly attributable to Applicable Taxes as to which it has been
indemnified by Borrower pursuant to this Section, it shall promptly notify
Borrower of the availability of such refund or credit and shall, within 30 days
after receipt of a request by Borrower (whether as a result of notification
that it has made to Borrower or otherwise), make a claim to such Governmental
Authority for such refund or credit at Borrower's expense so long as making
such a claim is not inconsistent with such Bank's internal policies and is not
otherwise disadvantageous to such Bank.
3.2 Illegality.
(a) If any Bank shall determine that the introduction of
any Requirement of Law after the date hereof, or any change in any Requirement
of Law or in the interpretation or
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<PAGE> 40
administration thereof after the date hereof, has made it unlawful, or that any
central bank or other Governmental Authority has asserted after the date hereof
that it is unlawful, for such Bank or its Lending Office to make Offshore Rate
Loans, then, on notice thereof by such Bank to Borrower (with a copy to the
Administrative Agent), the obligation of such Bank to make Offshore Rate Loans
shall be suspended until such Bank shall have notified Borrower (with a copy
to the Administrative Agent) that the circumstances giving rise to such
determination no longer exists.
(b) If any Bank shall determine that it is unlawful to
maintain any Offshore Rate Loan, Borrower shall prepay in full all Offshore
Rate Loans then outstanding, together with interest accrued thereon, either on
the last day of the Interest Period thereof if such Bank may lawfully continue
to maintain such Offshore Rate Loans to such day, or immediately, if the Bank
may not lawfully continue to maintain such Offshore Rate Loans, together with
any amounts required to be paid in connection therewith pursuant to Section
3.5.
3.3 Increased Costs and Reduction of Return. If any Bank
shall determine that, due to either (i) the introduction of or any change
(other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the CD Rate or the Offshore Rate)
in or in the interpretation of any law or regulation or (ii) the compliance
with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law, provided that if such
guideline or request does not have the force of law, compliance therewith is
customary for banks regulated in a manner similar to such Bank), after the date
hereof, there shall be any increase in the cost to such Bank of agreeing to
make or making, funding or maintaining any Offshore Rate Loans or CD Rate
Loans, then Borrower shall be liable for, and shall from time to time, within
10 Business Days after demand therefor by such Bank, pay to such Bank
additional amounts as are sufficient to compensate such Bank for such increased
costs.
3.4 Capital Adequacy. If any Bank shall determine that (a)
the introduction after the date hereof of any Capital Adequacy Regulation, (b)
any change after the date hereof in any Capital Adequacy Regulation, (c) any
change after the date hereof in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (d) compliance by
such Bank (or its Lending Office) or any corporation controlling such Bank,
with any Capital Adequacy Regulation; affects or would affect the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank and (taking into
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consideration such Bank's or such corporation's policies with respect to
capital adequacy and such Bank's desired return on capital) determines that the
amount of such capital is increased as a consequence of its Commitments, Loans,
credits or obligations under this Agreement, then, within 10 Business Days
after demand of such Bank, Borrower shall upon demand pay to such Bank, from
time to time as specified by such Bank, additional amounts sufficient to
compensate such Bank for such increase.
3.5 Breakfunding Costs. Borrower agrees to reimburse each
Bank and to hold each Bank harmless from any loss or expense which such Bank
may sustain or incur as a consequence of: (a) the failure of Borrower to make
any payment or prepayment of principal of any Offshore Rate Loan (including
payments made after any acceleration thereof); (b) the failure of Borrower to
Borrow, Continue or Convert an Offshore Rate Loan or a CD Rate Loan after
Borrower has given a Request for Extension of Credit; (c) the failure of
Borrower to make any prepayment of an Offshore Rate Loan or a CD Rate Loan
after Borrower has given a notice in accordance with Section 2.5; (d) if caused
by Borrower or as a result of any acceleration of the Loans by reason of a
Default or Event of Default, the prepayment of an Offshore Rate Loan or a CD
Rate Loan on a day which is not the last day of the Interest Period with
respect thereto; or (e) if caused by Borrower or required by the Requisite
Banks pursuant to Section 2.2(e), the Conversion of any Offshore Rate Loan or
CD Rate Loan to a Base Rate Loan on a day that is not the last day of the
respective Interest Period; including any such loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain its Offshore
Rate Loans or CD Rate Loans hereunder or from fees payable to terminate the
deposits from which such funds were obtained. Solely for purposes of
calculating amounts payable by Borrower to a Bank under this Section, (i) each
Offshore Rate Loan (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at the LIBOR used
in determining the Offshore Rate for such Offshore Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Offshore Rate Loan is
in fact so funded, and (ii) each CD Rate Loan made by each Bank (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the Certificate of Deposit Rate used in
determining the CD Rate for such CD Rate Loan by the issuance of its
certificate of deposit in a comparable amount and for a comparable period,
whether or not such CD Rate Loan is in fact so funded.
3.6 Inability to Determine Rates. If the Requisite Banks
shall have advised the Agent of the Requisite Banks' determination that for any
reason adequate and reasonable means
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do not exist for ascertaining the Offshore Rate for any requested Interest
Period with respect to a proposed Offshore Rate Loan or CD Rate Loan or that
the Offshore Rate or CD Rate applicable pursuant to Section 2.7(b) for any
requested Interest Period with respect to a proposed Offshore Rate Loan or CD
Rate Loan does not adequately and fairly reflect the cost to such Bank of
funding such Loan, the Administrative Agent will forthwith give notice of such
determination to Borrower. Thereafter, the obligation of the Banks to make or
maintain CD Rate Loans or Offshore Rate Loans, as the case may be, hereunder
shall be suspended until the Requisite Banks revoke such notice in writing to
Borrower and the Administrative Agent; provided, however, that no outstanding
CD Rate Loan or Offshore Rate Loan shall be terminated prior to the expiration
of the Interest Period unless required by law. Upon receipt of such notice,
Borrower may revoke any Request for Extension of Credit then submitted by it.
If Borrower does not revoke such notice, each Bank shall make, Convert or
Continue its Offshore Rate Loan, as proposed by Borrower, in the amount
specified in the applicable notice submitted by Borrower, but such Loans shall
be made, Converted or Continued as Base Rate Loans instead of CD Rate Loans or
Offshore Rate Loans.
3.7 Matters Applicable to all Requests for Compensation.
(a) Borrower shall not be required to compensate any Bank
under Section 3.3 or 3.4 for amounts allocable to any period more than 30 days
prior to the date that such Bank initially notifies Borrower that it intends to
claim compensation under such Sections; provided, however, that if such claim
relates to any cost or increase that has been retroactively imposed upon such
Bank, Borrower shall be required to compensate such Bank for amounts allocable
to the period since the date such cost or increase was so imposed upon such
Bank, provided that such Bank notifies Borrower that it intends to claim such
compensation within 60 days of such retroactive cost or increase having been
imposed.
(b) The Administrative Agent and any Bank shall provide
reasonable detail to Borrower regarding the manner in which the amount of any
payment to the Administrative Agent or that Bank under this Section 3 has been
determined, concurrently with demand for such payment. The Administrative
Agent's or any Bank's determination of any amount payable under this Section 3
shall be conclusive in the absence of manifest error.
(c) For purposes of calculating amounts payable under
this Section 3 any Loans shall be deemed to have been funded at the underlying
applicable interest rate set forth in
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<PAGE> 43
the definition thereof whether or not such Loans was, in fact, so funded.
(d) All of Borrower's obligations under this Section 3
shall survive termination of the Commitments and payment in full of all Loans.
(e) Upon (i) Borrower becoming obligated for any taxes
with respect to any Bank pursuant to Section 3.1, (ii) any Bank making a claim
for compensation under Section 3.3 or Section 3.4), or (iii) any Bank invoking
Section 3.6, such Bank, upon not less than 10 Business Days' Requisite Notice
from Borrower (with a copy to the Administrative Agent), shall execute and
deliver a Notice of Assignment and Acceptance covering that Bank's Pro Rata
Share in favor of such Eligible Assignee as Borrower may designate, subject to
payment in full by such Eligible Assignee of all principal, interest,
compensation, fees and other amounts owing to such Bank through the date of
assignment, including without limitation all amounts owing under this Section
3. Upon the removal of any Bank, it shall be released from all obligations and
liabilities under any Loan Document. An assignment pursuant to this Section
shall be governed by the provisions of Section 10.5 other than the Minimum
Amount limitation therein contained. Alternatively, Borrower may, upon 10
Business Days' notice to the Administrative Agent (who shall notify each Bank)
reduce the combined Commitments by an amount equal to that Bank's Pro Rata
Share (and, for this purpose, no Minimum Amounts shall apply), and in
connection therewith, deliver to the Administrative Agent for the account of
such Bank, the amounts, described in the first sentence above and release such
Bank from its Pro Rata Share.
Section 4
CONDITIONS
4.1 Conditions Precedent to Closing Date. The effectiveness
of this Agreement is subject to the condition that the Administrative Agent
shall have received on or before the Closing Date all of the following, in form
and substance satisfactory to all Banks:
(a) Credit Agreement. This Agreement executed by
Borrower, the Administrative Agent and all Banks;
(b) Notes. If requested by a Bank, Notes executed by
Borrower in favor of such Bank;
(c) Resolutions; Incumbency of Borrower. (i) Copies of
the resolutions of the board of directors of Borrower
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<PAGE> 44
approving and authorizing the execution, delivery and performance by Borrower
of the Agreement and the other Loan Documents to be delivered by Borrower
hereunder, and authorizing the borrowing of the Loans, certified as of the
Closing Date by the Secretary or an Assistant Secretary of Borrower and (ii) a
certificate of the Secretary or Assistant Secretary of Borrower certifying the
names and true signatures of the officers of Borrower authorized to execute,
deliver and perform the Loan Documents to be delivered by Borrower hereunder;
(d) Articles of Incorporation; By-Laws and Good Standing
of Borrower. Each of the following documents: (i) the articles or certificate
of incorporation of Borrower as in effect on the Closing Date, certified by the
Secretary of State of the state of incorporation of Borrower as of a recent
date, and the bylaws of Borrower as in effect on the Closing Date, certified by
the Secretary or Assistant Secretary of Borrower as of the Closing Date; and
(ii) a good standing certificate for Borrower from the Secretary of State of
Delaware as of a recent date;
(e) Opinion of Counsel. An opinion of corporate counsel
and addressed to the Administrative Agent and the Banks substantially in the
form of Exhibit E;
(f) Officer's Certificate. A certificate of a
Responsible Officer dated the Closing Date certifying that (i) the
representations and warranties contained in Section 5 are true and correct in
all material respects, (ii) no Default or Event of Default has occurred and is
continuing, and (iii) there has occurred since January 31, 1997, no event or
circumstance that could reasonably be expected to result in a Material Adverse
Effect;
(g) Payment of Agency Fee. The agency fees payable on
the Closing Date shall have been paid; and
(h) Other Documents. Such other approvals, opinions or
documents as the Banks may reasonably request by notice to Borrower prior to
the Closing Date.
4.2 Conditions Precedent to Effective Date. The obligation
of each Bank to make its initial Extension of Credit hereunder is subject to
the condition that all conditions precedent set forth in Section 4.1 have been
satisfied or waived by the Administrative Agent, and the Administrative Agent
shall have received on or before the Effective Date all of the following, in
form and substance satisfactory to the Administrative Agent:
(a) Completion of Bellcore Acquisition.
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<PAGE> 45
(i) Evidence that the Bellcore Acquisition is
being, or concurrently herewith is being, completed on the
Effective Date substantially in accordance with the Bellcore
Purchase Agreement, which, except as set forth in Schedule
4.2(a)(i), is in substantially the form of such documents
previously provided to the Administrative Agent, and, except
as set forth in Schedule 4.2(a)(i), the Bellcore Acquisition
is being completed substantially in accordance with the terms
of the Bellcore Purchase Agreement without any material waiver
or amendment not consented to by the Banks; provided that
changes to schedules 4.3(a), 4.3(c), 4.7, 4.8, 4.9(a) and 4.10
to the Bellcore Purchase Agreement shall not be deemed
material for purposes of this subsection. The Bellcore
Purchase Agreement is in full force and effect and, to
Borrower's knowledge, no party is in default thereunder. All
necessary or required material approvals, consents,
exemptions, authorizations, and other actions by, or notices
to, or filings with, all Governmental Authorities in
connection with the completion of the Bellcore Acquisition
have been obtained;
(ii) after giving effect to the Bellcore Acquisition:
(A) the representations and warranties contained in Section 5
are true and correct in all material respects, (B) no Default
or Event of Default has occurred and is continuing or would
result therefrom, and (C) there has occurred since January 31,
1997, no event or circumstance that could reasonably be
expected to result in a Material Adverse Effect;
(iii) before and after giving effect to the Bellcore
Acquisition, no Bellcore Material Adverse Effect has occurred;
and
(iv) no legal or arbitral proceedings shall be
pending or threatened by or before any Governmental Authority
with respect to the Bellcore Acquisition that seeks to enjoin,
restrict or prevent the Bellcore Acquisition or otherwise to
impose materially adverse conditions upon the Bellcore
Acquisition or upon Borrower or its Subsidiaries after
consummation of the Bellcore Acquisition;
(b) Officer's Certificate re Bellcore Acquisition. A
certificate of a Responsible Officer dated the Effective Date:
(i) attaching thereto, to the extent not previously
delivered to the Administrative Agent, a true, correct and
complete copy of the Bellcore Purchase Agreement; and
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<PAGE> 46
(ii) stating that the matters set forth in Section
4.2(a) are true and correct;
(c) Termination of Existing Agreements. Evidence that
Borrower has terminated, or concurrently with the initial funding hereunder
will be terminating, all commitments under Existing Agreements and shall have
paid all amounts owing to the banks thereunder;
(d) Supplements to Schedules. Supplements to Schedule
5.7 (ERISA Plans), Schedule 5.12 (Subsidiaries) and Schedule 7.1 (Existing
Liens) reflecting the Bellcore Acquisition; and
(e) Payment of Attorney Costs. All Attorney Costs of the
Administrative Agent in connection with the preparation of the Loan Documents
payable pursuant to Section 10.4, and invoiced to Borrower prior to the
Effective Date, shall have been paid.
4.3 Any Extensions of Credit. The obligation of each Bank to
make any Extension of Credit is subject to the satisfaction of the following
conditions precedent on the relevant date:
(a) Request for Extension of Credit. The Administrative
Agent shall have timely received a duly completed Request for Extension of
Credit by Requisite Notice by the Requisite Time;
(b) Continuation of Representations and Warranties.
Except for the representations and warranties set forth in Sections 5.6(b),
5.10(b) and 5.12 (which shall be made solely as of the Closing Date and the
Effective Date), the representations and warranties made by Borrower contained
in Section 5 shall be true and correct in all material respects on and as of
such borrowing date with the same effect as if made on and as of such date; and
(c) No Existing Default. No Default or Event of Default
shall exist or shall result from such Extension of Credit.
Each Request for Extension of Credit shall constitute a representation and
warranty by Borrower, as of the date of each such Request and as of the date of
each Extension of Credit that the conditions in this Section 4.3 are satisfied.
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<PAGE> 47
Section 5
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Administrative Agent
and the Banks that:
5.1 Corporate Existence and Power. Borrower and each of its
corporate Subsidiaries: (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation;
(b) has the corporate power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and execute, deliver, and perform its obligations, if any, under, the Loan
Documents; (c) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing
would not have a Material Adverse Effect; and (d) is in compliance with every
Requirement of Law except where such noncompliance would not have a Material
Adverse Effect.
5.2 Corporate Authorization; No Contravention. The
execution, delivery and performance by Borrower of each Loan Document to which
it is a party, have been duly authorized by all necessary corporate action, and
do not and will not: (a) contravene the terms of any of Borrower's
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document evidencing
any material Contractual Obligation to which Borrower is a party or any order,
injunction, writ or decree of any Governmental Authority to which Borrower or
its Property is subject; or (c) violate any Requirement of Law applicable to
Borrower.
5.3 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by Borrower of any Loan Document to which it
is a party, other than routine filings required to be made by Borrower in the
ordinary course of business after the date hereof.
5.4 Binding Effect. Each Loan Document to which Borrower is
a party constitutes the legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their respective terms, except
as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of
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<PAGE> 48
creditors' rights generally or by equitable principles relating to
enforceability.
5.5 Litigation. There are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of Borrower, threatened,
at law, in equity, in arbitration or before any Governmental Authority, against
Borrower, its Subsidiaries or any of their respective Properties which: (a)
purport to affect or pertain to this Agreement, or any other Loan Document, or
any of the transactions contemplated hereby or thereby; or (b) have a
reasonable possibility of an adverse decision which would have a Material
Adverse Effect. No injunction, writ, temporary restraining order or any order
of any nature has been issued by any court or other Governmental Authority
against Borrower purporting to enjoin or restrain the execution, delivery and
performance of this Agreement or any other Loan Document, or directing that the
transactions provided for herein or therein not be consummated as herein or
therein provided.
5.6 No Event of Default.
(a) No Event of Default exists or would result from the
incurring of any Obligations by Borrower.
(b) Neither Borrower nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation in any respect
which, individually or together with all such defaults, would reasonably be
expected to have a Material Adverse Effect.
5.7 ERISA Compliance.
(a) Schedule 5.7 lists all Plans maintained or sponsored
by Borrower or to which it is obligated to contribute, and separately
identifies Plans intended to be Qualified Plans and Multiemployer Plans. Each
Plan other than a Multiemployer Plan is in compliance, and, with respect to
each Multiemployer Plan, Borrower has no knowledge that such Multiemployer Plan
is not in compliance, in all material respects with the applicable provisions
of ERISA, the Code and other Federal or applicable state law that is not
preempted by ERISA. Each Qualified Plan has been determined by the Internal
Revenue Service ("IRS") to qualify under Section 401 of the Code, and the
trusts created thereunder have been determined to be exempt from tax under the
provisions of Section 501 of the Code, and to the best knowledge of Borrower
nothing has occurred which would cause the loss of such qualification or
tax-exempt status.
(b) There is no outstanding liability (excluding PBGC
premiums due but not delinquent under Section 4001 of ERISA)
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<PAGE> 49
under Title IV of ERISA with respect to any Plan maintained or sponsored by
Borrower or any ERISA Affiliate (as to which Borrower is or may reasonably be
expected to be liable), nor with respect to any Plan to which Borrower or any
ERISA Affiliate (wherein Borrower is or may be liable) contributes or is
obligated to contribute, which would reasonably be expected to have a Material
Adverse Effect. None of the Qualified Plans has Unfunded Pension Liabilities
as to which Borrower is or may be liable, and which would reasonably be
expected to have a Material Adverse Effect.
(c) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan maintained or sponsored by Borrower or to
which Borrower is obligated to contribute and as to which Borrower is or may
reasonably be expected to be liable, and which would reasonably be expected to
have a Material Adverse Effect. There are no pending or, to the best knowledge
of Borrower, threatened claims, actions or lawsuits, other than routine claims
for benefits in the usual and ordinary course, asserted or instituted against
(i) any Plan maintained or sponsored by Borrower or its assets, (ii) any member
of the Controlled Group with respect to any Qualified Plan of Borrower, or
(iii) any fiduciary with respect to any Plan for which Borrower may be directly
or indirectly liable, through indemnification obligations or otherwise which in
each case would reasonably be expected to have a Material Adverse Effect.
Borrower has not transferred any Unfunded Pension Liability outside of the
Controlled Group or otherwise engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA which has a reasonable likelihood of having a
Material Adverse Effect.
5.8 Regulations G, T, U and X. No part of the proceeds of
any Loan hereunder will be used to purchase or carry, or to extend credit to
others for the purpose of purchasing or carrying, any Margin Stock in violation
of Regulations G, T, U and X.
5.9 Taxes. Borrower and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be filed, and
have paid all material Federal and other taxes, assessments, fees and other
governmental charges levied or imposed upon them or their Properties, income or
assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP.
5.10 Financial Condition.
(a) The audited consolidated financial statements of
financial condition of Borrower and its Subsidiaries dated
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<PAGE> 50
January 31, 1997, and the related consolidated statements of operations,
shareholders' equity and cash flows for the Fiscal Year ended on that date:
(i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein; and (ii)
are complete and accurate in all material respects and fairly present, in all
material respects, the financial condition of Borrower and its consolidated
Subsidiaries as of the date thereof and results of operations for the period
covered thereby.
(b) Since January 31, 1997, there has been no Material
Adverse Effect.
5.11 Environmental Matters. To the knowledge of the
Responsible Officers of Borrower, the on-going operations of Borrower and each
of its Subsidiaries comply in all respects with all Environmental Laws, except
such non-compliance which would not reasonably be likely to have a Material
Adverse Effect. To the knowledge of the Responsible Officers of Borrower,
Borrower and each of its Subsidiaries have obtained all licenses, permits,
authorizations and registrations required under any Environmental Law
("Environmental Permits") necessary for its ordinary course operations, all
such Environmental Permits are in good standing, and Borrower and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Environmental Permits, except where the failure to obtain or maintain such
Environmental Permits or such noncompliance would not be reasonably likely to
have a Material Adverse Effect.
5.12 Subsidiaries. As of the Closing Date and the Effective
Date, Borrower has no Subsidiaries other than those specifically disclosed on
Schedule 5.12.
5.13 Insurance. The material real Properties of Borrower and
its Subsidiaries are insured with financially sound and reputable insurance
companies (except to the extent self-insurance is permitted pursuant to Section
6.6), in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar Properties in localities where Borrower or such Subsidiary operates.
5.14 Full Disclosure. No written information furnished to
the Administrative Agent or any Bank by Borrower contains any untrue statement
of a material fact or omits any material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they are made, not misleading on and as of the date of such written
information.
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<PAGE> 51
5.15 Public Utility Holding Company Act; Investment Company
Act. Borrower is not a "holding company", or a "subsidiary company" of a
"holding company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended. Borrower is not and is not required to be registered as
an "investment company" under the Investment Company Act of 1940.
5.16 Title to Properties. Borrower and each of its
Subsidiaries has good and marketable title to, or valid leasehold interests in,
all real Property necessary or used in the ordinary conduct of its business,
except for Liens permitted by Section 7.1 and for such defects in title as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 6
AFFIRMATIVE COVENANTS
So long as any principal of, or interest on, any Loan or fee
due hereunder remains unpaid, or any portion of the Commitments remains in
force:
6.1 Financial Statements. Borrower shall deliver to the
Administrative Agent, with sufficient copies for each Bank:
(a) as soon as available, but not later than 120 days
after the end of each Fiscal Year, a copy of the audited consolidated balance
sheet of Borrower and its Subsidiaries as at the end of such year and the
related statements of income and cash flows for such Fiscal Year, setting forth
in each case in comparative form the figures for the previous year, and
accompanied by the opinion of Price Waterhouse or another nationally-recognized
independent public accounting firm which report shall state that such
consolidated financial statements present fairly, in all material respects, the
financial position of Borrower and its Subsidiaries for the periods indicated
in conformity with GAAP applied on a basis consistent with prior years. Such
opinion shall not be qualified or limited because of a restricted or limited
examination by such accountant of any material portion of Borrower's or any
Subsidiary's records;
(b) as soon as available, but not later than 60 days
after the end of each of the first three Fiscal Quarters of each year, a copy
of the unaudited consolidated balance sheet of Borrower and its Subsidiaries as
of the end of such quarter and the related consolidated statements of income
and cash flows for the period commencing on the first day and ending on the
last day of such quarter, setting forth the financial position and the results
of operations of Borrower and its
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<PAGE> 52
Subsidiaries in conformity with GAAP applied on a basis consistent with prior
years, subject to changes resulting from audit and normal year- end
adjustments;
(c) as soon as available, but not later than 120 days
after the end of each Fiscal Year, a copy of the unaudited consolidating
balance sheet of Bellcore as at the end of such year and the related
consolidating statements of income and cash flows for such Fiscal Year, setting
forth in each case in comparative form the figures for the previous year; and
(d) as soon as available, but not later than 60 days
after the end of each of the first three Fiscal Quarters of each year, a copy
of the unaudited consolidating balance sheet of Bellcore as of the end of such
quarter and the related consolidating statements of income and cash flows for
the period commencing on the first day and ending on the last day of such
quarter, setting forth the financial position and the results of operations of
Bellcore, subject to changes resulting from audit and normal year-end
adjustments.
6.2 Certificates; Other Information. Borrower shall deliver
to the Administrative Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial
statements referred to in Sections 6.1(a), 6.1(b), 6.1(c) and 6.1(d), a
Compliance Certificate signed by a Responsible Officer; and
(b) promptly, such additional business, financial,
corporate affairs and other information in form and detail satisfactory to the
Agent and the Requisite Banks as the Administrative Agent, at the request of
any Bank, may from time to time reasonably request.
6.3 Notices. Promptly upon a Responsible Officer of Borrower
becoming aware of the same, Borrower shall promptly notify the Administrative
Agent (who shall notify each Bank):
(a) of the occurrence of any Default or Event of Default;
(b) of any dispute, litigation, investigation, proceeding
or suspension which may exist at any time between Borrower or any of its
Subsidiaries and any Governmental Authority or any Person which would
reasonably be expected to have a Material Adverse Effect;
(c) upon, but in no event later than 10 days after, a
Responsible Officer becoming aware of (i) any and all enforcement, cleanup,
removal or other governmental or
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<PAGE> 53
regulatory actions instituted, completed or threatened against Borrower, any of
its Subsidiaries or any of their respective Properties pursuant to any
applicable Environmental Laws, and (ii) any other material Environmental
Claims, which in the case of clauses (i) and (ii) would reasonably be expected
to have a Material Adverse Effect;
(d) of any ERISA Event affecting Borrower or any member
of its Controlled Group (but in no event more than ten days after such ERISA
Event) together with (i) a copy of any notice with respect to such ERISA Event
that may be required to be filed with the PBGC and (ii) any notice delivered by
the PBGC to Borrower or any member or its Controlled Group with respect to such
ERISA Event;
(e) any public announcement of any change in the Pricing
Ratings; and
(f) of any material change in accounting policies or
financial reporting practices by Borrower or any of its Subsidiaries.
Each notice pursuant to this Section shall be accompanied by a
written statement by a Responsible Officer of Borrower setting forth details of
the occurrence referred to therein, and stating what action (if any is
required) Borrower proposes to take with respect thereto.
6.4 Preservation of Corporate Existence, Etc. Borrower
shall, and shall cause Bellcore to, preserve and maintain in full force and
effect its corporate existence and good standing under the laws of its state or
jurisdiction of incorporation and preserve and maintain in full force and
effect all rights, privileges, qualifications, permits, licenses and franchises
necessary or desirable in the normal conduct of its business the
non-preservation of which would reasonably be expected to have a Material
Adverse Effect; provided that nothing herein shall prevent to the extent not
otherwise prohibited by the provisions of Section 7.2 or 7.3, a consolidation
or merger of Borrower or Bellcore.
6.5 Maintenance of Property. Borrower shall, and shall cause
Bellcore to, maintain and preserve all its Property which is used or useful in
its business in good working order and condition, ordinary wear and tear
excepted, in Borrower's reasonable judgment the non-maintenance or
non-preservation of which would reasonably be expected to have a Material
Adverse Effect; provided that nothing in this Section shall require the making
of any repair or replacement of or to any particular Property that would not be
required in the exercise of sound business judgment.
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6.6 Insurance. Borrower shall, and shall cause each of its
Subsidiaries to, maintain with financially sound and reputable independent
insurers, insurance with respect to its Properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons; including workers'
compensation insurance, public liability and Property and casualty insurance;
provided that Borrower or any of its Subsidiaries may self-insure to the extent
that it maintains adequate reserves therefor and self-insurance is customary
and prudent in its business judgment.
6.7 Compliance with Laws. Borrower shall, and shall cause
each of its Subsidiaries to, comply, in all material respects with any
Requirement of Law of any Governmental Authority having jurisdiction over it or
its business (including the Federal Fair Labor Standards Act), except such
Requirement of Law the non-compliance with which would not be reasonably
expected to have a Material Adverse Effect.
6.8 Inspection of Property and Books and Records. Borrower
shall, and shall cause each of its Subsidiaries to, maintain proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of Borrower and such Subsidiaries.
Borrower shall permit, and shall cause each of its Subsidiaries to permit,
representatives and independent contractors of the Administrative Agent or any
Bank to visit and inspect any of their respective Properties, to examine their
respective corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants (provided that Borrower may, if it chooses, be present at any such
discussions) at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice to Borrower;
provided that the foregoing shall be subject to compliance with applicable
security regulations of any Governmental Authority and shall not require
Borrower to permit inspection of any Properties or financial or operating
records to an extent that would require Borrower or any of its Subsidiaries to
reveal any of its trade secrets, research data or proprietary information which
its management in good faith believes to be irrelevant to this Agreement.
6.9 Environmental Laws. Borrower shall, and shall cause each
of its Subsidiaries to, conduct its operations and keep and maintain its
Properties in compliance with all
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Environmental Laws, except for such non-compliance as would not reasonably be
expected to have a Material Adverse Effect.
6.10 Use of Proceeds. Borrower shall use the proceeds of the
Loans to fund the purchase price of the Bellcore Acquisition and related
expenses and for working capital and other general corporate purposes not in
contravention of any Requirement of Law.
Section 7
NEGATIVE COVENANTS
So long as any principal of, or interest on, any Loan or fee
due hereunder remains unpaid, or any portion of the Commitments remains in
force, Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly:
7.1 Liens, Negative Pledges. Make, create, incur, assume or
suffer to exist any Lien of any nature upon or with respect to any of their
respective Properties, whether now owned or hereafter acquired, except:
(a) Liens securing Indebtedness and other obligations
existing on the Closing Date, and, in the case of Liens securing Indebtedness
and other obligations in excess of $250,000 set forth in Schedule 7.1, and any
Lien securing any Indebtedness permitted hereunder that replaces any such Lien
provided that such replacement Lien does not encumber any additional Property;
(b) Liens securing Indebtedness and other obligations of
Bellcore existing on the Effective Date and, in the case of Liens securing
Indebtedness in excess of $250,000 set forth in a supplement to Schedule 7.1,
and any Lien securing any Indebtedness permitted hereunder that replaces any
such Lien provided that such replacement Lien does not encumber any additional
Property;
(c) Liens consisting of judgment or judicial attachment
liens, provided that the enforcement of such Liens is effectively stayed and
all such liens in the aggregate at any time outstanding for Borrower and its
Subsidiaries do not exceed $10,000,000;
(d) Liens securing obligations not exceeding $100,000,000
in the aggregate on (i) the assets of single purpose Subsidiaries and (ii)
assets of Borrower or any of its Subsidiaries incurred in connection with and
related solely to the toll collection business;
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(e) Permitted Liens;
(f) Liens in connection with Synthetic Leases permitted
under Section 7.5; and
(g) Liens not otherwise permitted by the foregoing
clauses of this Section provided that the aggregate amount of indebtedness or
other obligations secured by such other Liens permitted by this subsection (g)
does not at any time exceed an amount equal to 15% of Consolidated Net Worth.
7.2 Dispositions. Make any Disposition of its Property,
whether now owned or hereafter acquired, except for:
(a) Permitted Dispositions;
(b) any Disposition consisting of a merger or
consolidation permitted pursuant to Section 7.3; and
(c) Dispositions not otherwise permitted hereunder which
are made for fair market value not exceeding $50,000,000 in the aggregate in
any Fiscal Year; provided, that at the time of any such Disposition, no Event
of Default shall exist or shall result from such Disposition.
7.3 Mergers. Merge or consolidate with or into any Person,
except:
(a) any Subsidiary may merge with Borrower, provided that
Borrower shall be the continuing or surviving corporation, or with any one or
more Subsidiaries of Borrower;
(b) any Subsidiary of Borrower may sell all or
substantially all of its assets (upon voluntary liquidation or otherwise), to
Borrower or a Subsidiary of Borrower; and
(c) Borrower may merge with another corporation, provided
that Borrower shall be the surviving corporation, and that after giving effect
to such merger, no Default or Event of Default shall then have occurred or
exist.
7.4 Limitation on Guaranty Obligations. Create, incur,
assume, suffer to exist, or otherwise be liable with respect to, any Guaranty
Obligations, except for:
(a) guaranties of employee loans not exceeding $5,000,000
in aggregate principal amount outstanding at any time;
(b) Guaranty Obligations consisting of bid and
performance bonds for the benefit of third parties not
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exceeding $150,000,000 in aggregate principal amount at any time;
(c) Ordinary Course Guaranty Obligations; and
(d) other Guaranty Obligations not exceeding 15% of
Consolidated Net Worth.
The Guaranty Obligations limited by this Section 7.4 shall not include claims
for refunds or the imposition of charges made by customers of Borrower and its
Subsidiaries based on unsatisfactory work by Borrower or any of its
Subsidiaries in the Ordinary Course of Business, except that such claims shall
be included, and shall be taken into account, with respect to the other
covenants set forth in this Section 7 when recognized as liabilities on
Borrower's balance sheet in accordance with GAAP.
7.5 Synthetic Leases. Create, incur, assume, suffer to
exist, or otherwise be liable, directly or indirectly, with respect to, any
Synthetic Leases, except for Synthetic Leases related to Real Property having a
value (determined at the time of each transaction) not exceeding $175,000,000
in aggregate amount at any time.
7.6 Compliance with ERISA. To the extent an event or
condition specified in this Section has a reasonable likelihood of having a
Material Adverse Effect, (a) terminate any Plan subject to Title IV of ERISA,
(b) permit to exist any ERISA Event, (c) enter into any new Plan or modify any
existing Plan so as to increase its obligations thereunder except in the
Ordinary Course of Business or (d) permit the existence of Unfunded Pension
Liabilities.
7.7 Consolidated Net Worth. Permit its Consolidated Net
Worth at any time to be less than $448,000,000 plus 50% of each Fiscal Year's
Net Income (but without reduction for any losses in any Fiscal Year) for each
Fiscal Year commencing February 1, 1997 plus 75% of the Net Cash Proceeds of
any material corporate stock offering through an acquisition or private or
public equity offering after the Closing Date (other than from Net Cash
Proceeds received from employees' and pension plans' customary quarterly stock
purchases).
7.8 Leverage Ratio. Permit at any time the Leverage Ratio to
be greater than the ratio set forth below opposite
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such Fiscal Quarter or the period during which such Fiscal Quarter ends:
<TABLE>
<CAPTION>
Maximum
Period Ratio
-------------------- ------------
<S> <C>
Closing Date through
January 31, 1998 0.70 to 1.00
February 1, 1998 and
Thereafter 0.65 to 1.00
</TABLE>
7.9 Annualized Interest Coverage Ratio. Permit the
Annualized Interest Coverage Ratio to be less than 3.50 to 1.00 at any time.
7.10 Bellcore Funded Debt Ratio. Permit at any time the
Bellcore Funded Debt Ratio to exceed 1.75 to 1:00.
7.11 Accounting Changes. Make any significant change in
accounting treatment or reporting practices, except as required or permitted by
GAAP, or change the Fiscal Year of Borrower or of any of its consolidated
Subsidiaries.
7.12 Change in Nature of Business. Make any material change
in the nature of the business of Borrower and its Subsidiaries, taken as a
whole.
Section 8
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
8.1 Events of Default. The existence or occurrence of any
one or more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Non-Payment. Borrower fails to pay, (i) within one
day after the same shall become due, any amount of principal of any Loan, or
(ii) within five days after the same shall become due, any interest on any
Loan, fee or any other amount payable hereunder or pursuant to any other Loan
Document; or
(b) Representation or Warranty. Any material
representation or warranty by Borrower made or deemed made herein, in any Loan
Document, or which is contained in any certificate, document or financial or
other statement by Borrower, any of its Subsidiaries, or their respective
Responsible Officers, furnished at any time under this
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<PAGE> 59
Agreement, or in or under any Loan Document, shall prove to have been incorrect
in any material respect on or as of the date made or deemed made; or
(c) Specific Defaults. Borrower fails to perform or
observe any term, covenant or agreement contained in Section 7.3, 7.7, 7.8, 7.9
or 7.10; or
(d) Other Defaults. Borrower fails to perform or observe
any other term, covenant or agreement contained in any Loan Document not
specifically mentioned in this Section 8.1 and, such default shall continue
unremedied for a period of 30 days after notice by the Administrative Agent
thereof; or
(e) Cross Default. Borrower or any of its Subsidiaries
(i) fails to make any payment in respect of any Indebtedness (other than
non-recourse Indebtedness) owing to any Person (other than the Obligations
hereunder) when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) having an aggregate principal amount
(including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $25,000,000; or (ii) fails to perform or
observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness having an aggregate principal amount (including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$25,000,000, if the effect of such failure, event or condition is to cause, or
to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness
to be declared to be due and payable prior to its stated maturity; or
(f) Insolvency; Voluntary Proceedings. Borrower or any
of its material Subsidiaries, (i) ceases or fails to be solvent or generally
fails to pay, or admits in writing its inability to pay, its debts as they
become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) voluntarily ceases to conduct its business in the
ordinary course; (iii) commences any Insolvency Proceeding with respect to
itself; or (iv) takes any action to effectuate or authorize any of the
foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against Borrower or any of its
material Subsidiaries, or any writ, judgment, warrant of attachment, execution
or similar process, in each case relating to an Insolvency Proceeding, is
issued or levied against a substantial part of Borrower's or any material
Subsidiary's Properties, and any such proceeding or petition
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shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy; (ii) Borrower or any of its
material Subsidiaries admits the material allegations of a petition against it
in any Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) Borrower or any
of its material Subsidiaries acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
Property or business; or
(h) ERISA. Any of the following events or conditions
occurs or exists which has a reasonable likelihood of having a Material Adverse
Effect: (i) Borrower or an ERISA Affiliate shall fail to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under a Multiemployer Plan; (ii) Borrower
or an ERISA Affiliate shall fail to satisfy its contribution requirements under
Section 412(c)(11) of the Code, whether or not it has sought a waiver under
Section 412(d) of the Code; (iii) an ERISA Event; (iv) the IRS shall have
determined that a Plan that is intended to be qualified under Section 401(a) of
the Code is not qualified; or (v) the occurrence of any combination of events
listed in clauses (iii) through (iv) that involves a net increase in aggregate
Unfunded Pension Liabilities and other liabilities; or
(i) Monetary Judgments. One or more final
(non-interlocutory) judgments, orders or decrees shall be entered against
Borrower or any of its Subsidiaries, involving in the aggregate a liability
(not fully covered by independent third-party insurance and for which the
relevant insurer has acknowledged liability) as to any single or related series
of transactions, incidents or conditions, of $25,000,000 or more, and the same
shall remain unsatisfied, unvacated and unstayed pending appeal for a period of
30 days after the entry thereof or such later time as may be provided for the
filing of an appeal; or
(j) Change in Control. (i) Any Person (other than a Plan
or Plans) or two or more Persons (other than a Plan or Plans) acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities and Exchange Act of
1934, as amended), directly or indirectly, of securities of Borrower (or other
securities convertible into such securities) representing 20% or more of the
combined voting power of all securities of Borrower entitled to vote in the
election of directors, other than securities having such power only by reason
of the happening of a contingency; or (ii) individuals
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who at the beginning of any two year period constituted Borrower's Board of
Directors cease for any reason to constitute a majority of directors then in
office.
8.2 Remedies Upon Event of Default. Without limiting any
other rights or remedies of the Administrative Agent or the Banks provided for
elsewhere in this Agreement, or the other Loan Documents, or by any Requirement
of Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of
any Event of Default other than an Event of Default described in Section 8.1(f)
or 8.1(g), the Requisite Banks may request the Administrative Agent to, and the
Administrative Agent thereupon shall, terminate the Commitments and/or declare
all or any part of the unpaid principal of all Loans, all interest accrued and
unpaid thereon and all other amounts payable under the Loan Documents to be
forthwith due and payable, whereupon the same shall become and be forthwith due
and payable, without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived by Borrower.
(b) Upon the occurrence of any Event of Default described
in Section 8.1(f) or 8.1(g), the Commitments and all other obligations of the
Administrative Agent or the Banks and all rights of Borrower under the Loan
Documents shall terminate without notice to or demand upon Borrower, which are
expressly waived by Borrower and the unpaid principal of all Loans, all
interest accrued and unpaid thereon and all other amounts payable under the
Loan Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind, all of
which are expressly waived by Borrower.
(c) Upon the occurrence of any Event of Default, the
Administrative Agent shall, at the request of the Requisite Banks, or may with
the consent of the Requisite Banks, without notice to (except as expressly
provided for in any Loan Document) or demand upon Borrower, which are expressly
waived by Borrower (except as to notices expressly provided for in any Loan
Document), proceed to protect, exercise and enforce the rights and remedies of
the Administrative Agent and the Banks under the Loan Documents against
Borrower and such other rights and remedies as are provided by Requirement of
Law or equity.
(d) The rights provided for in this Agreement and the
other Loan Documents are cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement not existing or hereafter arising.
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<PAGE> 62
(e) The order and manner in which the Banks' rights and
remedies are to be exercised shall be determined by the Requisite Banks in
their sole discretion, and all payments received by the Administrative Agent
and the Banks, or any of them, shall be applied first to the costs and expenses
(including reasonable Attorneys Costs incurred by the Administrative Agent and
the Banks), and thereafter paid pro rata to the Banks in the same proportions
that the aggregate Obligations owed to each Bank under the Loan Documents bear
to the aggregate Obligations owed under the Loan Documents to all the Banks,
without priority or preference among the Banks. Regardless of how each Bank
may treat payments for the purpose of its own accounting, for the purpose of
computing Borrower's Obligations hereunder, payments shall be applied first, to
the costs and expenses of the Administrative Agent and the Banks, as set forth
above, second, to the payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due under each of the
Loan Documents), and third, to the payment of all other amounts (including
principal and fees) then owing to the Administrative Agent or the Banks under
the Loan Documents. No application of payments will cure any Event of Default,
or prevent acceleration, or continued acceleration, of amounts payable under
the Loan Documents, or prevent the exercise, or continued exercise, of rights
or remedies of the Banks hereunder or thereunder or under any Requirement of
Law or in equity.
Section 9
THE ADMINISTRATIVE AGENT
9.1 Appointment and Authorization. Subject to Section 9.7,
each Bank hereby irrevocably appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Administrative Agent by the terms
thereof or are reasonably incidental, as determined by the Administrative
Agent, thereto. This appointment and authorization is intended solely for the
purpose of facilitating the servicing of the Loans and does not constitute
appointment of the Administrative Agent as trustee for any Bank or as
representative of any Bank for any other purpose and, except as specifically
set forth in the Loan Documents to the contrary, the Administrative Agent shall
take such action and exercise such powers only in an administrative and
ministerial capacity.
9.2 Administrative Agent and Affiliates. Bank of America
National Trust and Savings Association (and each successor Administrative
Agent) has the same rights and powers
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under the Loan Documents as any other Bank and may exercise the same as though
it were not the Administrative Agent, and the term "Bank" or "Banks" includes
Bank of America National Trust and Savings Association in its individual
capacity. Bank of America National Trust and Savings Association (and each
successor Administrative Agent) and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of banking, trust or other
business with Borrower, any Subsidiary thereof, or any Affiliate of Borrower or
any Subsidiary thereof, as if it were not the Administrative Agent and without
any duty to account therefor to the Banks. Bank of America National Trust and
Savings Association (and each successor Administrative Agent) need not account
to any other Bank for any monies received by it for reimbursement of its costs
and expenses as Administrative Agent hereunder, or for any monies received by
it in any other capacity. The Administrative Agent shall not be deemed to hold
a fiduciary relationship with any Bank and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
9.3 Banks' Credit Decisions. Each Bank agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Bank or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Bank, and instead in reliance upon
information supplied to it by or on behalf of Borrower and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Bank also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Bank or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Bank, continue to make its own independent
credit analyses and decisions in acting or not acting under the Loan Documents.
9.4 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent
of the existence of a Default, the Administrative Agent may assume that no
Default has occurred and is continuing, unless the Administrative Agent (or the
Bank that is then the Administrative Agent) has received notice from Borrower
stating the nature of the Default or has received notice from a Bank stating
the nature of the Default and that such Bank considers the Default to have
occurred and to be continuing.
(b) The Administrative Agent has only those duties under
the Loan Documents as are expressly set forth therein.
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<PAGE> 64
(c) Except for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may assume that no Event
of Default has occurred and is continuing, the Administrative Agent may, but
shall not be required to, exercise its discretion to act or not act, except
that the Administrative Agent shall be required to act or not act upon the
instructions of the Requisite Banks (or of all the Banks, to the extent
required by Section 10.1) and those instructions shall be binding upon the
Administrative Agent and all the Banks, provided that the Administrative Agent
shall not be required to act or not act if to do so would be contrary to any
Loan Document or to applicable Requirement of Law or would result, in the
reasonable judgment of the Administrative Agent, in substantial risk of
liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in subsection (a), the Administrative Agent shall immediately give
notice thereof to the Banks and shall act or not act upon the instructions of
the Requisite Banks, or of all the Banks, as required hereunder, provided that
the Administrative Agent shall not be required to act or not act if to do so
would be contrary to any Loan Document or to applicable Requirement of Law or
would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent, and except that if
the Requisite Banks, or all the Banks, if required hereunder, fail, for five
Business Days after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent, in its sole
discretion, may act or not act as it deems advisable for the protection of the
interests of the Banks.
(e) The Administrative Agent shall have no liability to
any Bank for acting, or not acting, as instructed by the Requisite Banks, or
all the Banks, if required hereunder, notwithstanding any other provision
hereof.
9.5 Liability of Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, except for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat any Bank as a Bank until the Administrative
Agent receives notice of the assignment or transfer thereof, in form
satisfactory to the Administrative Agent, signed by the payee, and may treat
each Bank as the owner of that Bank's interest in the Obligations for all
purposes of this Agreement until the Administrative Agent receives
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notice of the assignment or transfer thereof, in form satisfactory to the
Administrative Agent, signed by that Bank.
(b) May consult with legal counsel (including in-house
legal counsel), accountants (including in-house accountants) and other
professionals or experts selected by it, or with legal counsel, accountants or
other professionals or experts for Borrower and/or their Subsidiaries or the
Banks, and shall not be liable for any action taken or not taken by it in good
faith in accordance with any advice of such legal counsel, accountants or other
professionals or experts.
(c) Shall not be responsible to any Bank for any
statement, warranty or representation made in any of the Loan Documents or in
any notice, certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents.
(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance or
observance by Borrower or its Subsidiaries of any of the terms, conditions or
covenants of any of the Loan Documents or to inspect the Property, books or
records of Borrower or its Subsidiaries.
(e) Will not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, effectiveness,
sufficiency or value of any Loan Document, any other instrument or writing
furnished pursuant thereto or in connection therewith.
(f) Will not incur any liability by acting or not acting
in reliance upon any Loan Document, notice, consent, certificate, statement,
request or other instrument or writing believed by it to be genuine and signed
or sent by the proper party or parties.
(g) Will not incur any liability for any arithmetical
error in computing any amount paid or payable by Borrower or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from any Bank
under any Loan Document, including, without limitation, principal, interest,
facility fees, Loans and other amounts; provided that, promptly upon discovery
of such an error in computation, the Administrative Agent, the Banks and (to
the extent applicable) Borrower and/or its Subsidiaries or Affiliates shall
make such adjustments as are necessary to correct such error and to restore the
parties to the position that they would have occupied had the error not
occurred.
9.6 Indemnification. Each Bank shall, ratably in accordance
with its Pro Rata Share (if the Commitments are then
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in effect) or in accordance with its proportion of the aggregate outstanding
Loans (if the Commitments have then been terminated), indemnify and hold the
Administrative Agent and its Affiliates, directors, officers, agents, employees
and attorneys harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including, without limitation, Attorneys
Costs that may be imposed on, incurred by or asserted against it or them in any
way relating to or arising out of the Loan Documents (other than Loan losses
incurred by reason of the failure of Borrower to pay the Loans) or any action
taken or not taken by it as Administrative Agent thereunder, except such as
result from its own gross negligence or willful misconduct. Without limitation
on the foregoing, each Bank shall reimburse the Administrative Agent upon
demand for that Bank's Pro Rata Share of any out-of-pocket cost or expense
incurred by the Administrative Agent in connection with the negotiation,
preparation, execution, delivery, amendment, waiver, restructuring,
reorganization (including a bankruptcy reorganization), enforcement or
attempted enforcement of the Loan Documents, to the extent that Borrower is
required by Section 10.4 to pay that cost or expense but fails to do so upon
demand. Nothing in this Section 9.6 shall entitle the Administrative Agent to
recover any amount from the Banks if and to the extent that such amount has
theretofore been recovered from Borrower or any of its Subsidiaries. To the
extent that the Administrative Agent is later reimbursed such cost or expense
by Borrower or any of its Subsidiaries, it shall return the amounts paid to it
by the Banks in respect of such cost or expense.
9.7 Successor Administrative Agent. The Administrative Agent
may, and at the request of the Requisite Banks shall, resign as Administrative
Agent upon 30 days' notice to the Banks and Borrower. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, the Borrower
shall appoint from among the Banks a successor Administrative Agent for the
Banks, unless an Event of Default has occurred and is continuing, in which case
such successor administrative agent shall be selected from among the Banks by
the Requisite Banks. If no successor Administrative Agent is appointed prior
to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Banks and Borrower,
a successor administrative agent from among the Banks. Upon the acceptance of
its appointment as successor administrative agent hereunder, such successor
Administrative Agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent" shall mean
such successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's
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resignation hereunder as Administrative Agent, the provisions of this Section
9, and Sections 10.4 and 10.16 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the Banks
shall perform all of the duties of the Administrative Agent hereunder until
such time, if any, as a successor administrative agent is appointed as provided
for above.
9.8 No Obligations of Borrower. Nothing contained in this
Section 9 shall be deemed to impose upon Borrower any obligation in respect of
the due and punctual performance by the Administrative Agent of its obligations
to the Banks under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Banks in respect of any
failure by the Administrative Agent or any Bank to perform any of its
obligations to the Administrative Agent or the Banks under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Banks, Borrower's obligations to
the Banks in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
9.9 Documentation Agent; Syndication Agent. None of the
Banks identified on the facing page or signature pages of this Agreement as
Documentation Agent or Syndication Agent shall have any right, power,
obligation, liability or responsibility or duty under this Agreement other than
those applicable to all Banks as such. Without limiting the foregoing, none of
the Banks so identified shall have or be deemed to have any fiduciary relations
with any Bank. Each Bank acknowledges that it has not relied, and will not
rely, on any of the Banks so identified in deciding to enter into this
Agreement or in taking any action hereunder.
Section 10
MISCELLANEOUS
10.1 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent
to any departure
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by Borrower therefrom, may in any event be effective unless in writing signed
by the Requisite Banks (and, in the case of any amendment, modification or
supplement of or to any Loan Document to which Borrower is a party, signed by
Borrower and, in the case of any amendment, modification or supplement
affecting the rights and duties of the Administrative Agent, signed by the
Administrative Agent), and then only in the specific instance and for the
specific purpose given; and, without the approval in writing of each Bank
affected thereby, no amendment, modification, supplement, termination, waiver
or consent may be effective:
(a) To decrease the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on, any Loan,
or to increase the amount of the Commitment or the Pro Rata Share of such Bank,
or to decrease the amount of any facility fee payable to such Bank, or any
other fee or amount payable to such Bank under the Loan Documents or to waive
an Event of Default consisting of the failure of Borrower to pay when due
principal, interest or any facility fee;
(b) To postpone any date fixed for any payment of
principal of, prepayment of principal of or any installment of interest on, any
Loan or any installment of any facility fee, or to extend the term of the
Commitments;
(c) To amend the provisions of the definition of
"Requisite Banks," Section 4 or this Section; or
(d) To amend any provision of this Agreement that
expressly requires the consent or approval of all the Banks.
Any amendment, modification, supplement, termination, waiver or consent
pursuant to this Section shall apply equally to, and shall be binding upon, all
the Banks and the Administrative Agent.
10.2 Notices. Except as otherwise expressly provided in the
Loan Documents, all notices, requests, demands, directions and other
communications provided for therein shall be given by Requisite Notice and
shall be effective as follows:
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Effective on earlier of
Mode of Delivery actual receipt and:
---------------- -----------------------
Courier On scheduled delivery date
Facsimile When transmission complete
Mail Fourth Business Day after
deposit in U.S. mail
Personal delivery When received
Telephone When answered
provided, however, that notice to the Administrative Agent pursuant to Section
2 or 9 shall not be effective until actually received by the Administrative
Agent. The Administrative Agent and any Bank shall be entitled to rely and act
on any notice purportedly given by or on behalf of Borrower even if such notice
(i) was not made in a manner specified herein, (ii) was incomplete, or (iii)
was not preceded or followed by any other notice specified herein or the terms
of such notice as understood by the recipient varied from any subsequent
related notice provided for herein. Borrower shall indemnify the
Administrative Agent and any Bank from any loss, cost, expense or liability as
a result of relying on any notice permitted herein.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any Bank or the Administrative
Agent, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
powers, privileges and remedies of the Administrative Agent and the Banks
provided herein or other Loan Document are cumulative and not exclusive of any
right, power, privilege or remedy provided by Requirement of Law or equity.
The terms and conditions of Section 9 are inserted for the sole benefit of the
Administrative Agent and the Banks; the same may be waived in whole or in part,
with or without terms or conditions, in respect of any Loan without prejudicing
the Administrative Agent's or the Banks' rights to assert them in whole or in
part in respect of any other Loan.
10.4 Costs and Expenses. Borrower shall, whether or not the
transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Administrative Agent within five
Business Days after demand for all reasonable costs and expenses incurred by
the Administrative Agent in connection
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with the development, preparation, delivery, administration and execution of,
and any amendment, supplement, waiver or modification to (in each case, whether
or not consummated), this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including the reasonable Attorney
Costs incurred by the Administrative Agent with respect thereto; and
(b) pay or reimburse the Administrative Agent and each
Bank after demand for all reasonable costs and expenses incurred by it in
connection with the enforcement after a Default or Event of Default, or
preservation of any rights or remedies (including in connection with any
"workout" or restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding) under this Agreement, any other Loan
Document, and any such other documents, including reasonable Attorney Costs
incurred by the Administrative Agent and any Bank.
10.5 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which
Borrower is a party will be binding upon and inure to the benefit of Borrower,
the Administrative Agent, each of the Banks, and their respective successors
and assigns, except that Borrower may not assign its rights hereunder or
thereunder or any interest herein or therein without the prior written consent
of all the Banks. Any Bank may at any time pledge its Note or any other
instrument evidencing its rights as a Bank under this Agreement to a Federal
Reserve Bank, but no such pledge shall release that Bank from its obligations
hereunder or grant to such Federal Reserve Bank the rights of a Bank hereunder
absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each
Bank may assign to one or more Eligible Assignees all or any portion of its Pro
Rata Share; provided that (i) such Eligible Assignee, if not then a Bank or an
Affiliate of the assigning Bank, shall be approved by each of the
Administrative Agent and Borrower (neither of which approvals shall be
unreasonably withheld or delayed; it being understood that it shall not be
deemed unreasonable to withhold such consent if based solely on the desire to
avoid the payment of additional costs or taxes), (ii) a copy of a Notice of
Assignment and Acceptance shall be delivered to the Administrative Agent, (iii)
except in the case of an assignment to an Affiliate of the assigning Bank, to
another Bank or of the entire remaining Commitment of the assigning Bank, the
assignment shall not assign a Pro Rata Share which is equivalent to less than
the Minimum Amount therefor, and (iv) the effective date of any such assignment
shall be as specified in the Notice of Assignment and
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Acceptance, but not earlier than the date which is five Business Days after the
date the Administrative Agent has received the Notice of Assignment and
Acceptance. Upon acceptance by the Administrative Agent of such Notice
Assignment and Acceptance, the Eligible Assignee named therein shall be a Bank
for all purposes of this Agreement, with the Pro Rata Share therein set forth
and, to the extent of such Pro Rata Share, the assigning Bank shall be released
from its further obligations under this Agreement. Borrower agrees that it
shall execute and deliver upon request (against delivery by the assigning Bank
to Borrower of any Note) to such assignee Bank, one or more Notes evidencing
that assignee Bank's Pro Rata Share, and to the assigning Bank if requested,
one or more Notes evidencing the remaining balance Pro Rata Share retained by
the assigning Bank.
(c) By executing and delivering a Notice of Assignment
and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that:
(i) other than the representation and warranty that it is the legal and
beneficial owner of the Pro Rata Share being assigned thereby free and clear of
any adverse claim, the assigning Bank has made no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness or sufficiency of this
Agreement or any other Loan Document; (ii) the assigning Bank has made no
representation or warranty and assumes no responsibility with respect to the
financial condition of Borrower or the performance by Borrower of the
Obligations; (iii) it has received a copy of this Agreement, together with
copies of the most recent financial statements delivered pursuant to Section
6.1 and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) it will, independently and without reliance upon the
Administrative Agent or any 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 action under this Agreement; (v) it appoints
and authorizes the Administrative Agent to take such action and to exercise
such powers under this Agreement as are delegated to the Administrative Agent
by this Agreement; and (vi) it will perform in accordance with their terms all
of the obligations which by the terms of this Agreement are required to be
performed by it as a Bank.
(d) After receipt of a completed Notice of Assignment and
Acceptance, and receipt of an assignment fee of $3,500 from such Eligible
Assignee, the Administrative Agent shall, promptly following the effective date
thereof, provide to Borrower and the Banks a revised Schedule 10.2 giving
effect thereto.
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(e) Each Bank may from time to time grant participations
to one or more banks or other financial institutions (including another Bank)
in a portion of its Pro Rata Share; provided, however, that (i) such Bank's
obligations under this Agreement shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other financial institutions
shall not be a Bank hereunder for any purpose except, if the participation
agreement so provides, for the purposes of Section 3 but only to the extent
that the cost of such benefits to Borrower does not exceed the cost which
Borrower would have incurred in respect of such Bank absent the participation,
(iv) Borrower, the Administrative Agent and the other Banks shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement, (v) the participation shall not restrict
an increase in the Commitments or in the granting Bank's Pro Rata Share, so
long as the amount of the participation interest is not affected thereby and
(vi) the consent of the holder of such participation interest shall not be
required for amendments or waivers of provisions of the Loan Documents other
than those which (A) extend the Maturity Date as to such participant or any
other date upon which any payment of money is due to such participant, (B)
reduce the rate of interest owing to such participant, any fee or any other
monetary amount owing to such participant or (C) reduce the amount of any
installment of principal owing to such participant.
10.6 Sharing of Setoffs. Each Bank severally agrees that if
it, through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower or otherwise, receives payment of the Obligations held by it
that is ratably more than all Extensions of Credit made by any other Bank,
through any means, then, subject to applicable Requirement of Law: (a) the
Bank exercising the right of setoff, banker's lien or counterclaim or otherwise
receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from the other Banks a participation in the
Obligations held by the other Banks and shall pay to the other Banks a purchase
price in an amount so that the share of the Obligations held by each Bank after
the exercise of the right of setoff, banker's lien or counterclaim or receipt
of payment shall be in the same proportion that existed prior to the exercise
of the right of setoff, banker's lien or counterclaim or receipt of payment;
and (b) such other adjustments and purchases of participations shall be made
from time to time as shall be equitable to ensure that all of the Banks share
any payment obtained in respect of the Obligations ratably in accordance with
each Bank's share of the Obligations immediately prior to, and without taking
into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise
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of the right of setoff, banker's lien, counterclaim or otherwise is thereafter
recovered from the purchasing Bank by Borrower or any Person claiming through
or succeeding to the rights of Borrower, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the extent of
the recovery, but without interest. Each Bank that purchases a participation
in the Obligations pursuant to this Section shall from and after the purchase
have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Bank were the
original owner of the Obligations purchased. Borrower expressly consent to the
foregoing arrangements and agree that any Bank holding a participation in an
Obligation so purchased may, to the fullest extent permitted by any applicable
Requirement of Law, exercise any and all rights of setoff, banker's lien or
counterclaim with respect to the participation as fully as if the Bank were the
original owner of the Obligation purchased.
10.7 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement in any number of separate counterparts,
each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with Borrower and the Administrative Agent.
10.8 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
10.9 No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of Borrower, the
Administrative Agent and the Banks, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents. Neither the Administrative Agent
nor any Bank shall have any obligation to any Person not a party to this
Agreement or other Loan Documents.
10.10 Time. Time is of the essence as to each term or
provision of this Agreement and each of the other Loan Documents.
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10.11 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT
THE PARTIES HERETO SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF
THE STATE OF CALIFORNIA OR OF THE UNITED STATES FOR THE CENTRAL DISTRICT OF
CALIFORNIA, COUNTY OF LOS ANGELES AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, BORROWER CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENT OF
LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. BORROWER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY CALIFORNIA LAW.
10.12 WAIVER OF JURY TRIAL. BORROWER, THE BANKS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE AGENT-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. BORROWER, THE BANKS AND THE ADMINISTRATIVE AGENT EACH
AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.13 Entire Agreement. This Agreement, together with the
other Loan Documents, embodies the entire agreement and understanding between
Borrower, the Administrative Agent and the Banks, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof, and any prior
arrangements made with respect to the payment by Borrower of (or any
indemnification for) any fees, costs or
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expenses payable to or incurred (or to be incurred) by or on behalf of the
Administrative Agent or any Bank.
10.14 Interpretation. This Agreement is the result of
negotiations between and has been reviewed by counsel to the Administrative
Agent, the Banks, Borrower and other parties, and is the product of all parties
hereto. Accordingly, this Agreement and the other Loan Documents shall not be
construed against the Administrative Agent or any Bank merely because of the
Administrative Agent's or any Bank's involvement in the preparation of such
documents and agreements.
10.15 Nature of Banks' Obligations. The obligations of the
Banks hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Banks or any of them pursuant hereto or thereto
may, or may be deemed to, make the Banks a partnership, an association, a joint
venture or other entity, either among themselves or with Borrower or any
Affiliate of Borrower. Each Bank's obligation to make any Loan pursuant hereto
is several and not joint or joint and several. A default by any Bank will not
increase the Pro Rata Share attributable to any other Bank. Any Bank not in
default may, if it desires, assume in such proportion as the nondefaulting
Banks agree the obligations of any Bank in default, but is not obligated to do
so. The Administrative Agent agrees that it will use its best efforts either
to induce the other Banks to assume the obligations of a Bank in default or to
obtain another Bank, reasonably satisfactory to Borrower, to replace such a
Bank in default.
10.16 Indemnity by Borrower. Borrower agrees to indemnify,
save and hold harmless the Administrative Agent and each Bank and their
respective Affiliates, directors, officers, agents, attorneys and employees
(collectively the "Indemnitees") from and against: (a) any and all claims,
demands, actions or causes of action (except a claim, demand, action, or cause
of action for Bank Taxes) if the claim, demand, action or cause of action
arises out of or relates to any act or omission (or alleged act or omission) of
Borrower, its Affiliates or any of their officers, directors or stockholders
relating to the Commitments, the use or contemplated use of proceeds of any
Loan, or the relationship of Borrower and the Banks under this Agreement; (b)
any administrative or investigative proceeding by any Governmental Authority or
any litigation commenced by a private party against the Borrower or any
Affiliate which requests the discovery of documents or the production of
witnesses by the Administrative Agent or any Bank ; and (c) any and all
liabilities, losses, costs or expenses (including reasonable Attorneys Cost of
any Indemnitee and other professional services) that any Indemnitee suffers or
incurs as a result of
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the assertion of any foregoing claim, demand, action or cause of action;
provided that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee.
10.17 Nonliability of the Banks. Borrower acknowledges and
agrees that the relationship between Borrower and the Administrative Agent and
the Banks is, and shall at all times remain, solely that of borrowers and
lenders; neither the Administrative Agent nor the Banks shall under any
circumstance be construed to be partners or joint venturers of Borrower or its
Affiliates; neither the Administrative Agent nor the Banks shall under any
circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with Borrower or its Affiliates, or to owe any fiduciary
duty to Borrower or its Affiliates; neither the Administrative Agent nor the
Banks undertake or assume any responsibility or duty to Borrower or its
Affiliates to select, review, inspect, supervise, pass judgment upon or inform
Borrower or its Affiliates of any matter in connection with its Property or the
operations of Borrower or its Affiliates; Borrower and its Affiliates shall
rely entirely upon their own judgment with respect to such matters; and any
review, inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by the Administrative Agent or the Banks in connection
with such matters is solely for the protection of the Administrative Agent and
the Banks and neither Borrower nor any other Person is entitled to rely
thereon.
10.18 Failure to Charge Not Subsequent Waiver. Any decision
by the Administrative Agent or any Bank not to require payment of any interest
(including Default Interest), fee, cost or other amount payable under any Loan
Document, or to calculate any amount payable by a particular method, on any
occasion shall in no way limit or be deemed a waiver of the Administrative
Agent's or such Bank's right to require full payment of any interest (including
Default Interest), fee, cost or other amount payable under any Loan Document,
or to calculate an amount payable by another method that is not inconsistent
with this Agreement, on any other or subsequent occasion.
10.19 Headings. Section headings in this Agreement and the
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
10.20 Foreign Banks and Participants. Each Bank, and each
holder of a participation interest herein, that is a "foreign corporation,
partnership or trust" within the meaning of the Code shall deliver to the
Administrative Agent, (a)
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within 20 days after the Closing Date, or (b) after accepting an assignment or
receiving a participation interest herein, two duly signed completed copies of
either Form 1001 (relating to such Person and entitling it to a complete
exemption from withholding on all payments to be made to such Person by
Borrower pursuant to this Agreement) or Form 4224 (relating to all payments to
be made to such Person by Borrower pursuant to this Agreement) of the United
States Internal Revenue Service or such other evidence (including, if
reasonably necessary, Form W-8 or W-9) satisfactory to Borrower and the
Administrative Agent that no withholding under the federal income tax laws is
required with respect to such Person. Thereafter and from time to time, each
such Person shall (a) promptly submit to the Administrative Agent two such
additional duly completed and signed copies of one such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
Borrower and the Administrative Agent of any available exemption from, United
States withholding taxes in respect of all payments to be made to such Person
by Borrower pursuant to this Agreement and (b) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Bank, and
as may be reasonably necessary (including the re-designation of its Lending
Office, if any) to avoid any applicable Requirement of Law that Borrower make
any deduction or withholding for taxes from amounts payable to such Person. If
such Persons fails to timely deliver the above forms or other documentation,
then the Administrative Agent may withhold from any interest payment to such
Person an amount equivalent to the applicable withholding tax imposed by
Sections 1441 and 1442 of the Code, without reduction. If any Governmental
Authority asserts that the Administrative Agent did not properly withhold any
tax or other amount from payments made in respect of such Person, such Person
shall indemnify the Administrative Agent therefor, including all penalties and
interest and costs and expenses (including reasonable Attorneys Fees of the
Administrative Agent. The obligation of the Banks under this Section shall
survive the payment of all Obligations and the resignation or replacement of
the Administrative Agent.
10.21 Confidentiality. Each Bank agrees to hold any
confidential information that it may receive from Borrower pursuant to this
Agreement in confidence, except for disclosure: (a) to a Bank's Affiliates;
(b) to other Banks and their Affiliates; (c) to legal counsel and accountants
for Borrower or any Bank; (d) to other professional advisors to Borrower or any
Bank, provided that the recipient has accepted such information subject to a
confidentiality agreement substantially similar to this Section; (e) to
regulatory officials having jurisdiction over that Bank; (f) as required
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by Requirement of Law or legal process or in connection with any legal
proceeding to which that Bank and Borrower is adverse parties; and (g) to
another financial institution in connection with a disposition or proposed
disposition to that financial institution of all or part of that Bank's
interests hereunder or a participation interest in its Loans, provided that the
recipient has agreed to treat such information confidentially on a basis
similar to the foregoing. For purposes of the foregoing, "confidential
information" shall mean any information respecting Borrower or its Subsidiaries
reasonably considered by Borrower to be confidential, other than (i)
information previously filed with any Governmental Authority and available to
the public, (ii) information previously published in any public medium from a
source other than, directly or indirectly, that Bank, and (iii) information
previously disclosed by Borrower to any Person on a non-confidential basis.
Nothing in this Section shall be construed to create or give rise to any
fiduciary duty on the part of the Administrative Agent or the Banks to
Borrower.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
a Delaware corporation
By: /s/ DANIEL W. BALDWIN
-----------------------------
Daniel W. Baldwin
Senior Vice President
and Treasurer
S - 1
<PAGE> 80
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ LORI KANNEGIETER
-----------------------------
Lori Kannegieter
Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By: /s/ LORI KANNEGIETER
------------------------------
Lori Kannegieter
Managing Director
S - 2
<PAGE> 81
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /S/ DIANA IMHOF
-----------------------------
Title: VICE PRESIDENT
--------------------------
S - 3
<PAGE> 82
CITICORP USA, INC. (CUSA)
By: /S/ WALTER LARSEN
-----------------------------
Title: ATTORNEY-IN-FACT
--------------------------
S - 4
<PAGE> 83
THE BANK OF NEW YORK
By: /s/ REBECCA K. LEVINE
-----------------------------
Title: VICE PRESIDENT
--------------------------
S - 5
<PAGE> 84
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ S.E. GODDARD
-----------------------------
Title: AVP
--------------------------
S - 6
<PAGE> 85
THE CHASE MANHATTAN BANK
By: /s/ RICHARD C. SMITH
-----------------------------
Title: VICE PRESIDENT
--------------------------
S - 7
<PAGE> 86
THE FUJI BANK, LIMITED, LOS
ANGELES AGENCY
By: /S/ M. SUKUDA
-----------------------------
Title: JOINT GENERAL MGR
--------------------------
S - 8
<PAGE> 87
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ VINCENT L. TIMIRAOS
-----------------------------
Title: SENIOR V.P. AND SENIOR MGR
--------------------------
S - 9
<PAGE> 88
NATIONSBANK OF TEXAS, N.A.
By: /s/ MICHELE M. SHAFROTH
-----------------------------
Title: SENIOR V.P.
--------------------------
S - 10
<PAGE> 89
ROYAL BANK OF CANADA
By: /s/ MICHAEL A. COLE
-----------------------------
Title: MANAGER
--------------------------
S - 11
<PAGE> 90
WACHOVIA BANK, N.A.
By: /s/ TODD J. EAGLE
-----------------------------
Title: VICE PRESIDENT
--------------------------
S - 12
<PAGE> 91
EXHIBIT A
REQUEST FOR EXTENSION OF CREDIT
Date: ____________________, _____
To: Bank of America National Trust and
Savings Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364-Day
Facility) dated as of August 20, 1997 among Science Applications International
Corporation, a Delaware corporation (the "Borrower"), the banks from time to
time party thereto, and Bank of America National Trust and Savings Association,
as Administrative Agent (as extended, renewed, amended or restated from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined).
The undersigned hereby requests a (select one):
_____ Borrowing of Loans
_____ Conversion or Continuation of
Loans
1. On ____________________, 19__
2. In the amount of $________________________.
3. Comprised of ______________________.
[type of Loan requested]
4. If applicable: with an Interest Period
of _______ months/days.
The foregoing request complies with the requirements of
Section 2 of the Agreement. The undersigned hereby certifies that the
following statements are true on the date hereof, and will be true on the above
date, before and after giving effect and to the application of the proceeds
therefrom:
(a) except for the representations and warranties
set forth in Sections 5.6(b), 5.10(b) and 5.12 of the
Agreement (which shall be made solely as of the Closing Date
and the Effective Date), the representations and
A - 1
<PAGE> 92
warranties made by Borrower contained in Section 5 of the
Agreement shall be true and correct in all material respects
on and as of such borrowing date with the same effect as if
made on and as of such date; and
(b) no Default or Event of Default has occurred
and is continuing, or would result from such proposed
Extension of Credit.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
a Delaware corporation
By:
-----------------------------
Title:
--------------------------
A - 2
<PAGE> 93
EXHIBIT B
COMPLIANCE CERTIFICATE
Financial Statement Date: _________________, _____
To: Bank of America National Trust and
Savings Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364-Day
Facility) dated as of August 20, 1997 among Science Applications International
Corporation, a Delaware corporation (the "Borrower"), the banks from time to
time party thereto, and Bank of America National Trust and Savings Association,
as Administrative Agent (as extended, renewed, amended or restated from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined).
The undersigned Responsible Officer hereby certifies as of the
date hereof that he/she is the _____________________ of Borrower, and that, as
such, he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of Borrower, and that:
[Use following paragraphs when delivering this Compliance Certificate in
connection with the annual financial statements pursuant to Sections 6.1(a) and
6.1(c).]
1. Attached as Schedule 1 hereto is:
(a) a copy of the audited consolidated balance sheet of
Borrower and its Subsidiaries as at the above date and the related statements
of income and cash flows for the Fiscal Year ended on such date, setting forth
in each case in comparative form the figures for the previous year, accompanied
by the opinion of Price Waterhouse or another nationally-recognized independent
public accounting firm which report states that such consolidated financial
statements present fairly, in all material respects, the financial position of
Borrower and its Subsidiaries for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years. Such opinion is not qualified
or limited because of a restricted or limited examination by such accountant of
any material portion of Borrower's or any Subsidiary's records; and
B - 1
COMPLIANCE CERTIFICATE
<PAGE> 94
(b) a copy of the unaudited consolidating balance sheet
of Bellcore as at the above date and the related consolidating statements of
income and cash flows for the Fiscal Year ended on such date, setting forth in
each case in comparative form the figures for the previous year.
[Use following paragraphs when delivering this Compliance Certificate in
connection with the quarterly financial statements pursuant to Sections 6.1(b)
and 6.1(d).]
1. Attached as Schedule 1 hereto is:
(a) a copy of the unaudited consolidated balance sheet of
Borrower and its Subsidiaries as of the above date and the related consolidated
statements of income and cash flows for the period commencing on the first day
and ending on the last day of the quarter ended on such date, setting forth the
financial position and the results of operations of Borrower and its
Subsidiaries in conformity with GAAP applied on a basis consistent with prior
years, subject to changes resulting from audit and normal year-end adjustments;
and
(b) a copy of the unaudited consolidating balance sheet
of Bellcore as of the above date and the related consolidating statements of
income and cash flows for the period commencing on the first day and ending on
the last day of the quarter ended on such date, setting forth the financial
position and the results of operations of Bellcore, subject to changes
resulting from audit and normal year-end adjustments.
2. The undersigned has reviewed and is familiar with the
terms of the Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and conditions (financial or
otherwise) of Borrower during the accounting period covered by the attached
financial statements.
3. To the best of the undersigned's knowledge, Borrower,
during such period, has observed, performed or satisfied all of its covenants
and other agreements, and satisfied every condition in the Credit Agreement to
be observed, performed or satisfied by Borrower, and the undersigned has no
knowledge of any Default or Event of Default.
4. The financial covenant analyses and information set
forth on Schedule 2 attached hereto are true and accurate on and as of the date
of this Certificate.
B - 2
COMPLIANCE CERTIFICATE
<PAGE> 95
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ______________________, ______.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
a Delaware corporation
By:
-----------------------------
Title:
--------------------------
B - 3
COMPLIANCE CERTIFICATE
<PAGE> 96
Date: ___________________,____
For the Fiscal Quarter/Year
ended __________________, ____
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
(all calculations are for Borrower and its Subsidiaries
on a consolidated basis
I. Section 7.7 - Consolidated Net Worth.
<TABLE>
<S> <C>
A. Consolidated Net Worth: $
-----------
B. 50% of each Fiscal Year's Net Income
commencing with February 1, 1997 (but
without reduction for any losses
in any Fiscal Year): $
-----------
C. 75% of Net Cash Proceeds from any
material corporate stock offering
after the Closing Date (excluding
Net Cash Proceeds from employees'
and pension plans' customary
quarterly stock purchases): $
-----------
D. Total (Lines I.B + I.C + $448,000,000): $
===========
Minimum requirement: Line I.A to be greater
than Line I.D
II. Section 7.8 - Leverage Ratio.
----------------------------
A. Consolidated Funded Debt:
1. Indebtedness for borrowed money
or incurred in connection with
acquisitions: $
-----------
2. Capital Lease Obligations: $
-----------
3. Guaranty Obligations with respect
to Funded Debt of others: $
-----------
4. Consolidated Funded Debt
(Lines II.A.1 + II.A.2 + II.A.3): $
-----------
B. Leverage Ratio (Line II.A.4 / Line I.A): ====== to 1
</TABLE>
B - 4
COMPLIANCE CERTIFICATE
<PAGE> 97
Maximum permitted ratio:
<TABLE>
<CAPTION>
Maximum
Period Ratio
-------------------- ------------
<S> <C>
Closing Date through
January 31, 1998 0.70 to 1.00
February 1, 1998 and
Thereafter 0.65 to 1.00
</TABLE>
<TABLE>
III. Section 7.9 - Annualized Interest Coverage Ratio.
------------------------------------------------
<S> <C>
A. EBITDA of Borrower and its Subsidiaries for period of
last Fiscal Quarter and three immediately preceding
Fiscal Quarters ("Subject Period")
1. Net Income for Subject Period: $
-----------
2. Interest Expense for Subject Period: $
-----------
3. Federal and state taxes on or
measured by income for
Subject Period: $
-----------
4. Depreciation, amortization and
other non-cash expenses for
Subject Period: $
-----------
5. EBITDA (Lines III.A.1 +
III.A.2 + III.A.3 + III. A.4): $
===========
B. EBITDA of Bellcore for full Fiscal Quarters in Subject Period
during which Bellcore was owned by Borrower ("Includable Period"):
1. Bellcore Net Income for Includable
Period: $
-----------
2. Bellcore Interest Expense for
Includable Period: $
-----------
3. Federal and state taxes on or
measured by income for
Includable Period: $
-----------
4. Depreciation, amortization and
other non-cash expenses for
Includable Period: $
-----------
</TABLE>
B - 5
COMPLIANCE CERTIFICATE
<PAGE> 98
<TABLE>
<S> <C>
5. Bellcore EBITDA
(Lines III.B.1 + III.B.2 + III.B.3 + III. B.4): $
===========
C. Annualized Bellcore EBITDA
(Lines III.B.1 + III.B.2 + III.B.3 +
III.B.4 times the multiplier
determined below): $
-----------
Includable Period Multiplier
----------------- ----------
3 months 4
6 months 2
9 months 4/3
D. Annualized Bellcore Interest Expense
(Lines III.B.2 times the multiplier
determined above): $
-----------
E. Annualized EBITDA (Line III.A.5 +
Line III.C): $
-----------
F. Annualized Interest Expense
(Line III.A.2 + Line III.D): $
-----------
G. Annualized Interest Coverage Ratio
(Line III.E / Line III.F): to 1
======
Minimum permitted ratio: 3.50 to 1
IV. Section 7.10 - Bellcore Funded Debt Ratio.
-----------------------------------------
A. Bellcore Funded Debt:
1. Indebtedness of Bellcore
for borrowed money: $
-----------
2. Capital Lease Obligations
of Bellcore: $
-----------
3. Guaranty Obligations of Bellcore
with respect to Funded Debt
of others: $
-----------
4. Obligations of Bellcore under
Permitted Accounts
Receivable Financings: $
-----------
5. Bellcore Funded Debt
(Lines IV.A.1 + A.2 + A.3 + A.4): $
===========
</TABLE>
B - 6
COMPLIANCE CERTIFICATE
<PAGE> 99
<TABLE>
<S> <C> <C>
B. Bellcore Funded Debt Ratio
(Line IV.A.5 / Line III.B.5): to 1
======
Maximum permitted ratio: 1.75 to 1
</TABLE>
B - 7
COMPLIANCE CERTIFICATE
<PAGE> 100
EXHIBIT C
FORM OF NOTE
$___________________ August 20, 1997
FOR VALUE RECEIVED, SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION, a Delaware corporation (the "Borrower"), hereby promises to pay to
the order of ________________________ (the "Bank") at its Lending Office the
principal sum of $____________ (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Loans made by the Bank to Borrower
under the Credit Agreement referred to below), in lawful money of the United
States of America and in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount of each such Loan, at such office, in like money and
funds, for the period commencing on the date of such Loan until such Loan shall
be paid in full, at the rates per annum and on the dates provided in the Credit
Agreement.
The date, amount, type, interest rate and duration of Interest
Period (if applicable) of each Loan made by the Bank to Borrower, and each
payment made on account of the principal of such Loan, shall be recorded by the
Bank on its books and, prior to any transfer of this Note, endorsed by the Bank
on the schedule attached to this Note or any continuation of such schedule,
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of Borrower to make a payment when
due of any amount owing under the Credit Agreement or under this Note in
respect of the Loans made by the Bank.
This promissory note is one of the Notes referred to in the
Credit Agreement (364-Day Facility) dated as of August 20, 1997 among Borrower,
the banks from time to time party thereto, and Bank of America National Trust
and Savings Association, as Administrative Agent (as extended, renewed, amended
or restated from time to time, the "Agreement;") the terms defined therein
being used herein as therein defined).
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified in the Credit Agreement. If
any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after
C - 1
FORM OF NOTE
<PAGE> 101
judgment) computed at the per annum rate set forth in the Credit Agreement.
Borrower, for itself, its successors and assigns, hereby
waives diligence, presentment, protest and demand and notice of protest,
demand, dishonor and non-payment of this Note.
Except as permitted by the Credit Agreement, this Note may not
be assigned by the Bank or Borrower to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF CALIFORNIA.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
a Delaware corporation
By:
-----------------------------
Daniel W. Baldwin
Senior Vice President
and Treasurer
C - 2
FORM OF NOTE
<PAGE> 102
Schedule to Note
(3)
(2) End of (4) (5)
(1) Amount Interest Principal Notation
Date of Loan Period Amount Made By
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
________ ____________ ____________ ______________ ________
C - 3
FORM OF NOTE
<PAGE> 103
EXHIBIT D
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
________________, 19__
TO: Bank of America National Trust and
Savings Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364-Day Facility)
dated as of August 20, 1997 among Science Applications International
Corporation, a Delaware corporation (the "Borrower"), the banks from time to
time party thereto, and Bank of America National Trust and Savings Association,
as Administrative Agent (as extended, renewed, amended or restated from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined).
1. We hereby give you notice of, and request your consent to, the
assignment by (the "Assignor") to (the "Assignee") of ______% of the right,
title and interest of the Assignor in and to the Loan Documents, including
without limitation the right, title and interest of the Assignor in and to the
Commitment of the Assignor, and all outstanding Loans made by the Assignor.
Before giving effect to such assignment:
(a) the aggregate amount of the Assignor's Commitment is
$___________; and
(b) the aggregate principal amount of its outstanding
Loans is $____________.
2. The Assignee hereby represents and warrants that it has
complied with the requirements of Section 10.5 of the Credit Agreement in
connection with this assignment.
3. The Assignee agrees that, upon receiving your consent to such
assignment and from and after _________________, the Assignee will be bound by
the terms of the Loan Documents, with respect to the interest in the Loan
Documents assigned to it as specified above, as fully and to the same extent as
if the Assignee were the Bank originally holding such interest in the Loan
Documents.
D - 1
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
<PAGE> 104
4. The following administrative details apply to the Assignee:
(a) Designated Offshore Lending Office:
Assignee name: ___________________________
Address: _________________________________
_________________________________
Attention: ________________________________
Telephone: (__) __________________________
Telecopier: (___) _________________________
Telex (Answerback): ______________________
(b) Domestic Lending Office:
Assignee name: ___________________________
Address: _________________________________
_________________________________
Attention: ________________________________
Telephone: (__) __________________________
Telecopier: (___) _________________________
Telex (Answerback): ______________________
(c) Notice Address:
Assignee name: ___________________________
Address: _________________________________
_________________________________
Attention: ________________________________
Telephone: (__) __________________________
Telecopier: (___) _________________________
Telex (Answerback): ______________________
(d) Payment Instructions:
Account No.: _____________________________
At: _____________________________
_____________________________
Ref.: _____________________________
Attention: _____________________________
D - 2
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
<PAGE> 105
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[Name of Assignor]
By:___________________________
Title:
[Name of Assignee]
By:___________________________
Title:
We hereby consent to the
foregoing assignment.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
a Delaware corporation
By: ___________________________
Name: _________________________
Title: ________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: ___________________________
Name: _________________________
Title: ________________________
D - 3
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
<PAGE> 106
EXHIBIT E
FORM OF OPINION OF CORPORATE COUNSEL
E - 1
FORM OF OPINION OF CORPORATE COUNSEL
<PAGE> 107
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
(364-Day Facility)
<TABLE>
<CAPTION>
Pro Rata
Bank Commitment Share
---- ---------- ---------
<S> <C> <C>
Bank of America National Trust
and Savings Association $ 28,000,000 14.000000%
Morgan Guaranty Trust Company
of New York 28,000,000 14.000000%
Citicorp USA, Inc. (CUSA) 28,000,000 14.000000%
The Bank of New York 14,500,000 7.250000%
Bank of Tokyo-Mitsubishi
Trust Company 14,500,000 7.250000%
The Chase Manhattan Bank 14,500,000 7.250000%
The Fuji Bank, Limited,
Los Angeles Agency 14,500,000 7.250000%
The Industrial Bank of Japan,
Limited, Los Angeles Agency 14,500,000 7.250000%
NationsBank of Texas, N.A. 14,500,000 7.250000%
Royal Bank of Canada 14,500,000 7.250000%
Wachovia Bank, N.A. 14,500,000 7.250000%
============ ===========
TOTAL $200,000,000 100.000000%
</TABLE>
- 1 -
<PAGE> 108
SCHEDULE 4.2(a)(i)
CERTAIN AMENDMENTS TO
BELLCORE PURCHASE AGREEMENTS
Bellcore will initiate and, in accordance with Section 6.2 of the
Stock Purchase Agreement, request that SAIC consent to a synthetic lease
financing transaction involving real property having a value of approximately
$80,000,000 (the "Synthetic Lease Transaction") which will close either
concurrently with or immediately before SAIC's acquisition of Bellcore is
consummated. As a condition to granting the necessary consent to the Synthetic
Lease Transaction, SAIC will require that the current Bellcore shareholders and
Bellcore enter into an Amendment to Stock Purchase Agreement which will provide
that no gain or loss arising as a result of such Synthetic Lease Transaction
(i) will be taken into account for purpose of determining "Interim Period Net
Income" (as that term is defined in Section 12.1(b) of the Stock Purchase
Agreement) or (ii) will affect the calculation of the final purchase price
pursuant to Section 2.3 of the Stock Purchase Agreement.
- 1 -
<PAGE> 109
SCHEDULE 5.7
ERISA PLANS
QUALIFIED PLANS:
Borrower:
Science Applications International Corporation Cash or Deferred
Arrangement (401(k) plan)
Science Applications International Corporation Profit Sharing
Retirement Plan
Science Applications International Corporation Employee Stock
Ownership Plan (ESOP)
SAIC Frederick Employee Savings Plan (401(k) plan)
SAIC Frederick Retirement Plan (defined benefit pension plan)
Subsidiary Plans (all 401(k) plans):
TransCore Retirement Savings Plan
General Sciences Corporation Retirement Plan
American Systems Engineering Corporation Employees 401(k) Profit
Sharing Plan
Pathology Associates Retirement Plan
MULTIEMPLOYER PLANS:
None
- 1 -
<PAGE> 110
SCHEDULE 5.12
SUBSIDIARIES
American Systems Engineering Corporation
AW Software und Technologie GmbH
Bull, Inc.
Campus Point Realty Corporation
Energy and Technology Management Corporation
General Sciences Corporation
Hicks & Associates, Inc.
INTESA
JHK & Associates, Inc.
JMD Development Corporation dba JDA
Network Solutions, Inc.
Pathology Associates International Corporation
PT Science Applications International Corporation Indonesia
R.E. Wright Environmental, Inc.
Environmental Restoration Systems, Inc.
Wright Laboratory Services, Inc.
Sachse Engineering Associates, Inc.
SAIC (Bermuda) Ltd.
SAIC Columbia, Limitada
SAIC Commercial Enterprises, Inc.
SAIC de Mexico, S.A. de C.V.
SAIC Engineering, Inc.
SAIC Engineering of Ohio, Inc.
SAIC Global Technology Corporation
SAIC in Novosibirsk
SAIC-MIR
SAIC UK Limited
SAIC Limited
Andrew Palmer & Associates Limited
SAIC Ukraine Corporation
Science Applications International (Barbados) Corporation
Science Applications International Corporation (SAIC Canada)
Science Applications International Corporation de Venezuela, S.A.
Science Applications International Corporation (Singapore) Pte. Ltd.
Science Applications International Deutschland GmbH
Science Applications International, Europe S.A.
Science Applications International Pty. Ltd.
Science Applications International Technology
Syntonic Technology, Inc. dba TransCore
Systems Control Technology, Inc.
Tenth Mountain Systems, Inc.
- 1 -
<PAGE> 111
SCHEDULE 7.1
EXISTING LIENS
(1) Bradford Building Capital Lease
Applied Research, Inc., was merged into Borrower as of January 10, 1994. As
part of this transaction, Borrower assumed a capital lease on real property
located at 5025 Bradford Boulevard, Huntsville, Alabama 35805, expiring on July
1, 1999. At the time of the merger, the long-term balance of the capital lease
obligation was valued at $2,127,817. The total long-term liability outstanding
as of July 31, 1997 was $1,104,076.
- 1 -
<PAGE> 112
SCHEDULE 7.2
CERTAIN PERMITTED DISPOSITIONS
Borrower currently is contemplating the following dispositions:
1. Borrower intends to consolidate certain of its transportation
businesses under a newly organized subsidiary to be called "Transcore Holdings
Corporation" (or such other name as Borrower deems appropriate) and to sell
approximately 51% of the authorized stock in such subsidiary to an unrelated
investor or investors.
2. Borrower intends to dispose of its Advanced Nucleonics
Division currently operated in Santa Clara, California.
3. Borrower intends to offer for sale up to 20% of the authorized
Class A common stock of its Network Solutions, Inc., subsidiary in an initial
public offering.
4. Borrower intends to dispose of its Wright Laboratory Services
division currently operated in Harrisburg, Pennsylvania.
5. Borrower intends to dispose of its stock in Symmetrix, a
company currently located in Boston, Massachusetts.
The identification of the foregoing possible dispositions in this
Schedule 7.2 should not be construed to reflect Borrower's judgment that such
dispositions otherwise would not constitute "Permitted Dispositions" as defined
in the Agreement.
- 1 -
<PAGE> 113
SCHEDULE 10.2
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
BORROWER
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
10260 Campus Drive
San Diego, California 92121
Attention: Daniel W. Baldwin
Senior Vice President
and Treasurer
Telephone: (619) 546-6338
Facsimile: (619) 546-6191
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT
Bank of America National Trust
and Savings Association
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Gina Meador
Vice President
Agency Management-Los Angeles #20529
Telephone: (213) 228-5245
Facsimile: (213) 228-2299
ADMINISTRATIVE AGENT'S PAYMENT OFFICE:
1850 Gateway Boulevard, Fifth Floor
Concord, California 94520
Attention: Clayton E. Choo
Telephone: (510) 675-8453
Facsimile: (510) 675-8500
Account No. 12331-15523
Ref: Science Applications International Corporation
Attention: Agency Management Services #5596
ABA No. 1210-0035-8
- 1 -
<PAGE> 114
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS A BANK
Domestic and Offshore Lending Office:
333 S. Beaudry Avenue, 19th Floor
Los Angeles, CA 90017
Attention: Jorege Beliz, Sr. Account Administrator
Telephone: (213) 345-6344
Facsimile: (213) 345-6550
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
Bank of America National Trust and
Savings Association
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Diane Allen
Vice President
Credit Products #5618
Telephone: (213) 228-2435
Facsimile: (213) 228-2756
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
Domestic Lending Office:
60 Wall Street Branch
c/o J.P. Morgan Services Inc.
500 Stanton-Christiana Road
Loan Operations - 3rd Floor
Newark, DE 19713
Attention:
Telephone: (302) 634-1853
Facsimile: (302) 634-1092
Eurodollar Lending Office:
Nassau, Bahamas Office
c/o J.P. Morgan Services Inc.
Euro-Loan Servicing Unit
500 Stanton-Christiana Road
Newark, DE 19713
Attention:
Telephone:
Facsimile:
- 2 -
<PAGE> 115
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, NY 10260
Attention: Diana H. Imhof
Vice President
Telephone: (212) 648-6948
Facsimile: (212) 648-5018
with a copy to:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, NY 10260
Attention: Robert M. Osieski
Vice President
Telephone: (212) 648-7173
Facsimile: (212) 648-5018
CITICORP USA, INC. (CUSA)
Domestic and Offshore Lending Office:
399 Park Avenue
New York, NY 10043
Attention: Melanie Vora
Telephone: (718) 248-5698
Facsimile: (718) 248-4844 or 4845
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
Citicorp USA, Inc. (CUSA)
725 S. Figueroa Street
Los Angeles, CA 90017
Attention: Hillary Savoie
Vice President
Telephone: (213) 239-1506
Facsimile: (213) 623-3592
THE BANK OF NEW YORK
Domestic and Offshore Lending Office:
One Wall Street, 22nd Floor
New York, NY 10286
Attention: Dawn Hartling or Sandra Morgan
Telephone: (212) 635-6742 or 6743
Facsimile: (212) 635-6399
- 3 -
<PAGE> 116
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
The Bank of New York
10990 Wilshire Blvd., Suite 1125
Los Angeles, CA 90024
Attention: Rebecca K. Levine
Vice President
Telephone: (310) 996-8659
Facsimile: (310) 996-8667
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
Domestic and Offshore Lending Office:
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attention: Rolando Liy
Telephone: (201) 413-8570
Facsimile: (212) 766-3127
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attention: Steven Goddard
Telephone: (212) 782-4359
Facsimile: (212) 782-6445
THE CHASE MANHATTAN BANK
Domestic and Offshore Lending Office:
270 Park Avenue
New York, NY 10017
Attention: Lenora Kiernan
Telephone: (212) 552-7309
Facsimile: (212) 552-5650
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Attention: Richard C. Smith
Vice President
Telephone: (212) 270-5435
Facsimile: (212) 270-5100
- 4 -
<PAGE> 117
with a copy to:
The Chase Manhattan Bank
270 Park Avenue, 38th Floor
New York, NY 10017
Attention: Stephen R. Simon
Telephone:
Facsimile:
THE FUJI BANK, LIMITED, LOS ANGELES AGENCY
Domestic and Offshore Lending Office:
333 South Hope Street, 39th Floor
Los Angeles, CA 90071
Attention: Mary Lee
Loan Administrator
Telephone: (213) 253-4193
Facsimile: (213) 253-4178
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
The Fuji Bank, Limited, Los Angeles Agency
333 South Hope Street, 39th Floor
Los Angeles, CA 90071
Attention: Ching Lim
Vice President
Telephone: (213) 253-4179
Facsimile: (213) 253-4178
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY
Domestic and Offshore Lending Office:
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Attention: Sue Cheung
Telephone: (213) 893-6498
Facsimile: (213) 688-7486
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
The Industrial Bank of Japan, Limited,
Los Angeles Agency
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Attention: Steven M. Bradley
Telephone: (213) 893-6443
Facsimile: (213) 688-9840
- 5 -
<PAGE> 118
NATIONSBANK OF TEXAS, N.A.
Domestic and Offshore Lending Office:
901 Main Street
Dallas, TX 75202
Attention: Karen Puente
Telephone: (214) 508-3089
Facsimile: (214) 508-0944
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
NationsBank of Texas, N.A.
444 S. Flower Street, Suite 4100
Los Angeles, CA 90071
Attention: Michele Shafroth
Senior Vice President
Telephone: (213) 236-4907
Facsimile: (213) 624-5815
ROYAL BANK OF CANADA
Domestic and Offshore Lending Office:
One Financial Square, 23rd Floor
New York, NY 10005
Attention: Linda Smith
Telephone: (212) 428-6323
Facsimile: (212) 428-2372
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
Royal Bank of Canada
600 Wilshire Blvd., Suite 800
Los Angeles, CA 90017
Attention: Michael A. Cole
Manager
Telephone: (213) 955-5328
Facsimile: (213) 955-5350
WACHOVIA BANK, N.A.
Domestic and Offshore Lending Office:
191 Peachtree Street N.E.
Atlanta, GA 30303
Attention: Samantha Field
Telephone: (404) 332-5271
Facsimile: (404) 332-6898
- 6 -
<PAGE> 119
Notices (other than Borrowing notices and Notices of Conversion/Continuation) :
Wachovia Bank, N.A.
191 Peachtree Street N.E.
Atlanta, GA 30303
Attention: Todd Eagle
Telephone: (404) 332-4392
Facsimile: (404) 332-6898
- 7 -
<PAGE> 1
EXHIBIT 11
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
Exhibit to Condensed Consolidated Financial Statements
Computation of Per Share Earnings
(Unaudited, in thousands, except per-share amounts)
<TABLE>
<CAPTION>
Three months ended Six months ended
------------------------------ -----------------------------
July 31, 1997 July 31, 1996 July 31, 1997 July 31, 1996
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
PRIMARY:
Net Income $18,323 $15,081 $35,199 $28,178
Reduction of interest expense, net of
income tax expense on assumed retirement
of short-term and long-term debt 184 311 367 623
Interest earned, net of income tax expense
on assumed investment of U.S. government
securities or commercial paper -- -- -- --
------- ------- ------- -------
Adjusted net income $18,507 $15,392 $35,566 $28,801
======= ======= ======= =======
Weighted average shares outstanding 51,150 49,058 50,783 48,953
Dilutive stock options, based on the modified
treasury stock method, using average fair value 3,331 3,288 3,350 3,339
------- ------- ------- -------
Total average shares outstanding 54,481 52,346 54,133 52,292
======= ======= ======= =======
Per Share Amount $ .34 $ .29 $ .66 $ .55
======= ======= ======= =======
FULLY DILUTED:
Net Income $18,323 $15,081 $35,199 $28,178
Reduction of interest expense, net of
income tax expense on assumed retirement
of short-term and long-term debt 54 245 107 490
Interest earned, net of income tax expense
on assumed investment of U.S. government
securities or commercial paper -- -- -- --
------- ------- ------- -------
Adjusted net income $18,377 $15,326 $35,306 $28,668
======= ======= ======= =======
Weighted average shares outstanding 51,150 49,058 50,783 48,953
Dilutive stock options, based on the modified
treasury stock method, using quarter-end
or exercise date established price if higher than
average fair value 3,331 3,288 3,350 3,339
------- ------- ------- -------
Total average shares outstanding 54,481 52,346 54,133 52,292
======= ======= ======= =======
Per Share Amount $ .34 $ .29 $ .65 $ .55
======= ======= ======= =======
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEET AND RELATED CONDENSED STATEMENTS OF INCOME
AND CASH FLOWS FOR THE SIX MONTHS ENDED JULY 31, 1997 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-START> FEB-01-1997
<PERIOD-END> JUL-31-1997
<CASH> 212,916
<SECURITIES> 0
<RECEIVABLES> 542,434
<ALLOWANCES> 15,815
<INVENTORY> 16,378
<CURRENT-ASSETS> 837,288
<PP&E> 347,889
<DEPRECIATION> 145,670
<TOTAL-ASSETS> 1,147,940
<CURRENT-LIABILITIES> 510,508
<BONDS> 51,526
0
0
<COMMON> 512
<OTHER-SE> 582,699
<TOTAL-LIABILITY-AND-EQUITY> 1,147,940
<SALES> 0
<TOTAL-REVENUES> 1,325,488
<CGS> 0
<TOTAL-COSTS> 1,161,585
<OTHER-EXPENSES> 97,052
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,853
<INCOME-PRETAX> 63,998
<INCOME-TAX> 28,799
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 35,199
<EPS-PRIMARY> .66
<EPS-DILUTED> .65
</TABLE>
