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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 MARCH 29, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO .
COMMISSION FILE NUMBER 0-19528
QUALCOMM INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-3685934
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO)
6455 LUSK BLVD., SAN DIEGO, CALIFORNIA 92121-2779
(ADDRESS OF PRINCIPAL EXECUTIVE (ZIP CODE)
OFFICES)
(619) 587-1121
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
NOT APPLICABLE
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR,
IF CHANGED SINCE LAST REPORTED)
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 twelve 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 ninety days. Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date:
Common Stock, $0.0001 per share par value, 69,214,356 shares
as of April 20, 1998.
<PAGE> 2
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
QUALCOMM Incorporated
/s/ ANTHONY S. THORNLEY
-----------------------------------------
Anthony S. Thornley
Executive Vice President, Finance
& Chief Financial Officer
Dated: April 24, 1998
2
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QUALCOMM INCORPORATED
INDEX
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets.................. 4
Condensed Consolidated Statements of Income............ 5
Condensed Consolidated Statements of Cash Flows........ 6
Notes to Condensed Consolidated Financial Statements... 7-11
Item 2. Management's Discussion and Analysis of Results of
Operations ........................................... 12-21
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 22
</TABLE>
3
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PART I. FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
QUALCOMM INCORPORATED
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
ASSETS
<TABLE>
<CAPTION>
MARCH 29, SEPTEMBER 28,
1998 1997
---------- -------------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents................................... $ 186,974 $ 248,837
Investments................................................. 249,087 448,235
Accounts receivable, net.................................... 599,349 445,382
Finance receivables......................................... 47,720 111,501
Inventories................................................. 359,695 225,156
Other current assets........................................ 99,382 70,484
---------- ----------
Total current assets................................ 1,542,207 1,549,595
PROPERTY, PLANT AND EQUIPMENT, NET............................ 518,686 425,090
INVESTMENTS................................................... 111,680 111,786
FINANCE RECEIVABLES, NET...................................... 103,771 --
OTHER ASSETS.................................................. 179,387 188,209
---------- ----------
TOTAL ASSETS.................................................. $2,455,731 $2,274,680
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable and accrued liabilities.................... $ 529,211 $ 409,156
Unearned revenue............................................ 52,712 45,084
Bank lines of credit........................................ 56,000 110,000
Current portion of long-term debt........................... 2,917 3,238
---------- ----------
Total current liabilities........................... 640,840 567,478
LONG-TERM DEBT................................................ 5,530 7,729
OTHER LIABILITIES............................................. 20,949 15,295
---------- ----------
Total liabilities................................... 667,319 590,502
---------- ----------
COMMITMENTS AND CONTINGENCIES (NOTE 8)........................
MINORITY INTEREST IN CONSOLIDATED SUBSIDIARIES................ 8,504 --
---------- ----------
COMPANY-OBLIGATED MANDATORILY REDEEMABLE TRUST CONVERTIBLE
PREFERRED SECURITIES OF A SUBSIDIARY TRUST HOLDING SOLELY DEBT
SECURITIES OF THE COMPANY.................................... 660,000 660,000
---------- ----------
STOCKHOLDERS' EQUITY:
Preferred stock, $0.0001 par value.......................... -- --
Common stock, $0.0001 par value............................. 7 7
Paid-in capital............................................. 939,330 906,373
Retained earnings........................................... 180,571 117,798
---------- ----------
Total stockholders' equity.......................... 1,119,908 1,024,178
---------- ----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY.................... $2,455,731 $2,274,680
========== ==========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
4
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QUALCOMM INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
------------------------ ------------------------
MARCH 29, MARCH 30, MARCH 29, MARCH 30,
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
REVENUES:
Communications systems........... $ 625,572 $ 507,780 $1,302,457 $ 832,360
Contract services................ 64,927 49,365 128,958 88,044
License, royalty and development
fees........................... 70,054 28,601 114,992 54,282
--------- --------- ---------- ---------
Total revenues............. 760,553 585,746 1,546,407 974,686
--------- --------- ---------- ---------
OPERATING EXPENSES:
Communications systems........... 485,279 418,724 992,618 678,209
Contract services................ 49,053 36,470 95,329 64,195
Research and development......... 76,946 53,106 151,747 99,284
Selling and marketing............ 59,728 31,100 115,826 58,041
General and administrative....... 38,246 22,012 74,715 37,604
Other (Note 5)................... -- 8,792 11,976 8,792
--------- --------- ---------- ---------
Total operating expenses... 709,252 570,204 1,442,211 946,125
--------- --------- ---------- ---------
OPERATING INCOME................... 51,301 15,542 104,196 28,561
INTEREST INCOME.................... 9,573 6,548 21,763 11,001
INTEREST EXPENSE................... (1,685) (3,212) (4,374) (5,196)
UNREALIZED GAIN ON TRADING
SECURITIES....................... -- 9,454 -- 9,454
NET GAIN ON SALE OF INVESTMENTS.... -- -- 2,950 --
DISTRIBUTIONS ON TRUST CONVERTIBLE
PREFERRED SECURITIES OF
SUBSIDIARY TRUST................. (9,927) (3,895) (19,725) (3,895)
MINORITY INTEREST IN INCOME OF
CONSOLIDATED SUBSIDIARIES........ (21,642) (2,110) (17,861) (5,430)
EQUITY IN EARNINGS OF INVESTEES.... (1,398) -- (4,170) --
---------- ---------- ---------- ----------
INCOME BEFORE INCOME TAXES......... 26,222 22,327 82,779 34,495
INCOME TAX EXPENSE................. (211) (5,582) (20,006) (8,624)
--------- --------- ---------- ---------
NET INCOME......................... $ 26,011 $ 16,745 $ 62,773 $ 25,871
========= ========= ========== =========
NET EARNINGS PER COMMON SHARE:
Basic............................ $ 0.38 $ 0.25 $ 0.91 $ 0.39
========= ========= ========== =========
Diluted.......................... $ 0.36 $ 0.23 $ 0.85 $ 0.36
========= ========= ========== =========
SHARES USED IN PER SHARE
CALCULATION:
Basic............................ 68,934 67,225 68,705 66,903
========= ========= ========== =========
Diluted.......................... 73,143 72,821 73,643 71,740
========= ========= ========== =========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
5
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QUALCOMM INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
-------------------------
MARCH 29, MARCH 30,
1998 1997
---------- ----------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income................................................... $ 62,773 $ 25,871
Depreciation and amortization................................ 65,119 41,675
Acquired in-process research and development................. 6,976 --
Non-cash charge for impaired assets ......................... 5,000 8,792
Unrealized gain on trading securities........................ -- (9,454)
Minority interest in income of consolidated subsidiaries..... 17,861 5,430
Equity in earnings of investees.............................. 4,170 --
Increase (decrease) in cash resulting from changes in:
Accounts receivable, net.................................. (153,967) (140,234)
Finance receivables, net.................................. (39,990) (87,063)
Inventories............................................... (134,539) (35,763)
Other assets.............................................. (29,243) (6,152)
Accounts payable and accrued liabilities.................. 121,733 85,006
Unearned revenue.......................................... 7,628 4,244
Other liabilities......................................... 5,654 3,314
Purchase of trading securities............................... -- (9,729)
---------- ----------
Net cash used by operating activities.......................... (60,825) (114,063)
---------- ----------
INVESTING ACTIVITIES:
Capital expenditures......................................... (154,221) (49,930)
Purchases of investments..................................... (254,954) (517,461)
Maturities of investments.................................... 454,208 309,044
Purchases of intangible assets............................... (11,548) --
Investments in other entities................................ (4,052) (49,135)
---------- ----------
Net cash provided (used) by investing activities............... 29,433 (307,482)
---------- ----------
FINANCING ACTIVITIES:
Net (repayments) borrowings under bank lines of credit....... (54,000) 59,300
Principal payments on long-term debt......................... (2,520) (777)
Minority interest investment in consolidated subsidiaries.... 602 98
Proceeds from issuance of trust convertible preferred
securities of subsidiary trust............................. -- 660,000
Deferred issuance costs...................................... (832) (18,624)
Net proceeds from issuance of common stock................... 26,279 17,705
---------- ----------
Net cash (used) provided by financing activities............... (30,471) 717,702
----------- ----------
NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS........... (61,863) 296,157
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD............... 248,837 110,143
---------- ----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD..................... $ 186,974 $ 406,300
========== ==========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
6
<PAGE> 7
QUALCOMM INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 -- BASIS OF PRESENTATION
The accompanying interim condensed consolidated financial statements have
been prepared by QUALCOMM Incorporated (the "Company" or "QUALCOMM"), without
audit, in accordance with the instructions to Form 10-Q and, therefore, do not
necessarily include all information and footnotes necessary for a fair
presentation of its financial position, results of operations and cash flows in
accordance with generally accepted accounting principles. The condensed
consolidated balance sheet at September 28, 1997 was derived from the audited
consolidated balance sheet at that date which is not presented herein. The
Company operates and reports using a period ending on the last Sunday of each
month.
In the opinion of management, the unaudited financial information for the
interim periods presented reflects all adjustments (which include only normal,
recurring adjustments) necessary for a fair presentation. These condensed
consolidated financial statements and notes thereto should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the fiscal year ended
September 28, 1997. Operating results for interim periods are not necessarily
indicative of operating results for an entire fiscal year. Certain prior period
amounts have been reclassified to conform with the current period presentation.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Revenue from communications systems and products is generally recognized at
the time the units are shipped and over the period during which message and
warranty services are provided, except for shipments under arrangements
involving significant acceptance requirements. Under such arrangements, revenue
is recognized when the Company has substantially met its performance
obligations. Revenue from long-term contracts and revenue earned under license
and development agreements with continuing performance obligations is recognized
using the percentage-of-completion method, based either on costs incurred to
date compared with total estimated costs at completion or using a units of
delivery methodology. Estimated contract losses are recognized when determined.
Non-refundable license fees are recognized when there is no material continuing
performance obligation under the agreement and collection is probable.
Royalty revenue is recorded as earned in accordance with the specific terms
of each license agreement when reasonable estimates of such amounts can be made.
Since the commencement of royalty-bearing product sales by the Company's
licensees, the Company has accumulated and analyzed information relating to
royalties from its licensees. During this time, the availability of information
about royalty-bearing product sales by licensees has increased. The Company has
also gained experience in understanding the relationship between the timing of
its sales of CDMA subscriber unit components to its licensees and the timing of
its licensees' sales of related subscriber units. The Company believes it can
now reasonably estimate certain royalty revenues that previously could not be
reliably estimated prior to being reported by its licensees. The Company's
royalty revenue for the second quarter of fiscal 1998 includes an additional $18
million as a result of this improvement in its ability to estimate such
royalties.
The Company adopted Statement of Financial Accounting Standards No. 128 ("FAS
128"), "Earnings per Share" in the first quarter of fiscal 1998. FAS 128
superseded APB Opinion No. 15 ("APB 15"), "Earnings per Share" and replaced the
primary and fully diluted earnings per share ("EPS") computations pursuant to
APB 15 with basic and diluted EPS. Earnings per share data presented for the
three and six month periods ended March 30, 1997 have been restated for
comparative purposes.
7
<PAGE> 8
Under FAS 128, basic earnings per common share are calculated by dividing net
income by the weighted average number of common shares outstanding during the
reporting period. Diluted earnings per common share reflect the potential
dilutive effect, determined by the treasury stock method, of additional common
shares that are issuable upon exercise of outstanding stock options and
warrants, as follows (in thousands):
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
--------------------- ---------------------
MARCH 29, MARCH 30, MARCH 29, MARCH 30,
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Options........ 3,514 4,895 4,234 4,149
Warrants....... 695 701 704 688
----- ----- ----- -----
4,209 5,596 4,938 4,837
===== ===== ===== =====
</TABLE>
Options outstanding during the three months ended March 29, 1998 and March
30, 1997, to purchase approximately 4,181,000 and 240,000 shares of common
stock, respectively, and options outstanding during the six months ended March
29, 1998 and March 30, 1997, to purchase approximately 2,662,000 and 2,093,000
shares of common stock, respectively, were anti-dilutive and have been excluded
from the computations of diluted EPS. The conversion of the Trust Convertible
Preferred Securities is not assumed for all periods presented since its effect
would be anti-dilutive.
NOTE 2 -- COMPOSITION OF CERTAIN BALANCE SHEET CAPTIONS
Accounts Receivable:
<TABLE>
<CAPTION>
MARCH 29, SEPTEMBER 28,
1998 1997
-------- --------
<S> <C> <C>
Accounts Receivable, net (in thousands):
Trade, net of allowance for doubtful
accounts of $20,886 and $18,892
respectively............................. $526,295 $343,619
Long-term contracts:
Billed................................... 30,144 53,159
Unbilled................................. 28,245 32,230
Other...................................... 14,665 16,374
-------- --------
$599,349 $445,382
======== ========
</TABLE>
Unbilled receivables represent costs and profits recorded in excess of
amounts billable pursuant to contract provisions and are expected to be realized
within one year.
Finance Receivables:
Finance receivables result from sales under arrangements in which the Company
has agreed to provide customers with the option to issue long-term interest
bearing notes to the Company for the purchase of equipment and/or services.
In March 1998, the Company agreed to defer up to $100 million of contract
payments, with interest accruing at 5 3/4% capitalized quarterly, as customer
financing under its development contract with Globalstar L.P. ("Globalstar").
Financed amounts outstanding as of January 1, 2000 will be repaid in eight equal
quarterly installments commencing as of that date, with final payment due
October 1, 2001 accompanied by all then unpaid accrued interest. At March 29,
1998, contract payments of approximately $58 million were outstanding from
Globalstar as interest bearing financed amounts. Subject to terms and
conditions, Globalstar is entitled to defer $4.2 million from each future
monthly development contract payment until the $100 million limit is reached.
8
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Inventories:
<TABLE>
<CAPTION>
MARCH 29, SEPTEMBER 28,
1998 1997
--------- -------------
<S> <C> <C>
Inventories (in thousands):
Raw materials.............................. $191,223 $118,516
Work-in-progress........................... 67,485 55,088
Finished goods............................. 100,987 51,552
-------- --------
$359,695 $225,156
======== ========
</TABLE>
NOTE 3 -- DEBT AND CREDIT FACILITIES
On March 11, 1998, the Company and a group of banks entered into a $400
million unsecured revolving credit agreement (the "Credit Agreement") under
which the banks are committed to make loans to the Company and to extend letters
of credit on behalf of the Company. The Credit Agreement expires in March 2001
and may be extended on an annual basis thereafter, subject to approval of a
requisite percentage of the lenders. At the Company's option, interest is at the
applicable LIBOR rate or the greater of the administrative agent's reference
rate or 0.5% plus the Federal Funds effective rate, each plus an applicable
margin. The amount available for borrowing is reduced by letters of credit
outstanding. The Company is currently obligated to pay commitment fees equal to
0.3% per annum on the unused amount of the $400 million credit commitment. The
Credit Agreement includes certain restrictive financial and operating covenants.
Through March 29, 1998, there were no amounts outstanding, or letters of credit
issued, under the Credit Agreement.
NOTE 4 -- QUALCOMM PERSONAL ELECTRONICS
During March 1998, the Company and Sony signed an agreement whereby QUALCOMM
Personal Electronics ("QPE") became solely a manufacturing venture. Previously,
QPE had been a design and sales venture in addition to a manufacturing venture.
In connection with that agreement, certain expenses previously included in QPE
were absorbed by its parent companies in the second quarter of fiscal 1998.
NOTE 5 -- OTHER OPERATING EXPENSES
During November 1997, the Company acquired, for approximately $10 million,
substantially all the assets of Now Software, Inc., a developer of advanced
scheduling and calendaring software products. In connection with this asset
purchase, acquired in-process research and development of $7 million,
representing the fair value of software products still in the development stage
that had not yet reached technological feasibility, was expensed at the
acquisition date.
Also during the first quarter of fiscal 1998, the Company recorded a $5
million non-cash charge to operations relating to the impairment of leased
manufacturing equipment no longer used in the manufacturing process. The $5
million charge represents the estimated total cost of related lease obligations,
net of estimated recoveries.
During the second quarter of fiscal 1997, the Company recorded an $8.8
million non-cash charge to operations relating to the impairment of certain
long-lived assets. The $8.8 million charge represents the total carrying value
of these assets and related net disposition costs.
NOTE 6 -- SALE OF INVESTMENTS
During the first quarter of fiscal 1998, the Company recognized a net gain of
$3 million from the sale of, and from other investing activities related to,
investments in other entities.
9
<PAGE> 10
In February 1997, the Company and Globalstar Telecommunications Limited
("GTL") entered into an arrangement under which GTL agreed to accelerate the
vesting and exercisability of the Company's warrants to purchase GTL common
stock. The Company exercised such warrants in March 1997, and classified the GTL
shares as trading securities consistent with the Company's intent to sell the
GTL shares on a near-term basis. Accordingly, the Company adjusted the carrying
value of the GTL common stock to market value as of March 30, 1997, resulting in
an unrealized gain of $9.5 million, net of estimated selling expenses. The
Company sold the GTL common stock during the third quarter of fiscal 1997
resulting in an aggregate realized gain of $13.4 million.
NOTE 7 -- INCOME TAXES
The Company's income tax provision for the second quarter of fiscal 1998
reflects a revision in the estimated annual effective tax rate due primarily to
lower estimated pretax earnings and an increase in certain estimated tax
credits. Excluding the increase in certain estimated tax credits, the Company
currently estimates an annual effective income tax rate of approximately 29% for
fiscal 1998.
NOTE 8 -- COMMITMENTS AND CONTINGENCIES
GUARANTEES
The Company has issued a letter of credit to support a guarantee of up to
$22.5 million of Globalstar borrowings under an existing bank financing
agreement. The guarantee will expire in December 2000. The letter of credit is
collateralized by a commensurate amount of the Company's investments in debt
securities. As of March 29, 1998, Globalstar had no borrowings outstanding under
the existing bank financing agreement.
Under an agreement entered into during fiscal 1997 with Chilesat Telefonia
Personal S.A. ("Chilesat PCS"), the Company agreed to provide a $58 million
letter of credit on behalf of Chilesat PCS in which the Company may be required
to reimburse Chilesat PCS for a portion of Chilean government fines if certain
network build-out milestones are not met. The amount that Chilesat PCS may draw
on the letter of credit will decline as interim milestones are met. The letter
of credit will expire no later than December 31, 1999, and is collateralized by
a commensurate amount of the Company's investments in debt securities. As of
March 29, 1998, no amounts have been drawn on the letter of credit.
LITIGATION
On September 23, 1996, Ericsson Inc. and Telefonaktiebolaget LM Ericsson
("Ericsson") filed suit against the Company in Marshall, Texas and on December
17, 1996, Ericsson also filed suit against QPE in Dallas, Texas with both
complaints alleging that the Company's or QPE's CDMA products infringe one or
more patents owned by Ericsson. In December 1996, QUALCOMM filed a countersuit
alleging, among other things, unfair competition by Ericsson based on a pattern
of conduct intended to impede the acceptance and commercial deployment of
QUALCOMM's CDMA technology and is seeking a judicial declaration that certain of
Ericsson's patents are not infringed by QUALCOMM and are invalid. That
countersuit has now been consolidated with the Marshall, Texas action. On
September 10, 1996, OKI America, Inc. ("OKI") filed a complaint against Ericsson
seeking a judicial declaration that certain of OKI's CDMA subscriber products do
not infringe nine patents of Ericsson and that such patents are invalid. The
nine patents are among the eleven patents at issue in the litigation between the
Company and Ericsson. The OKI case has not yet been set for trial. The Marshall
case is set for trial in December 1998 and the Dallas case is set for trial in
June 1999. Although there can be no assurances that an unfavorable outcome of
the Marshall or Dallas cases would not have a material adverse effect on the
Company's results of operations, liquidity or financial position, the Company
believes the named Ericsson patents are not required to produce IS-95 compliant
systems and that Ericsson's claims are without merit.
10
<PAGE> 11
On March 5, 1997, the Company filed a complaint against Motorola, Inc.
("Motorola"). The complaint was filed in response to allegations by Motorola
that the Company's recently announced Q phone infringes design and utility
patents held by Motorola as well as trade dress and common law rights relating
to the appearance of certain Motorola wireless telephone products. The complaint
denies such allegations and seeks a judicial declaration that the Company's
products do not infringe any patents held by Motorola. On March 10, 1997,
Motorola filed a complaint against the Company (the "Motorola Complaint"),
alleging claims based primarily on the above alleged infringement. The Company's
motion to transfer the Motorola Complaint to the U.S. District Court for the
Southern District of California was granted on April 3, 1997. On April 24, 1997,
the court denied Motorola's motion for a preliminary injunction thereby
permitting the Company to continue to manufacture, market and sell the Q phone.
On April 25, 1997, Motorola appealed the denial of its motion for a preliminary
injunction. On January 16, 1998 the U.S. Court of Appeals for the Federal
Circuit denied Motorola's appeal and affirmed the decision of the U.S. District
Court for the Southern District of California refusing Motorola's request to
enjoin QUALCOMM from manufacturing and selling the Q phone. On June 4, 1997,
Motorola filed another lawsuit alleging infringement by QUALCOMM of four
patents. Three of the patents had already been alleged in previous litigation
between the parties. On August 18, 1997, Motorola filed another complaint
against the Company alleging infringement by the Company of seven additional
patents. All of the Motorola cases have been consolidated for pretrial
proceedings. The cases have been set for a final pretrial conference in November
1998. Although there can be no assurance that an unfavorable outcome of the
dispute would not have a material adverse effect on the Company's results of
operations, liquidity or financial position, the Company believes Motorola's
complaint has no merit and will vigorously defend the action.
On May 19, 1997, the Company filed a complaint against U.S. Philips
Corporation ("Philips") seeking a judicial declaration that certain of the
Company's products do not infringe three patents held by Philips and that such
patents are invalid. The court stayed all proceedings in the action until
December 15, 1997 to allow the parties to hold settlement discussions. On
December 16, 1997, the Company dismissed the case without prejudice pursuant to
a stipulation whereby the parties agreed that the Company could refile the case
if a negotiated resolution is not reached. In February 1998, the Company and
Philips, Philips Consumer Communications LP ("PCC") and Philips Electronics NV
entered into cross-license agreement which resolved all disputes which had been
the subject of the litigation. Under terms of the agreement, QUALCOMM granted
PCC a royalty-bearing license under certain of its patents to develop,
manufacture and sell CDMA subscriber units including those for cdmaOne
applications, and for the proposed European Telecommunications Standards
Institute ("ETSI") Universal Mobile Telephone System ("UMTS") standard being
referred to as "W-CDMA." Philips, PCC and Philips Electronics NV granted
QUALCOMM a license under certain of their patents for use and sale of CDMA
products.
The Company is engaged in other legal actions arising in the ordinary course
of its business and believes that the ultimate outcome of these actions will not
have a material adverse effect on its results of operations, liquidity or
financial position.
PERFORMANCE GUARANTEES
The Company and QPE have entered into contracts that provide for performance
guarantees to protect customers against late delivery or failure to perform.
These performance guarantees, and any future commitments for performance
guarantees, are obligations entered into separately, and in some cases jointly,
with partners to supply CDMA subscriber and infrastructure equipment. Certain of
these obligations provide for substantial performance guarantees that accrue at
a daily rate based on percentages of the contract value to the extent the
equipment is not delivered by scheduled delivery dates or the systems fail to
meet certain performance criteria by such dates. The Company is dependent in
part on the performance of its suppliers and strategic partners in order to
provide equipment which is the subject of the guarantees. Thus, the ability to
timely deliver such equipment may be outside of the Company's control. If the
Company and QPE are unable to meet their performance obligations, the payment of
the performance guarantees could amount to a significant portion of the contract
value and would have a material adverse effect on product margins and the
Company's results of operations, liquidity or financial position.
11
<PAGE> 12
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
This information should be read in conjunction with the condensed
consolidated financial statements and the notes thereto included in Item 1 of
this Quarterly Report and the audited consolidated financial statements and
notes thereto and Management's Discussion and Analysis of Results of Operations
and Financial Condition for the year ended September 28, 1997 contained in the
Company's 1997 Annual Report on Form 10-K.
Except for the historical information contained herein, the following
discussion contains forward-looking statements that involve risks and
uncertainties. QUALCOMM Incorporated's ("QUALCOMM" or the "Company") future
results could differ materially from those discussed here. Factors that could
cause or contribute to such differences include, but are not specifically
limited to: the Company's ability to successfully manufacture and sell
significant quantities of Code Division Multiple Access ("CDMA") infrastructure
and subscriber equipment on a timely basis; the ability to achieve revenue
growth in future quarters and develop and introduce cost effective new products
in a timely manner, avoiding delays in the commercial implementation of the
Company's CDMA technology; change in economic conditions of various markets
served by the Company or major customers of the Company, including the Asian
markets; continued currency fluctuations and risk; continued growth in the CDMA
subscriber population and the scale-up and operations of CDMA systems;
developments in current or future litigation; the Company's ability to
effectively manage growth and the intense competition in the wireless
communications industry; risks associated with vendor financing; timing and
receipt of license fees and royalties; failure to satisfy performance
obligations as well as the other risks detailed in this section, and in the
sections entitled Results of Operations and Liquidity and Capital Resources.
OVERVIEW
QUALCOMM, a Delaware corporation, is a leading provider of digital wireless
communications products, technologies and services. The Company designs,
develops, manufactures, markets and sells wireless communications,
infrastructure and subscriber equipment and Application Specific Integrated
Circuits ("ASICs") based on its CDMA technology and has licensed its CDMA
technology to major telecommunications equipment suppliers for incorporation
into their wireless communications products. The Company designed and is
manufacturing, distributing and operating the OmniTRACS system, a
satellite-based, two-way mobile communications and tracking system that provides
messaging, position reporting and other services for transportation companies
and other mobile and fixed-site customers. The Company also provides contract
development services, including the design and development of subscriber and
ground communications equipment for the Globalstar L.P. ("Globalstar")
satellite-based communications system. In addition, the Company develops,
manufactures, markets and sells a variety of other communications products,
including products for the U.S. government, and Eudora, a leading Internet-based
electronic mail software application, for personal, commercial and government
applications.
The Company experienced a reduction in second quarter fiscal 1998
communications systems revenues and gross margin from the first quarter of
fiscal 1998. The decline was primarily due to economic conditions in South
Korea. In addition, the Company experienced lower demand for its 1900 MHz
Personal Communications Services ("PCS") Q phone in the U.S. and South Korea and
a delay in the introduction of the Company's 800 MHz cellular dual-mode Q phone.
During the second quarter of fiscal 1998, the Company implemented a proactive
program to address certain quality issues related to its QCP phone models. The
Company devoted a portion of its manufacturing capacity to re-work QCP phones in
finished goods inventory, which resulted in fewer handset shipments as compared
to the previous quarter. There can be no assurance that the Company will not
encounter similar manufacturing issues in the future, which could have a
material adverse effect on the Company's margins, results of operations,
liquidity or financial position. Communications systems revenues and gross
margin may fluctuate in future quarters depending on mix of products sold,
competitive pricing, new product introduction costs and other factors.
The Company's revenues generated from its proprietary CDMA technology are
currently derived primarily from subscriber and infrastructure products and
ASICs component sales to domestic and international wireless
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<PAGE> 13
communications equipment suppliers and service providers. In addition, the
Company has derived significant revenues and margins from license, royalty and
development fees. Although the Company expects to continue to receive CDMA
license, royalty and development fees from its existing agreements and may
receive similar fees and royalties from new licensees, the amount and timing of
these CDMA fees and royalties will depend on the extent to which and when the
Company's CDMA technology is commercially implemented. Delays in roll-out of
future cellular, PCS or Wireless Local Loop ("WLL") systems could have a
material adverse effect on quarterly and annual revenues. Additionally, revenues
generated from license, royalty and development fees will fluctuate quarterly
and yearly due to variations in the amount and timing of recognition of CDMA
license fees, the timing, pricing and amount of sales by the Company's licensees
and the Company's ability to accurately estimate such sales, and the impact of
currency fluctuations and risk on royalties generated from international
licensees.
Sales of infrastructure equipment internationally are subject to a number of
risks, including substantial competition with other providers of CDMA, Global
System for Mobile Communications ("GSM"), and other competing wireless systems
(most of whom have substantially greater resources than the Company and are
well-established equipment manufacturers with long manufacturing histories) and
risks related to unexpected changes in regulatory requirements, export controls,
national standards, currency exchange rates, expropriation, tariffs and other
barriers, political risks and difficulties in staffing and managing foreign
operations and risks associated with providing long-term customer financing
agreements. WLL systems in the U.S. and foreign countries are just beginning to
be implemented, and their market acceptance is uncertain. The wireless
telecommunications industry is experiencing significant technological changes.
As a result, the future prospects of the industry, the success of PCS, WLL and
other competing services and the Company's ability to generate substantial
revenues and profits from sales of CDMA infrastructure and subscriber equipment
are uncertain.
In order to commence operation, PCS and WLL operators will need, among other
things, to invest substantial capital and complete their system designs and
build-outs. Any delays in connection with the commercial rollout of CDMA
technology by the Company's major customers, or any delays in obtaining orders
for the Company's infrastructure equipment from both national and international
customers could result in under-utilization of the Company's manufacturing
facility and have a material adverse effect on the Company's results of
operations, liquidity or financial position.
The manufacture of wireless communications equipment is a complex and precise
process involving specialized manufacturing and testing equipment and processes.
Defects or impurities in the components or materials used, equipment failure,
product design issues, or other difficulties could adversely affect the
Company's ability to meet planned production yields. There can be no assurance
that the Company will not encounter difficulties in achieving planned yields on
its products, which would adversely affect its margins, results of operations,
liquidity or financial position.
The Company manufactures its CDMA based digital cellular and PCS subscriber
equipment through QUALCOMM Personal Electronics ("QPE"), a joint venture between
the Company and a subsidiary of Sony. The risks associated with the commercial
manufacture of the Company's infrastructure and subscriber equipment products,
which are described in this document, also apply to the manufacture of
subscriber equipment by QPE. To the extent that QPE experiences any of the
complications, delays or interruptions described herein, the Company's results
of operations, liquidity or financial position would be adversely affected.
A significant portion of the Company's CDMA subscriber and infrastructure
equipment and ASICs components sales are, and are expected to continue to be,
concentrated with a limited number of customers. As a result, the Company's
performance will depend significantly on relatively large orders from a limited
number of customers, as well as gaining additional customers, both within
existing cellular, PCS and WLL markets and in new markets. The loss of any
existing customer for CDMA equipment and ASICs components or the failure of the
Company to gain additional customers could have a material adverse effect on the
Company's business, results of operations, liquidity or financial position.
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Revenues from international customers accounted for approximately 30% of
total revenues in fiscal 1997. Since the Company is a relatively new entrant
into some of these markets and its competitors may have long-standing,
entrenched positions, it may be difficult for the Company to succeed in certain
markets, thereby limiting international sales. Other risks faced by the Company
in its international business include unexpected changes in economic conditions,
regulatory requirements, export controls, national standards, currency exchange
rates, expropriation, tariffs or other barriers, political risks, difficulties
in staffing and managing foreign operations and potentially negative tax
consequences. These factors could have an adverse impact on the Company's
operating results. In addition, because certain joint ventures between the
Company and foreign firms provide for a minority ownership position by the
Company in the joint venture, the Company may be limited in taking actions it
might otherwise wish to pursue. The Company is subject to U.S. export control
laws and regulations with respect to all of the Company's products and
technology that are exported from the United States. The Company is subject to
the risk that more stringent export control requirements could be imposed in the
future on product classes that include products exported by the Company, which
would result in additional compliance burdens on the Company or ensure the
enforceability of its contract rights. In addition, the laws of certain foreign
countries, including developing nations in Asia, South America, Africa and
Eastern Europe, may not protect the Company's intellectual property rights or
ensure the enforceability of its contract rights to the same extent as do the
laws of the United States.
The Company generates revenues from its domestic OmniTRACS business by
manufacturing and selling OmniTRACS terminals and related application software
packages and by providing ongoing messaging and maintenance services to domestic
OmniTRACS users. The Company generates revenues from its international OmniTRACS
business through license fees, sales of network equipment and terminals and fees
from engineering support services. International messaging services are provided
by service providers that operate network management centers for a region under
licenses granted by the Company.
The Company has entered into a development agreement with Globalstar to
design and develop subscriber equipment and the ground communication stations of
the Globalstar system. The revenues from this contract are expected to be in
excess of $700 million and the Company is reimbursed for its development
services on a cost-plus basis. During March 1998, the Company agreed to defer up
to $100 million of contract payments as interest bearing customer financing
under its development contract with Globalstar. During April 1997, the Company
was awarded a $275 million contract to manufacture and supply commercial
gateways for deployment of Globalstar's worldwide Low-Earth-Orbiting
satellite-based digital telecommunications system. This multi-year agreement has
subsequently grown to $330 million and could grow to approximately $600 million
as the Globalstar network is built out. The Company began shipment of their
production gateways during April 1998. Globalstar may require additional capital
to fund payment for the equipment to be developed by the Company. To date,
Globalstar has received funds and financing commitments totaling approximately
$2.6 billion. There can be no assurance that Globalstar will be successful in
raising additional capital, if needed, or that delays or technical or regulatory
developments will not arise which could adversely affect Globalstar's ability to
continue funding the development agreement, which could have a material adverse
effect on the Company's business and results of operations. The Company's
interest in Globalstar is owned indirectly through certain limited partnerships.
The Company's current ownership interest in Globalstar is approximately 6.5%.
The Company has experienced, and expects to continue to experience, increased
operating expenses in absolute dollars. Although the Company expects to continue
its efforts in the overall expansion of its business base, it will continue to
emphasize control of operating expenses and reduction of these expenses as a
percentage of revenue. The Company expects to continue to add to its engineering
resources, increase its investments in research and development projects, expand
its sales and marketing efforts and continue the overall expansion of the
business base as the Company's products are marketed in major areas throughout
the world.
A review of the Company's current litigation is disclosed in the Notes to
Condensed Consolidated Financial Statements (see Notes to Condensed Consolidated
Financial Statements -- Note 8 Commitments and Contingencies). The Company is
also engaged in other legal actions arising in the ordinary course of its
business and believes that the ultimate outcome of these actions will not have a
material adverse effect on its results of operations, liquidity or financial
position.
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RESULTS OF OPERATIONS
The following table sets forth certain revenue and expense items as percentages
of revenues:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
---------------------- ---------------------
March 29, March 30, March 29, March 30,
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues:
Communications systems............... 82% 87% 84% 85%
Contract services.................... 9 8 8 9
License, royalty and development fees 9 5 8 6
--- --- --- ---
Total revenues.......................... 100% 100% 100% 100%
--- --- --- ---
Operating expenses:
Communications systems............... 64% 71% 64% 69%
Contract services.................... 6 6 6 7
Research and development............. 10 9 10 10
Selling and marketing................ 8 5 7 6
General and administrative........... 5 4 5 4
Other................................ -- 2 1 1
--- --- --- ---
Total operating expenses................ 93% 97% 93% 97%
--- --- --- ---
Operating income ....................... 7 3 7 3
Interest income, net.................... -- -- -- 1
Unrealized gain on trading securities .. -- 2 -- 1
Distributions on trust convertible
preferred securities of subsidiary
trust................................ (1) (1) (1) --
Minority interest in income of
consolidated subsidiaries............ (3) -- (1) (1)
--- --- --- ---
Income before income taxes.............. 3 4 5 4
Income tax expense...................... -- (1) (1) (1)
--- --- --- ---
Net income.............................. 3% 3% 4% 3%
=== === === ===
Communications systems costs as a
percentage of communications
systems revenues..................... 78% 82% 76% 81%
Contract services costs as a percentage
of contract services revenues........ 76% 74% 74% 73%
</TABLE>
SECOND QUARTER AND FIRST SIX MONTHS OF FISCAL 1998 COMPARED TO SECOND QUARTER
AND FIRST SIX MONTHS OF FISCAL 1997
Total revenues for the second quarter of fiscal 1998 were $761 million, an
increase of $175 million or 30% compared to total revenues of $586 million for
the second quarter of fiscal 1997. Total revenues for the first six months of
fiscal 1998 were $1,546 million, an increase of $572 million over total revenues
of $975 million for the first six months of fiscal 1997. Revenue growth for the
second quarter and first six months of fiscal 1998 was due to significant growth
in communications systems which was primarily driven by increased revenues from
CDMA subscriber equipment and ASICs products, as well as increased contract
services revenues from the Company's development agreement with Globalstar and
increased license, royalty and development fees.
Communications systems revenues which consisted primarily of revenues from
CDMA subscriber equipment, ASICs sales to CDMA licensees, the sale of the
Company's OmniTRACS, products and services, and CDMA infrastructure equipment,
were $626 million, an increase of $118 million or 23% over the second quarter in
fiscal 1997. The growth in communications systems revenues for the second
quarter of fiscal 1998 compared to the second quarter of fiscal 1997 was
primarily attributed to the following: increased sales of
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<PAGE> 16
CDMA subscriber equipment and software sales, increased ASIC sales; and
increased revenues from OmniTRACS system sales and messaging. These increases
were partially offset by a decrease in infrastructure revenues as compared to
the year ago quarter, when a substantial portion of a major infrastructure
contract was recognized. For the first six months of fiscal 1998, communications
systems revenues were $1,302 million, a 56% increase compared to revenues of
$832 million for the same period in fiscal 1997. The increase for the first six
months of fiscal 1998 represents the higher volumes of CDMA subscriber equipment
and ASICs shipments as well as increased revenues from OmniTRACS system sales
and CDMA software revenue.
Contract services revenues totaled $65 million in the second quarter of
fiscal 1998 or 9% of total revenues, compared to $49 million or 8% of total
revenues for the second quarter of fiscal 1997. Contract services revenues for
the first six months of fiscal 1998 increased to $129 million from $88 million
for the same period in fiscal 1997, an increase of 46%. The increase of $16
million for the quarter and $41 million for the first six months resulted
primarily from the development agreement with Globalstar which has continued to
ramp up since its inception in fiscal 1994.
License, royalty and development fees for the second quarter of fiscal 1998
increased to $70 million from $29 million for the second quarter of the prior
fiscal year. Revenues for the second quarter of fiscal 1998 included revenues
for existing and unannounced licensees. License, royalty and development fees
for the first six months of fiscal 1998 were $115 million, compared to
$54 million for the same period in fiscal 1997.
During the second quarter of fiscal 1998, the Company determined that royalty
estimates have become more reliable due to sufficient historical data and
availability of information on licensee subscriber activity. The Company
believes it can now reasonably estimate certain royalty revenues that previously
could not be reliably estimated prior to being reported by its licensees.
Therefore, in the second quarter of fiscal 1998, the Company recognized actual
reported royalties from such licensees for the prior quarter and accrued
estimated royalties for the current quarter. The effect of this one-time
adjustment increased royalty revenue by $18 million in the second quarter of
fiscal 1998. Royalty income will fluctuate quarterly due to the timing and
amount of sales by the Company's licensees and the Company's ability to
accurately estimate such sales as well as currency fluctuations, in particular
the Korean won. The Company expects to continue to experience considerable
fluctuation in quarterly and yearly operating results in the future due to
variations in the amount and timing of recognition of CDMA license, royalty and
development fees.
Costs of communications systems, which consisted primarily of costs of sales
of CDMA subscriber and infrastructure equipment, ASICs components and OmniTRACS
products and services were $485 million or 78% of communications systems
revenues for the second quarter of fiscal 1998, compared to $419 million or 82%
of communications systems revenues for the same period in the prior fiscal year.
For the first six months of fiscal 1998, communications systems costs were $993
million or 76% of communications systems revenues, compared to $678 million or
81% of communications systems revenues for the same period in fiscal 1997. The
dollar increase in costs primarily reflects increased shipments of CDMA
subscriber equipment and ASICs components. The decrease in communications
systems costs as a percentage of communications systems revenues reflects lower
costs achieved with high volume sales and manufacturing of CDMA equipment and
higher software sales. Communications systems costs as a percentage of
communications systems revenues may fluctuate in future quarters depending on
mix of products sold, competitive pricing, new product introduction costs and
other factors.
Contract services costs were $49 million or 76% of contract services revenues
for the second quarter of fiscal 1998, compared to $36 million or 74% of
contract services revenues for the second quarter of fiscal 1997. Contract
services costs for the first six months of fiscal 1998 were $95 million or 74%
of contract services revenues, compared to $64 million or 73% of contract
services revenues for fiscal 1997. The dollar increase in contract services
costs was primarily related to the Globalstar development contract.
Research and development expenses were $77 million or 10% of revenues for the
second quarter of fiscal 1998, compared to $53 million or 9% of revenues for the
second quarter of fiscal 1997. For the first six months of fiscal 1998 research
and development costs were $152 million or 10% of revenues, compared to $99
million or 10% of revenues for the first six months of fiscal 1997. Overall
research and development efforts are expected
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<PAGE> 17
to continue into future quarters and research and development expenditures in
absolute dollars are expected to increase throughout fiscal 1998.
Selling and marketing expenses were $60 million or 8% of total revenues for
the second quarter of fiscal 1998, compared to $31 million or 5% of total
revenues for the same quarter last year. For the first six months of fiscal
1998, selling and marketing expenses were $116 million or 7% of revenues,
compared to $58 million or 6% of revenues for the same period in fiscal 1997.
The dollar increase in selling and marketing expenses for the quarter and the
first six months was primarily due to higher volume of sales of CDMA subscriber
equipment along with increased national and international marketing activities.
General and administrative expenses were $38 million or 5% of total revenues
for the second quarter of fiscal 1998, compared to $22 million or 4% of total
revenues for the second quarter of fiscal 1997. General and administrative
expenses for the first six months of fiscal 1998 were $75 million or 5% of
revenues, compared to $38 million or 4% of revenues for the same period in
fiscal 1997. The dollar increase for the quarter and the first half of the
fiscal year was attributable to continued growth in personnel and associated
overhead costs necessary to support the overall growth in the Company's
operations as well as increased litigation expenses.
A review of the components of other operating expenses is disclosed in the
Notes to Condensed Consolidated Financial Statements (see Notes to Condensed
Consolidated Financial Statements -- Note 5 Other Operating Expenses).
Interest income was $10 million during the second quarter of fiscal 1998
compared to $7 million for the second quarter fiscal 1997. For the first six
months of fiscal 1998, interest income was $22 million compared to $11 million
for the same period in fiscal 1997. The increase for the second quarter of
fiscal 1998 and the first six months of fiscal 1998 reflects the interest earned
on the proceeds from the private placement of Trust Convertible Preferred
Securities which occurred during March 1997.
Interest expense decreased to $2 million in the second quarter of fiscal
1998, compared to $3 million in the second quarter of fiscal 1997. For the first
six months of fiscal 1998, interest expense was $4 million compared to $5
million for the same period in fiscal 1997. This decrease in the second quarter
and first six months of fiscal 1998 is the result of decreased bank borrowings
to support the working capital needs of QPE.
The unrealized gain on trading securities of approximately $9 million for the
second quarter and first six months of fiscal 1997 relates to a market value
adjustment in the value of equity trading securities. The securities were sold
during the third quarter of fiscal 1997.
During the first quarter of fiscal 1998, the Company recognized a net gain of
$3 million from the sale of, and from other investing activities related to,
investments in other entities.
Distributions on Trust Convertible Preferred Securities of $10 million for
the second quarter of fiscal 1998, and $20 million for the first six months of
fiscal 1998 relate to the private placement of $660 million of 5 3/4% Trust
Convertible Preferred Securities by QUALCOMM in March 1997.
The minority interest represents other parties' or stockholders' share of the
income or losses of consolidated subsidiaries, including QPE, a joint venture
with a subsidiary of Sony. Minority interest for the second quarter of fiscal
1998 and the first six months of fiscal 1998 includes the impact of
restructuring QPE. During March 1998, the Company and Sony signed an agreement
whereby QPE became solely a manufacturing venture. Previously, QPE had been a
design and sales venture in addition to a manufacturing venture. In connection
with that agreement, certain expenses previously included in QPE were absorbed
by its parent companies in the second quarter of fiscal 1998.
Income tax expense for the second quarter of fiscal 1998 decreased $5 million
compared to the second quarter of fiscal 1997. The decrease was primarily due to
a revision in the estimated annual effective tax rate and an increase in certain
estimated tax credits. Excluding the increase in certain estimated tax credits,
the
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<PAGE> 18
annual effective tax rate for fiscal 1998 is currently estimated to be 29%.
Income tax expense was $20 million for the first six months of fiscal 1998
compared to $9 million for fiscal 1997, resulting primarily from higher pretax
earnings for the first six months of fiscal 1998 compared to the same period of
fiscal 1997.
LIQUIDITY AND CAPITAL RESOURCES
The Company anticipates that the cash and cash equivalents and investments
balances of $548 million at March 29, 1998, including interest earned thereon,
will be used to fund working and fixed capital requirements, including
facilities related to the expansion of its operations, financing for customers
of its CDMA infrastructure equipment and investment in joint ventures or other
companies and other assets to support the growth of its business.
In the first half of fiscal 1998, $61 million in cash was used by operating
activities, compared to $114 million used by operating activities in the first
half of fiscal 1997. Cash used by operating activities in the first half of
fiscal 1998 includes $223 million of net working capital requirements offset by
$162 million of net cash flow provided by operations. The improved cash flow
from operations primarily reflects the increase in net income resulting from
increased revenues and gross margins. Net working capital requirements of $223
million reflect increases in accounts receivable, finance receivables, and
inventories which were offset by an increase in accounts payable and accrued
liabilities. The increase in accounts and finance receivables in the first half
of fiscal 1998 primarily reflects the continued growth in equipment and
component sales. The increases in inventories and accounts payable and accrued
liabilities are primarily attributable to the growth of the business.
Additionally, higher inventory balances reflect an increase in Q phones and QCP
phones in finished goods inventory. During the second quarter of fiscal 1998,
the Company experienced lower demand for its 1900 MHz PCS Q phone which resulted
in increased inventory balances. The increase in QCP inventory is associated
with the re-work of finished goods inventory performed during the second quarter
of fiscal 1998.
Investments in capital expenditures, intangible assets and other entities
totaled $170 million in the first half of fiscal 1998, compared to $99 million
in the same period of fiscal 1997. Significant components in the first half of
fiscal 1998 consisted of the purchase of $154 million of capital assets, the
purchase of $12 million of intangible assets, and the investment of $4 million
in entities in which the Company holds less than a 50% interest. During the
second quarter of fiscal 1997, the Company agreed to purchase $42 million of
voting preferred shares representing a 50% ownership interest in a corporate
joint venture, Chilesat PCS. The Company expects to continue making significant
investments in capital assets, including new facilities and building
improvements throughout fiscal 1998.
An important element of the Company's strategy is to be a major supplier of
CDMA infrastructure and subscriber equipment worldwide for cellular, PCS and WLL
service providers. The Company's ability to generate substantial revenues and
profits from sales of infrastructure and subscriber equipment will require
continued substantial capital investments by the Company and is subject to risks
and uncertainties. The Company's ability to generate substantial sales of CDMA
infrastructure and subscriber equipment to PCS licensees is subject to a number
of risks in addition to those facing other wireless service providers. Many of
these licensees have limited financial resources, are highly leveraged and will
require large amounts of capital to complete the build-out of their systems.
There can be no assurance that these licensees will be able to raise such
capital.
The Company has an ownership interest in certain U.S. and foreign PCS
licensees and service providers, including $20 million in NextWave Telecom Inc.,
("NextWave") and $4 million in Chase Telecommunications, Inc. ("Chase"). The
Company may continue to make similar investments in future periods in an effort
to expand its infrastructure business. There can be no assurance any of these
licensees or service providers, including NextWave and Chase, will be able to
obtain sufficient financing to build-out their systems or meet their payment
obligations to the FCC. The failure of these licensees and service providers to
obtain sufficient financing or to meet their obligations to the FCC could
adversely affect the value of the Company's investments in these entities. There
can be no assurances that these current or future investments, loans or advances
will provide an adequate
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<PAGE> 19
financial or market return. As a result, an impairment of such investments,
loans and advances may have a material adverse effect on the Company's results
of operations, liquidity or financial position.
The Company may provide further equity or debt, as necessary, to support the
future build-out and operational needs of entities in which the Company has
invested. Additionally, the Company is currently involved in proposals for
cellular licenses, which if successful, could result in significant funding
requirements to support the build-out and operational needs of such systems.
There can be no assurances that these current or future investments will provide
an adequate financial or market return.
In the first half of fiscal 1998, the Company's financing activities used $30
million. QPE made net repayments of $54 million on its outstanding credit
facility. This use of cash was offset by $26 million in proceeds from the
issuance of common stock under the Company's stock option and employee stock
purchase plans. In the first half of fiscal 1997, the Company's financing
activities provided net cash of $718 million. The first half of fiscal 1997
included $660 million in proceeds from the issuance of the Convertible Preferred
Securities, offset by $19 million of deferred costs, and $18 million from the
issuance of common stock under the Company's stock option and employee stock
purchase plans. Additionally, during the first half of fiscal 1997, QPE drew
down $59 million of the credit facility to fund working capital requirements
necessary to support the significant expansion in production of subscriber
equipment.
The design, development, manufacture and marketing of digital wireless
communication products and services are highly capital intensive. To the extent
that such cash resources are insufficient to fund the Company's activities, the
Company may be required to raise additional funds, potentially in the near term,
which may be derived through additional debt, equity financing, or other
sources. There can be no assurance that additional financing will be available
or, if available that it will be on acceptable terms. If additional capital is
raised through the sale of additional equity or convertible debt securities,
dilution to the Company's stockholders could occur. The Company continues to
evaluate financing alternatives, including extension of the current QPE secured
revolving credit facilities or other sources.
On March 11, 1998, the Company and a group of banks entered into a $400
million unsecured revolving credit agreement under which the banks are committed
to make loans to the Company and to extend letters of credit on behalf of the
Company. The credit agreement expires in March 2001 and may be extended on an
annual basis thereafter, subject to approval of a requisite percentage of the
lenders. The amount available for borrowing is reduced by letters of credit
outstanding. The Company is currently obligated to pay commitment fees equal to
0.3% per annum on the unused amount of the $400 million credit commitment. The
credit agreement includes certain restrictive financial and operating covenants.
Through March 29, 1998, there were no amounts outstanding, or letters of credit
issued, under the credit agreement.
The actual amount and timing of working capital and capital equipment
expenditures that the Company may incur in future periods may vary
significantly. This will depend upon numerous factors, including: the extent and
timing of the commercial deployment of the Company's CDMA technology in the U.S.
and worldwide; investments in joint ventures or other forms of strategic
alliances; the requirement to provide CDMA vendor financing; the growth in
personnel and related facility expansion; the increase in manufacturing
capacity; and the extension or change in terms of trade accounts receivable. In
addition, expenses related to any patent infringement, or other litigation, may
require additional cash resources and may have an adverse impact on the
Company's results of operations, liquidity or financial position.
Cellular, PCS and WLL network operators both domestic and international,
increasingly have required their suppliers to arrange or provide long-term
financing for them as a condition to obtaining or bidding on infrastructure
projects. As such, the Company may continue to enter into significant future
commitments to provide or guarantee long-term financing for its customers. In
order to arrange or provide for such financing, the Company will likely be
subjected to significant project, market, political and credit risks. The
Company may be required to provide such financing directly and/or through a
guarantee of such financing through third-party lenders. The inability to
arrange or provide such financing or to successfully compete for infrastructure
projects could have a material adverse effect on the Company. The amount of such
financing could become significant
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and, if not repaid, could have a material adverse effect on the Company's
results of operations, liquidity or financial position. The Company may be
required to maintain any such extensions of credit, or remain obligated under
guarantees, until maturity, which could have a material adverse effect on the
Company's credit rating. Although the Company may seek to have third parties
assume some or all of any such credit arrangements, there can be no assurance
that the Company will be able to do so. Such amounts financed may include "soft
costs" (such as software, cell site leases and permits), and thus the amount
financed may exceed 100% of infrastructure equipment costs. The Company has
vendor financing obligations with Sprint PCS (through Nortel), and directly with
other service providers. The Company has limited experience evaluating the
credit worthiness or commercial viability of potential purchasers of CDMA
equipment, and there can be no assurances that such customers will not default
on any financing arranged or provided by the Company for the purchase of its
CDMA equipment and services.
The Company's ability to arrange or provide and be competitive with such
financing will depend on a number of factors, including the Company's capital
structure, level of available credit and ability to provide financing in
conjunction with third-party lenders. There can be no assurance that the Company
will be able to arrange or provide such financing on terms and conditions, and
in amounts, that will be satisfactory to such network operators. The Company may
be required to hold any loans, or remain obligated under guarantees, until
maturity, which could have a material adverse effect on the Company's credit
rating. Most of the Company's competitors have substantially greater resources
than the Company, which may enable them to offer more favorable financing terms
and successfully compete against the Company for infrastructure projects. The
inability to arrange or provide such financing or to successfully compete for
infrastructure projects could have a material adverse effect on the Company and
its business prospects.
During March 1998, the Company agreed to defer up to $100 million of contract
payments, with interest accruing at 5 3/4% capitalized quarterly, as customer
financing under its development contract with Globalstar. Financed amounts
outstanding as of January 1, 2000 will be repaid in eight equal quarterly
installments commencing as of that date, with final payment due October 1, 2001
accompanied by all then unpaid accrued interest. At March 29, 1998, contract
payments of approximately $58 million were outstanding from Globalstar as
interest bearing financed amounts. Subject to terms and conditions, Globalstar
is entitled to defer $4.2 million from each future monthly development contract
payment until the $100 million limit is reached.
The Company has issued a letter of credit to support a guarantee of up to
$22.5 million of Globalstar, L.P. borrowings under an existing bank financing
agreement. The guarantee will expire in December 2000. The letter of credit is
collateralized by a commensurate amount of the Company's investments in debt
securities. As of March 29, 1998, Globalstar had no borrowings outstanding under
the existing bank financing agreement.
Under an agreement entered into during fiscal 1997 with Chilesat Telefonia
Personal S.A. ("Chilesat PCS"), the Company agreed to provide a $58 million
letter of credit on behalf of Chilesat PCS in which the Company may be required
to reimburse Chilesat PCS for a portion of Chilean government fines if certain
network build-out milestones are not met. The amount that Chilesat PCS may draw
on the letter of credit will decline as interim milestones are met. The letter
of credit will expire no later than December 31, 1999, and is collateralized by
a commensurate amount of the Company's investments in debt securities.
The Company and QPE have entered into contracts that provide performance
guarantees to protect customers against late delivery or failure to perform.
These performance guarantees, and any future commitments for performance
guarantees, are obligations entered into separately, and in some cases jointly,
with partners to supply CDMA subscriber and infrastructure equipment. Certain of
these obligations provide for substantial performance guarantees that accrue at
a daily rate based on percentages of the contract value to the extent the
equipment is not delivered by scheduled delivery dates or the systems fail to
meet certain performance criteria by such dates. The Company is dependent in
part on the performance of its suppliers and strategic partners in order to
provide equipment which is the subject of the guarantees. Thus, the ability to
timely deliver such equipment may be outside the Company's control. If the
Company and QPE are unable to meet their performance obligations, the payment of
the performance guarantees could amount to a significant portion of the contract
20
<PAGE> 21
value and would have a material adverse effect on product margins and the
Company's results of operations, liquidity or financial position.
YEAR 2000 ISSUE
The Year 2000 issue arises from the fact that most computer software programs
have been written using two digits rather than four to represent a specific
year. Any computer programs that have date-sensitive software may recognize a
date using "00" as the year 1900 rather than the year 2000. This could result in
a system failure or miscalculation causing disruptions of operations, including,
among other things, a temporary inability to process transactions, send invoices
or engage in similar normal business activities. Based on a recent assessment,
the Company believes that it will not be required to modify or replace
significant portions of its software in order to address its Year 2000 issue.
The Company has initiated formal communications with all of its significant
suppliers and large customers to determine the extent to which the Company is
vulnerable to those third parties' failure to remediate their own Year 2000
issue. There can be no assurance that the systems of other companies will be
converted timely, or that a failure to convert by another company, or a
conversion that is incompatible with the Company's systems, would not have a
material adverse effect on the Company.
FUTURE ACCOUNTING REQUIREMENTS
In June 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 130 ("FAS 130"), "Reporting
Comprehensive Income," which the Company will be required to adopt for fiscal
year 1999. This statement will require the Company to report in the financial
statements, in addition to net income, comprehensive income and its components
including, as applicable, foreign currency items, minimum pension liability
adjustments and unrealized gains and losses on certain investments in debt and
equity securities. Upon adoption, the Company will also be required to
reclassify financial statements for earlier periods provided for comparative
purposes. The Company currently expects that the effect of adoption of FAS 130
may be primarily from foreign currency translation adjustments and has not yet
determined the manner in which comprehensive income will be displayed.
In June 1997, the FASB issued Statement of Financial Accounting Standards No.
131 ("FAS 131"), "Disclosures about Segments of an Enterprise and Related
Information," which the Company will be required to adopt for fiscal year 1999.
This statement establishes standards for reporting information about operating
segments in annual financial statements and requires selected information about
operating segments in interim financial reports issued to shareholders. It also
establishes standards for related disclosures about products and services,
geographic areas and major customers. Under FAS 131, operating segments are to
be determined consistent with the way that management organizes and evaluates
financial information internally for making operating decisions and assessing
performance. The Company has not determined the impact of the adoption of this
new accounting standard on its consolidated financial statement disclosures.
21
<PAGE> 22
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
See Note 8 of Notes to Condensed Consolidated Financial Statements.
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
The Company's Annual Meeting of Stockholders (the "Annual Meeting") was held on
February 10, 1998. At the Annual Meeting, the stockholders of the Company (i)
elected four directors to hold office until the 2001 Annual Meeting of
Stockholders or until his/her successor is elected, as listed below; (ii)
approved the Amendment to the Company's Restated Certificate of Incorporation;
(iii) approved the Company's 1991 Stock Option Plan, as amended; (iv) approved
the Company's 1991 Employee Stock Purchase Plan, as amended; (v) approved the
Company's 1998 Non-Employee Directors' Stock Option Plan as an amendment and
restatement of the Company's existing Non-Employee Directors' Stock Option Plan;
and (vi) ratified the selection of Price Waterhouse LLP as the Company's
independent accountants for the fiscal year ending September 27, 1998.
The Company had 68,608,552 shares of Common Stock outstanding as of December 18,
1997, the record date for the Annual Meeting. At the Annual Meeting, holders of
a total of 58,535,145 shares of Common Stock were present in person or
represented by proxy. The following sets forth information regarding the results
of the voting at the Annual Meeting:
Proposal 1: Election of Directors
<TABLE>
<CAPTION>
Shares Voting Shares
Director In Favor Withheld
-------- -------- --------
<S> <C> <C>
Irwin Mark Jacobs 58,441,282 93,863
Andrew J. Viterbi 58,444,593 90,552
Adelia A. Coffman 58,150,601 384,544
Neil Kadisha 58,040,629 494,516
</TABLE>
Directors whose term of office continued after the annual meeting are: Robert
E. Kahn, Jerome S. Katzin, Duane A. Nelles, Frank Savage, Brent Scowcroft,
Harvey P. White, Richard C. Atkinson, Peter M. Sacerdote and Marc I. Stern.
Proposal 2: Approval of the Amendment to the Company's Restated Certificate of
Incorporation
<TABLE>
<S> <C>
Votes in favor: 56,843,425
Votes against: 1,548,252
Abstentions: 143,468
</TABLE>
Proposal 3: Approval of the 1991 Stock Option Plan, as Amended
<TABLE>
<S> <C>
Votes in favor: 27,155,655
Votes against: 7,827,701
Abstentions: 319,027
</TABLE>
<TABLE>
<S> <C>
Broker non-votes: 23,232,762
</TABLE>
22
<PAGE> 23
Proposal 4: Approval of the 1991 Employee Stock Purchase Plan, as Amended
<TABLE>
<S> <C>
Votes in favor: 34,471,385
Votes against: 1,330,634
Abstentions: 256,600
Broker non-votes: 22,476,526
</TABLE>
Proposal 5: Approval of the 1998 Non-Employee Directors' Stock Option Plan
<TABLE>
<S> <C>
Votes in favor: 28,524,005
Votes against: 7,161,454
Abstentions: 373,140
Broker non-votes: 22,476,546
</TABLE>
Proposal 6: Ratification of Selection of Independent Accountants
<TABLE>
<S> <C>
Votes in favor: 58,328,460
Votes against: 65,256
Abstentions: 141,429
</TABLE>
ITEM 5. OTHER INFORMATION
Not applicable.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Credit Agreement dated as of March 11, 1998, among QUALCOMM Incorporated,
as Borrower, the Lender Parties, Bank of America N.T. & S.A., as
Administrative Agent, Syndication Agent and Initial Issuing Bank, and
Citibank, N.A., as Documentation Agent and Syndication Agent(1).
(b) Reports on Form 8-K
No reports on Form 8-K have been filed during the quarter for which this
report is filed.
(1) Certain portions of this exhibit have been omitted pursuant to a
request for confidential treatment. Omitted portions will be filed
separately with the Securities and Exchange Commission.
23
<PAGE> 1
Exhibit 10.1
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R.
SECTIONS 200.80(B)(4), 200.83 AND 240.24B-2.
* INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF
A CONFIDENTIAL TREATMENT REQUEST THAT IS FILED
SEPARATELY WITH THE COMMISSION
EXECUTION COPY
U.S. $400,000,000
CREDIT AGREEMENT
Dated as of March 11, 1998
Among
QUALCOMM INCORPORATED
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
BANK OF AMERICA N.T. & S.A.
as Administrative Agent, Syndication Agent and Initial Issuing Bank
and
CITIBANK, N.A.
as Syndication Agent and Documentation Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C>
SECTION 1.01. Certain Defined Terms ................................................. 1
SECTION 1.02. Computation of Time Periods ........................................... 15
SECTION 1.03. Accounting Terms ...................................................... 15
SECTION 1.04. Other Interpretive Provisions ......................................... 15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances .......................................................... 16
SECTION 2.02. Making the Advances ................................................... 16
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit .... 17
SECTION 2.04. Fees .................................................................. 19
SECTION 2.05. Termination or Reduction of the Commitments ........................... 20
SECTION 2.06. Repayment ............................................................. 20
SECTION 2.07. Interest .............................................................. 21
SECTION 2.08. Interest Rate Determination ........................................... 21
SECTION 2.09. Optional Conversion of Advances ....................................... 22
SECTION 2.10. Optional Prepayments .................................................. 22
SECTION 2.11. Increased Costs ....................................................... 22
SECTION 2.12. Illegality ............................................................ 23
SECTION 2.13. Payments and Computations ............................................. 23
SECTION 2.14. Taxes ................................................................. 24
SECTION 2.15. Sharing of Payments, Etc .............................................. 25
SECTION 2.16. Use of Proceeds ....................................................... 26
SECTION 2.17. Extension of Termination Date ......................................... 26
SECTION 2.18. Substitution of Lenders ............................................... 28
SECTION 2.19. Evidence of Debt ...................................................... 28
SECTION 2.20. Additional Interest on Eurodollar Rate Advances ....................... 28
SECTION 2.21. Presentation of Claims; Certificates .................................. 28
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 ................. 29
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance ................... 30
SECTION 3.03. Determinations Under Section 3.01 ..................................... 30
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower ........................ 30
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
ARTICLE V
COVENANTS OF THE BORROWER
<S> <C>
SECTION 5.01. Affirmative Covenants ................................................. 34
SECTION 5.02. Negative Covenants .................................................... 36
SECTION 5.03. Financial Covenants ................................................... 43
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default ..................................................... 43
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default .............. 46
ARTICLE VII
THE AGENTS
SECTION 7.01 Appointment and Authorization; "Agent" ................................. 46
SECTION 7.02 Delegation of Duties ................................................... 46
SECTION 7.03 Liability of the Agents ................................................ 47
SECTION 7.04 Reliance by the Agents ................................................. 47
SECTION 7.05 Notice of Default ...................................................... 47
SECTION 7.06 Lender Party Credit Decision ........................................... 48
SECTION 7.07 Indemnification of Agents .............................................. 48
SECTION 7.08 Agent in Individual Capacity ........................................... 49
SECTION 7.09 Successor Agent ........................................................ 49
SECTION 7.10 Co-Agents .............................................................. 49
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc ....................................................... 49
SECTION 8.02. Notices, Etc .......................................................... 50
SECTION 8.03. No Waiver; Remedies ................................................... 50
SECTION 8.04. Costs and Expenses .................................................... 50
SECTION 8.05. Right of Set-off ...................................................... 51
SECTION 8.06. Binding Effect; Entire Agreement ...................................... 52
SECTION 8.07. Assignments and Participations ........................................ 52
SECTION 8.08. Confidentiality ....................................................... 54
SECTION 8.09. No Liability of the Issuing Banks ..................................... 54
SECTION 8.10. Governing Law ......................................................... 54
SECTION 8.11. Execution in Counterparts ............................................. 54
SECTION 8.12. Jurisdiction, Etc ..................................................... 54
SECTION 8.13. Waiver of Jury Trial .................................................. 56
</TABLE>
<PAGE> 4
Schedules
Schedule I - List of Commitments and Applicable Lending Offices
Schedule 4.01(b) - Restricted and Unrestricted Subsidiaries
Schedule 4.01(d) - Required Authorizations and Approvals
Schedule 4.01(s) - Intellectual Property
Schedule 4.01(t) - Real Property
Schedule 4.01(u) - Existing Debt
Schedule 4.01(v) - Existing Equity Capital Investments
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A - Form of Promissory Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Request for Letter of Credit Issuance
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Compliance Certificate
<PAGE> 5
CREDIT AGREEMENT
Dated as of March 11, 1998
QUALCOMM INCORPORATED, a Delaware corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, BANK OF AMERICA N.T. & S.A.
("BankAmerica"), as administrative agent (the "Administrative Agent"), initial
issuing bank (the "Initial Issuing Bank"), and syndication agent, and CITIBANK,
N.A. ("Citibank"), as documentation agent (the "Documentation Agent") and
syndication agent (together with BankAmerica, the "Syndication Agents"), for the
Lender Parties (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recitals
of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Bank of
America National Trust and Savings Association with its office at 1850
Gateway Blvd. Concord, California 94520, ABA No. 1210-0035-8, Attention:
Agency Administrative Services #5596 For Credit to Bancontrol A/C No.
12334-16026 QUALCOMM Incorporated.
"Advance" means a Revolving Credit Advance or a Letter of Credit
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling," "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote
10% or more of the Voting Stock of such Person or to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent Related Persons" means each of BankAmerica and Citibank
and any successor agent arising under Section 7.09 and any successor
Issuing Bank hereunder, together with their respective Affiliates
(including, in the case of each of BankAmerica and Citibank, the
Arrangers), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agents" means each of the Administrative Agent, the
Documentation Agent and the Syndication Agents.
"Agreement" means this Credit Agreement.
"Anniversary Date" means the anniversary of the Effective Date
in each calendar year occurring during the term of this Agreement.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a Base
Rate Advance and such Lender Party's Eurodollar Lending Office in the
case of a Eurodollar Rate Advance.
<PAGE> 6
2
"Applicable Margin" means, as of any date of determination, a
percentage per annum determined by reference to the Public Debt Rating
(which, on the date hereof, is BB-) and the Leverage Ratio in effect on
such date (which, until delivery of the first financial statements
pursuant to Section 5.01(i), shall be deemed to be less than 1.5:1.0) as
set forth below:
<TABLE>
<CAPTION>
===============================================================================================
Public Debt Applicable Margin for Applicable Margin for
Rating Base Rate Advances Eurodollar Rate Advances
S&P/Moody's
===============================================================================================
Leverage Ratio Leverage Ratio
===============================================================================================
Less Equal Equal Equal Less Equal Equal Equal
than to or to or to or than to or to or to or
[*] greater greater greater [*] greater greater greater
than than than than than than
[*] [*] [*] [*] [*] [*]
but but but but
less less less less
than than than than
[*] [*] [*] [*]
===============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Level 1
At least BBB- [*]% [*]% [*]% [*]% [*]% [*]% [*]% [*]%
or Baa3
======================== ======== ======== ========= =========== ======== ========= ======== ==
Level 2
At least BB+ or [*]% [*]% [*]% [*]% [*]% [*]% [*]% [*]%
Ba1 but less
than Level 1
======================== ======== ======== ========= =========== ======== ========= ======== ==
Level 3
At least BB or [*]% [*]% [*]% [*]% [*]% [*]% [*]% [*]%
Ba2 but less
than Level 2
======================== ======== ======== ========= =========== ======== ========= ======== ==
Level 4
At least BB- [*]% [*]% [*]% [*]% [*]% [*]% [*]% [*]%
and Ba3 but
less than Level 3
======================== ======== ======== ========= =========== ======== ========= ======== ==
Level 5
Less than Level [*]% [*]% [*]% [*]% [*]% [*]% [*]% [*]%
4 or no rating
===============================================================================================
</TABLE>
"Applicable Percentage" means, as of any date of determination, a
percentage per annum determined by reference to the Public Debt Rating
in effect on such date (which, at the date hereof, is BB-) as set forth
below:
<TABLE>
<CAPTION>
==================================
Public Debt Applicable
Rating Percentage
S&P/Moody's
==================================
<S> <C>
Level 1
At least BBB- or 0.150%
Baa3
==================================
Level 2
At least BB+ or 0.175%
Ba1 but less
than Level 1
==================================
Level 3
At least BB or 0.200%
Ba2 but less
than Level 2
==================================
Level 4
At least BB- and 0.300%
Ba3 but less
than Level 3
==================================
Level 5
Less than Level 0.375%
4 or no rating
==================================
</TABLE>
"Arrangers" means each of BankAmerica Robertson Stephens and
Citicorp Securities, Inc.
* CONFIDENTIAL TREATMENT
REQUESTED
<PAGE> 7
3
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted by
the Administrative Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.17(c).
"Assumption Agreement" has the meaning specified in Section
2.17(c).
"Attorney Costs" means and includes all reasonable fees and
services of any law firm or other external counsel.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"BankAmerica" has the meaning specified in the recital of
parties to this Agreement.
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by
BankAmerica in San Francisco, California, as its "reference rate," or,
if announced, its "prime rate." The "reference rate" or, as applicable,
the prime rate, is a rate set by BankAmerica based upon various factors
including BankAmerica'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.) Any change in the reference rate or prime rate
announced by BankAmerica shall take effect at the opening of business on
the day specified in the public announcement of such change.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Borrower's Designated Account" has the meaning set forth in
Section 2.02(a).
"Borrowing" means a borrowing consisting of Revolving Credit
Advances of the same Type made on the same day by the Lenders.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City or San Francisco
and, if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in the London interbank
market.
"Capitalized Leases" has the meaning set forth in the definition
of "Debt."
"Cash Equivalents" means: (a) direct obligations of the
Government of the United States or any agency or instrumentality thereof
or obligations unconditionally guaranteed by the full faith and credit
of the Government of the United States, (b) money market funds with
assets in excess of $1,000,000,000, (c) certificates of deposit ("CDs"),
bankers acceptances, eurodollar CDs or Yankee CDs with (i) U.S.
commercial banks with capital of at least $200,000,000 and a senior
long-term dollar denominated debt rating of at least "A" by Moody's and
S&P or (ii) foreign commercial banks with assets of at least
$1,000,000,000 and a Thompson Bankwatch rating of at least TBW-1, (d)
eurodollar time deposits with the Nassau or Cayman offshore branches of
U.S. commercial banks with capital of at least $200,000,000 and a senior
long-term dollar denominated debt rating of at least "A" by Moody's and
S&P, (e) commercial paper rated at least "P2" by Moody's and "A2" by
S&P, (f) medium term, fixed or floating rate notes issued by U.S.
corporations in offerings of at least $100,000,000 with a maximum tenor
of five years and a senior long-term dollar denominated debt rating of
at least "A" by Moody's and S&P, and (g) repurchase agreements, provided
that (w) the market value of the collateral securing any such repurchase
agreement must be equal to at least 102% of the repurchase value plus
accrued interest, (x) the collateral (A) has a maturity of three years
or less, (B) is issued by the Government of the United States or any
agency or instrumentality thereof or U.S. commercial banks with capital
of at least $200,000,000 and a senior long-term dollar denominated debt
rating of at least "A" by Moody's and S&P and (C) has pricing
information that is available on the
<PAGE> 8
4
Bloomberg Reporting Service, (y) must be executed with primary dealers
listed by the New York Federal Reserve Board and rated at least "P1" by
Moody's and "A1" by S&P, and (z) such collateral must be delivered to
the Borrower's custodian.
"Co-Agents" means ABN AMRO Bank N.V., Los Angeles International
Branch, The Bank of New York, Barclays Bank PLC, Bank of
Tokyo-Mitsubishi Trust Company, Banque Nationale de Paris, The Chase
Manhattan Bank, Fleet National Bank, The Morgan Guaranty Trust Company
of New York, and Societe Generale, Los Angeles Branch.
"Commitment" means a Revolving Credit Commitment or a Letter of
Credit Commitment.
"Compliance Certificate" means a certificate from a Responsible
Officer of the Borrower, in the form of Exhibit E hereto, setting forth
in reasonable detail the calculations necessary to demonstrate pro forma
or actual, as applicable, compliance with Section 5.03 and duly
certifying as to the truth and accuracy of such information.
"Confidential Information" means information that the Borrower
furnishes to any Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to any Agent or such Lender from a source other than the
Borrower.
"Consenting Lenders" has the meaning specified in Section 2.17.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert," "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Convertible Subordinated Debt Securities" means the 5-3/4%
Convertible Subordinated Debentures due February 24, 2012 issued by the
Borrower, as amended, supplemented or otherwise modified from time to
time, to the extent permitted in accordance with the Loan Documents.
"Convertible Subordinated Debt Securities Indenture" means the
Indenture dated as of February 25, 1997, between the Borrower and
Wilmington Trust Company, as Trustee for the holders of the Convertible
Subordinated Debt Securities issued pursuant thereto.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money (including, without
limitation, the Convertible Subordinated Debt Securities, indebtedness
incurred in connection with securitizations or sale and leaseback
transactions), (b) all payment obligations, contingent or otherwise, of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all payment
obligations, contingent or otherwise, of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all payment
obligations, contingent or otherwise, of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
payment obligations, contingent or otherwise, of such Person as lessee
under leases that have been or should be, in accordance with GAAP,
recorded as capital leases ("Capitalized Leases"), (f) all payment
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
payment obligations, contingent or otherwise, of such Person in respect
of Hedge Agreements, (h) all payment obligations, contingent or
otherwise, of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of capital stock or other
ownership or profit interest in such Person or any other Person or any
warrants, rights or options to acquire such capital stock, valued, in
the case of redeemable preferred stock, at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid dividends,
(i) all Debt of others referred to in clauses (a) through (h) above or
clause (j) below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay
<PAGE> 9
5
or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt (other than an obligation to acquire, purchase or
advance or supply funds for the payment or purchase of such Debt which
constitutes an indirect obligation to provide vendor financing to a
customer), (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder
of such Debt against loss, (3) to supply funds to or in any other manner
invest in the debtor in connection with the Debt guaranteed, or in
effect, guaranteed under such agreement or (4) otherwise to assure a
creditor against loss to the extent of the Debt guaranteed, or in
effect, guaranteed, and (j) all Debt referred to in clauses (a) through
(i) above secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulting Lender" means at any time any Lender with respect to
which a Lender Default is in effect at such time.
"Documentation Agent" shall have the meaning specified in the
recital of parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party, or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"EBITDA" means, for any period, an amount equal to Consolidated
net income (or net loss) of the Borrower and its Restricted Subsidiaries
(determined without giving effect to extraordinary non-cash gains or
losses) plus the sum of (a) Interest Expense, (b) income tax expense,
(c) depreciation expense and (d) amortization expense, in each case of
the Borrower and its Restricted Subsidiaries to the extent deducted in
computing such net income or loss, and in each case determined in
accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) with respect to the Revolving
Credit Facility, (i) a commercial bank organized under the laws of the
United States, or any state thereof, (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, which is acting through a
branch or agency located in the United States; which, in each case
(under clauses (i) and (ii) above) has a combined capital and surplus of
at least two hundred million dollars ($200,000,000); (iii) a Person that
is primarily engaged in the business of commercial banking and that is
(x) a Subsidiary of a Lender, (y) a Subsidiary of a Person of which a
Lender is a Subsidiary, or (z) a Person of which a Lender is a
Subsidiary, (iv) a Lender, or (v) a finance company, financial
institution, fund or any other Person that has a combined capital and
surplus of at least two hundred million dollars ($200,000,000) and is
approved in writing by the Administrative Agent and the Borrower (which
approval shall not be unreasonably withheld or delayed) and (b) with
respect to the Letter of Credit Subfacility, a Person that is approved
by the Administrative Agent and the Borrower; provided, however, that
neither the Borrower nor an Affiliate of the Borrower shall qualify as
an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any violation of an
Environmental Law, violation of an Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health,
safety or the environment, including, without limitation, (a) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any
<PAGE> 10
6
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance that has the
force or effect of law relating to pollution or protection of the
environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA are met with respect to a contributing sponsor,
as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c)
of ERISA is reasonably expected to occur with respect to such Plan
within the following 30 days but only if the PBGC has not waived the
requirements of Section 4043(b) of ERISA with respect to a contributing
sponsor; (b) the application for a minimum funding waiver with respect
to a Plan; (c) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan in a distress termination
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of the Borrower or any
ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for the imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the FRB, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum (rounded upward to the nearest 1/100th of 1%)
equal to the rate for deposits in Dollars for the period commencing on
the first day of such Interest Period and ending on the last day of such
Interest Period which appears on Telerate Page 3750 as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period. If at least two rates appear on such Telerate Page for such
Interest Period, the "Eurodollar Base Rate" shall be the arithmetic mean
of such rates. If the "Eurodollar Base Rate" cannot be determined in
accordance with the immediately preceding sentences with respect to any
Interest Period, the "Eurodollar Base Rate" with respect to each day
during such Interest
<PAGE> 11
7
Period shall be determined by reference to such other publicly available
service for displaying eurodollar rates as may be agreed upon by the
Administrative Agent and the Borrower or, in the absence of such
agreement, the "Eurodollar Rate" shall instead be the rate per annum
equal to the arithmetic mean (rounded upwards to the nearest 1/100th of
1%) of the respective rates notified to the Administrative Agent by each
of the Reference Lenders as the rate at which such Reference Lender is
offered Dollar deposits at or about 11:00 A.M., San Francisco time, two
Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurodollar Loans are then
being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to
the amount of its Eurodollar Rate Advance to be outstanding during such
Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for any
Interest Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Debt" means Debt of the Borrower and its Subsidiaries
outstanding immediately before the effectiveness of this Agreement.
"Extension Date" has the meaning specified in Section 2.17.
"Facility" means the Revolving Credit Facility or the Letter of
Credit Subfacility.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") for such day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such
rate is not yet published in H.15(519), the rate for such day will be
the rate set forth in the daily statistical release designated as the
Composite 3:30 P.M. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 P.M. Quotation") for
such day under the caption "Federal Funds Effective Rate." If on any
relevant day the appropriate rate for such day is not yet published in
either H.15(519) or the Composite 3:30 P.M. Quotations, the rate for
such day will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 A.M. (New
York City time) on that day by each of three leading brokers of Federal
funds transactions in New York City selected by the Administrative
Agent.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"Further Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (excluding net income taxes and franchise taxes), and
all liabilities with respect thereto, imposed by any jurisdiction on
account of amounts payable or paid pursuant to Section 2.14.
"GAAP" has the meaning specified in Section 1.03.
<PAGE> 12
8
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Indemnified Liabilities" has the meaning specified in Section
8.04.
"Information Memorandum" means the information memorandum dated
January 1998 used by the Syndication Agents in connection with the
syndication of the Commitments.
"Initial Issuing Bank" has the meaning specified in the recital
of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Expense" means, for any period, the excess, if any, of
(i) all interest expense determined on a Consolidated basis for the
Borrower and its Restricted Subsidiaries determined for such period in
accordance with GAAP, including in any event, without duplication or
limitation, amortization of debt discount, commitment fees and letter of
credit fees, interest and commitment fees paid in connection with a
securitization, distributions paid or accrued in respect of the Trust
Convertible Preferred Securities determined in accordance with GAAP,
over (ii) cash interest income determined on a Consolidated basis for
the Borrower and its Restricted Subsidiaries determined for such period
in accordance with GAAP.
"Interest Period" means, (a) as to any Eurodollar Rate Advance,
the period commencing on the date of such Eurodollar Rate Advance or on
the date of Conversion of any Base Rate Advance into such Eurodollar
Rate Advance, and ending on the date one, two, three or six months
thereafter (and any other period that is 12 months or less and is
consented to by the Required Lenders in the given instance) as selected
by the Borrower in its Notice of Borrowing or notice of Conversion and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below;
provided that:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless, in the case of a
Eurodollar Rate Advance, 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 preceding
Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate
Advance 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;
(iii) no Interest Period shall end after the Termination
Date; and
(iv) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration.
<PAGE> 13
9
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" in any Person, means any loan or advance to such
Person, any purchase or other acquisition of all or substantially all of
the assets of such Person or a business unit of such Person or any
capital stock or other ownership or profit interest, warrants, rights,
options, obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (i) or (j) of
the definition of "Debt" in respect of such Person.
"Issuing Banks" means the Initial Issuing Bank and each other
Lender that is a commercial bank, acting through a domestic branch, as
issuer of a Letter of Credit, so long as and for only so long as, in
each case, each such Lender expressly agrees to perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as an Issuing Bank and
notifies the Administrative Agent of its Applicable Lending Office and
the amount of its Letter of Credit Commitment (which information shall
be recorded by the Administrative Agent in the Register).
"L/C Amendment Application" means an application form for
amendment of outstanding Standby Letters of Credit and Trade Letters of
Credit as shall at any time be in use at the Issuing Bank, as the
Issuing Bank shall request.
"L/C Cash Collateral Account" means a cash collateral account to
be established and maintained by the Administrative Agent, over which
the Administrative Agent shall have sole dominion and control, upon
terms as may be satisfactory to the Administrative Agent.
"L/C Related Documents" has the meaning specified in Section
2.06(b)(ii)(A).
"Lender Default" means (i) the failure of any Lender to make any
Advance it is obligated to make under the terms of this Agreement, or
(ii) the appointment of a receiver or conservator with respect to such
Lender at the direction or request of any regulatory agency or
authority.
"Lender Party" means any Lender and any Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"Letter of Credit Advance" means an advance made by any Issuing
Bank or any Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Subfacility" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Issuing Banks'
Letter of Credit Commitments at such time and (b) $400,000,000, as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"Letter of Credit Commitment" means, with respect to any Issuing
Bank at any time, the amount set forth opposite such Issuing Bank's name
on Schedule I hereto under the caption "Letter of Credit Commitment" or,
if such Issuing Bank has entered into one or more Assignments and
Acceptances or if a Lender has otherwise become an Issuing Bank, set
forth for such Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Issuing Bank's
"Letter of Credit Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in Section 2.01(b).
<PAGE> 14
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"Leverage Ratio" means, at any time of determination, the ratio
of (a) Total Debt as at the date of the most recent financial statements
delivered to the Lender Parties pursuant to Section 5.01(i) to (b)
EBITDA for the four quarter period ended on such date.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means this Agreement, the Notes, if any, and
each Letter of Credit Agreement, in each case as amended, supplemented
or otherwise modified from time to time.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance or properties of the Borrower or the Borrower and its
Restricted Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the business, condition (financial or otherwise), operations,
performance or properties of the Borrower or the Borrower and its
Restricted Subsidiaries taken as a whole, (b) the legality, validity,
binding effect, or enforceability of this Agreement or any Note, if any,
or (c) the ability of the Borrower to perform its obligations in any
material respect under any Loan Document.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and at least one Person other than
the Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Non-Consenting Lenders" has the meaning specified in Section
2.17.
"Note" has the meaning specified in Section 2.19.
"Notice of Borrowing" has the meaning specified in Section 2.02.
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Debt" means Debt consisting of (a) surety bonds and
standby letters of credit to the extent issued in connection with the
Borrower's competitive bidding for commercial business (including
reimbursement obligations in respect thereof); (b) trade letters of
credit (including reimbursement obligations in respect thereof) and
bankers' acceptances incurred in the ordinary course of business; (c)
guaranty obligations or letters of credit to the extent incurred in
connection with the performance by the Borrower or any of its Restricted
Subsidiaries under commercial vendor contracts to which the Borrower or
any of its Restricted Subsidiaries are parties; (d) guaranty obligations
and letters of credit issued in respect of indebtedness of customers for
borrowed money but only to extent that the proceeds of such customers'
indebtedness are used to finance (i) a telecommunications project for
which the Borrower or a Restricted Subsidiary is a primary contractor,
(ii) a wireless infrastructure or (iii) a supplier of handsets; (e)
guaranty
<PAGE> 15
11
obligations to the extent incurred in connection with the sale, transfer
or other disposition of Vendor Loans, provided that such guaranty and
any agreement entered into in connection therewith or instrument issued
in connection therewith provides that concurrently upon payment by the
Borrower of such guaranteed obligations, such Vendor Loans shall be
returned or assigned to the Borrower, as guarantor, and (f) Debt
consisting of payment obligations for licenses granted by the Federal
Communications Commission or other governmental agencies, in which
licenses the Borrower or any of its Restricted Subsidiaries have an
interest.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business securing obligations
that (i) are not overdue for a period of more than 90 days or (ii) that
are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property or asset subject to such lien, and for which adequate reserves
(in the good faith judgment of the Borrower) have been established; (c)
pledges or deposits to secure obligations under workers' compensation
laws, unemployment insurance laws or similar legislation or to secure
public or statutory obligations; (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes; (e) good faith
deposits in connection with bids, tenders, contracts or leases to which
such Person is a party; (f) deposits or United States government bonds
to secure surety or appeal bonds; (g) deposits as security for import
duties or for the payment of rent, in each case in the ordinary course
of business; (h) Liens in favor of issuers of surety bonds or letters of
credit issued pursuant to the request of and for the account of such
issuers in the ordinary course of business; (i) Liens securing payments
for licenses granted by the Federal Communications Commission or other
governmental agencies, in which licenses the Borrower or any of its
Restricted Subsidiaries have rights; (j) Liens securing rights to
payments or otherwise and in respect of any obligations of the
applicable counterparty arising under or in connection with Hedge
Agreements permitted hereunder; (k) bankers' Liens and similar Liens
(including set-off rights) in respect of bank deposits; and (l) Liens on
insurance proceeds in favor of insurance companies with respect to the
financing of premiums.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Preferred Share Purchase Rights Plan" means the Borrower's
Preferred Share Purchase Rights Plan dated as of September 27, 1995.
"Pro Rata Share" means, as to any Lender at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Lender's Revolving Credit Commitment
divided by the aggregate Revolving Credit Commitments, or, if the
Revolving Credit Commitments have expired or been terminated, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of the outstanding amount of such Lender's
Advances divided by the aggregate outstanding amount of all Advances.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin and the Applicable Percentage shall be
determined by reference to the available rating; (b) if neither S&P nor
Moody's shall have in effect a Public Debt Rating, the Applicable Margin
and the Applicable Percentage will be set in accordance with Level 5
under the definition of "Applicable Margin" or "Applicable Percentage,"
as the case may be; (c) if the ratings established by S&P and Moody's
shall fall within levels that are one level apart, the Applicable Margin
and the Applicable Percentage shall be based upon the higher rating; (d)
if the ratings established by S&P and Moody's shall fall within levels
that are more than one level apart, the Applicable Margin and the
Applicable
<PAGE> 16
11
Percentage shall be set at the level that is one level below the level
for the higher of the two ratings; (e) if any rating established by S&P
or Moody's shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating
agency making such change; and (f) if S&P or Moody's shall change the
basis on which ratings are established, each reference to the Public
Debt Rating announced by S&P or Moody's, as the case may be, shall refer
to the then equivalent rating by S&P or Moody's, as the case may be.
"QPE" means QUALCOMM Personal Electronics, a joint venture owned
by certain Subsidiaries of the Borrower and Sony Electronics.
"Reference Lenders" means BankAmerica and Citibank or each such
other Lender Party as may be agreed by the Borrower and the
Administrative Agent from time to time.
"Register" has the meaning specified in Section 8.07(d).
"Related Documents" means the Preferred Share Purchase Rights
Plan, the Convertible Subordinated Debt Securities, the Convertible
Subordinated Debt Securities Indenture, the Trust Convertible Preferred
Securities and the Amended and Restated Declaration of Trust.
"Request for Letter of Credit Issuance" has the meaning specified
in Section 2.03(a).
"Required Lenders" means at any time (a) for all purposes
hereunder except Section 2.08(b), Lenders owed at least a majority in
interest of the then aggregate unpaid principal amount of the Advances
owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least a majority in interest of the Commitments and
(b) solely for purposes of Section 2.08(b) of this Agreement, Lenders
holding at least 66_% of the then aggregate unpaid principal amount of
the Advances owing to such Lenders, or, if no such principal amount is
then outstanding, Lenders holding at least 66_% of the Commitments.
"Responsible Officer" means the chief financial officer,
treasurer or controller of the Borrower.
"Restricted Subsidiary" means, as of the Effective Date, the
Subsidiaries of the Borrower listed on Schedule 4.01(b) hereto and
thereafter all other Subsidiaries of the Borrower other than the
Unrestricted Subsidiaries, provided, however, that no Restricted
Subsidiary shall be a Subsidiary of an Unrestricted Subsidiary.
"Revolving Credit Advance" has the meaning specified in Section
2.01(a).
"Revolving Credit Commitment" means, with respect to any Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or, if
such Lender has entered into one or more Assignments and Acceptances,
set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Lender's
"Revolving Credit Commitment," as such amount may be reduced at or prior
to such time pursuant to Section 2.05 or increased pursuant to Section
2.17.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"SEC" means the Securities and Exchange Commission.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and no Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any
<PAGE> 17
13
ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Special Event of Default" means the occurrence or continuance of
any of the following events: (i) any proceeding shall be instituted by
or against the QUALCOMM Financial Trust I seeking a voluntary or
involuntary liquidation, termination, winding-up or dissolution of the
QUALCOMM Financial Trust I or the Borrower shall take any corporate
action to authorize any of the actions set forth above; or (ii) any
event of default under the Convertible Subordinated Debt Securities
Indenture shall have occurred or be continuing.
"Standby Letter of Credit" means any Letter of Credit issued
hereunder, other than a Trade Letter of Credit.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such
trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Syndication Agents" has the meaning specified in the recital of
parties to this Agreement.
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Lender Party and each Agent, respectively, taxes imposed on
or measured by its overall net income by the jurisdiction (or any
political subdivision thereof) under the laws of which such Lender Party
or such Agent, as the case may be, is organized and, in the case of each
Lender Party, where an Applicable Lending Office is maintained.
"Termination Date" means the earlier of (a) the date of
termination in whole of the aggregate Commitments pursuant to Section
2.05 or 6.01 and (b) the third Anniversary Date or, if extended pursuant
to Section 2.17, the date that is one year after the Termination Date in
effect immediately before giving effect to such extension; provided,
however, that the Termination Date for any Lender Party that is a
Non-Consenting Lender to any requested extension pursuant to Section
2.17 shall be the Termination Date in effect immediately prior to giving
effect to such extension for all purposes of this Agreement.
"Total Capitalization" of the Borrower and its Restricted
Subsidiaries means, at any time, the sum of (i) Total Debt, (ii) the
aggregate principal amount (including, without limitation, capitalized
or paid-in-kind interest) of the Trust Convertible Preferred Securities
or similar instruments to the extent not included in Total Debt, and
(iii) the Consolidated shareholders' equity (including preferred stock)
in each case of the Borrower and its Restricted Subsidiaries determined
in accordance with GAAP.
"Total Debt" means, at any time of determination, (a) all Debt of
the Borrower and its Restricted Subsidiaries at such time less (b) the
sum of (i) so long as no Special Event of Default shall have occurred
and be continuing at such time, the Trust Convertible Preferred
Securities outstanding at such time, (ii) cash and Cash Equivalents to
the extent beneficially owned by the Borrower or any of its Restricted
Subsidiaries and held in U.S. deposit or investment accounts free and
clear of any Liens at such time, (iii) cash and Cash Equivalents to the
extent beneficially owned by the Borrower or any of its Restricted
Subsidiaries and held in U.S. deposit or investment accounts subject to
a Lien or Liens at such time less the excess of (x) such cash and Cash
Equivalents over (y) the aggregate amount of Debt of the Borrower and
any of its Restricted Subsidiaries which such cash and Cash Equivalents
were pledged to secure, and (iv) to the extent otherwise included in the
definition of "Debt," Debt consisting of obligations of the Borrower and
its Restricted Subsidiaries to make capital contributions to a Person
other than the Borrower and its Restricted Subsidiaries, but only to the
extent permitted by Section 5.02(g) of this Agreement and solely in
connection with such Investments (other than any arrangement pursuant to
which the investor incurs Debt of the types referred to
<PAGE> 18
14
in clause (i) or (j) of the definition of "Debt" in respect of such
Person), in each case, calculated on a Consolidated basis and determined
in accordance with GAAP.
"Total Tangible Assets" means total assets minus goodwill and
intangibles, in each case of the Borrower and its Restricted
Subsidiaries determined on a Consolidated basis in accordance with GAAP.
"Trade Letter of Credit" means any Letter of Credit that is
issued hereunder for the benefit of a supplier of inventory to the
Borrower or any of its Subsidiaries to effect payment for such
inventory, conditions to drawing under which include the presentation to
the Issuing Bank that issued such Letter of Credit of negotiable bills
of lading, invoices and related documents.
"Triggering Event" has the meaning specified in Section 2.21.
"Trust Convertible Preferred Securities" means the 5-3/4% Trust
Convertible Preferred Securities, guaranteed by the Borrower and
convertible into common stock of the Borrower, which represent preferred
undivided beneficial interests in the assets of "QUALCOMM Financial
Trust I," a statutory business trust created under the laws of Delaware,
and the shares of common stock, par value $10,000.00 per share of the
Borrower, issuable upon conversion of the 5-3/4% Trust Convertible
Preferred Securities, as amended, supplemented or otherwise modified
from time to time, to the extent permitted in accordance with the Loan
Documents.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"Unrestricted Subsidiaries" means such Subsidiaries of the
Borrower as the Borrower shall designate as an Unrestricted Subsidiary
in writing to the Agents and the Lenders in accordance with the terms of
Section 5.02(j) and any Subsidiaries thereof; provided, however, that no
such Subsidiary shall own or hold any licenses, patents, trademarks or
intellectual property other than such as may be necessary to the conduct
of the business of such Subsidiary, and provided further that any such
items as may be shared with the Borrower or any Restricted Subsidiary
shall be owned and held by the Borrower or such Restricted Subsidiary.
"Unused Revolving Credit Commitment" means, with respect to any
Lender at any time,
(a) such Lender's Revolving Credit Commitment at such
time minus
(b) the sum of (i) the aggregate principal amount of all
Revolving Credit Advances and Letter of Credit Advances made by
such Lender, in each case in its capacity as a Lender, and
outstanding at such time, plus (ii) such Lender's Pro Rata Share
of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time and (B) the aggregate principal amount
of all Letter of Credit Advances made by the Issuing Banks
pursuant to Section 2.03(c), in each case in their capacity as
Issuing Banks, and outstanding at such time other than any such
Letter of Credit Advance which, at or prior to such time, has
been assigned in part to such Lender pursuant to Section
2.03(c).
"Vendor Loans" means loans or other financing, directly or
indirectly, made or provided by the Borrower or any of its Restricted
Subsidiaries to its customers in the telecommunications industry,
provided that each such loan or other financing shall be evidenced by a
written agreement, note or other instrument issued in connection
therewith.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
<PAGE> 19
15
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding."
SECTION 1.03. Accounting Terms. (a) 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 generally accepted accounting principles consistent
with those applied in the preparation of financial statements referred to in
Section 4.01(f) ("GAAP"). If GAAP changes during the term of this Agreement such
that any covenants contained herein would then be calculated in a different
manner or with different components, the Borrower, the Lender Parties and the
Agents agree to negotiate in good faith to amend this Agreement in such respects
as are necessary to conform those covenants as criteria for evaluating the
Borrower's financial condition to substantially the same criteria as were
effective prior to such change in GAAP; provided, however, that, until the
Borrower, the Lender Parties and the Administrative Agent have so amended this
Agreement, all such covenants shall be calculated in accordance with GAAP as in
effect immediately prior to such change.
(b) Hedge Agreements shall be valued (i) in good faith on a basis
consistently applied by the Board of Directors of the Borrower, (ii) at the
greater of (x) termination value, which is the amount, if any, that would be
payable to a counterparty in respect of agreement value as though such Hedge
Agreement were terminated on such date, calculated as provided in the
International Swap Dealers Association Inc. Code of Standard Working Assumptions
and Provisions for Swaps, 1992 Edition, and (y) mark-to-market, where the
unrealized gain or loss on such agreements is calculated as the amount by which
the present value of the future cash flows to be received exceeds (or is less
than) the present value of the future cash flows to be paid pursuant to such
agreements, and (iii) for purposes of Section 5.02(d) and 6.01(d), on a net
portfolio basis.
(c) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Borrower.
SECTION 1.04. Other Interpretive Provisions. (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof," "herein," "hereunder" and similar words refer to
this Agreement as a whole and not to any particular provision of this Agreement;
and subsection, Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) 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."
(iv) "issue" means, with respect to any Letter of Credit, to
issue or to extend the expiry of, or to renew or increase the amount of,
such Letter of Credit; and the terms "issued," "issuing" and "issuance"
have corresponding meanings.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
<PAGE> 20
16
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided,
any reference to any action of any Agent or the Lender Parties by way of
consent, approval or waiver shall be deemed modified by the phrase "in its/their
sole discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agents, the Borrower
and the other parties, and are the products of all parties. Accordingly, they
shall not construed against the Lender Parties or the Agents merely because of
the Agents' or Lender Parties' involvement in their preparation.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) Revolving Credit Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "Revolving Credit Advance") to the Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount for each such Advance not to exceed such
Lender's Unused Revolving Credit Commitment at such time. Each Borrowing shall
be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof and shall consist of Advances of the same Type made on the same
day by the Lenders ratably according to their respective Revolving Credit
Commitments. Within the limits of each Lender's Revolving Credit Commitment, the
Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.10
and reborrow under this Section 2.01(a).
(b) Letters of Credit. The Initial Issuing Bank and each Issuing Bank
severally agrees, on the terms and conditions hereinafter set forth and subject
to such other terms as such Issuing Bank may separately and mutually agree with
the Borrower, to issue letters of credit (the "Letters of Credit") for the
account of the Borrower from time to time on any Business Day during the period
from the Effective Date until 30 days before the Termination Date (i) in an
aggregate Available Amount for all Letters of Credit issued by such Issuing Bank
not to exceed at any time such Issuing Bank's Letter of Credit Commitment at
such time or such greater amount as such Issuing Bank and the Borrower shall
mutually agree and (ii) in an Available Amount for each such Letter of Credit
not to exceed the lesser of (x) the Letter of Credit Subfacility and (y) the
Unused Revolving Credit Commitments at such time. No Letter of Credit shall have
an expiration date (including all rights of the Borrower or the beneficiary to
require renewal) later than 15 days before the Termination Date. Within the
limits of the Letter of Credit Subfacility, and subject to the limits referred
to above, the Borrower may request the issuance of Letters of Credit under this
Section 2.01(b), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Sections 2.03(c) and 2.10 and request the issuance of
additional Letters of Credit under this Section 2.01(b). Each Letter of Credit
issued pursuant to this Section 2.01(b) shall, effective upon its issuance and
without further action, be issued on behalf of all Lenders (including the
applicable Issuing Bank) according to their respective Pro Rata Shares. Each
Lender shall, to the extent of its Pro Rata Share, be deemed irrevocably to have
participated in the issuance of such Letter of Credit and shall reimburse the
Issuing Bank promptly for Letter of Credit Advances in accordance with Section
2.03.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be
made on notice, given not later than 10:00 A.M. (San Francisco time) on the
third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the first Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Lender prompt notice thereof by telecopier or telex.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed promptly in writing, or telecopier or telex, in substantially the form
of Exhibit B-1 hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing, (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance and (v)
the Borrower's deposit account into which funds for such Advance are to be
deposited (the "Borrower's Designated Account"). Each Lender shall, before 11:00
A.M. (San Francisco time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's
<PAGE> 21
17
Account, in same day funds, such Lender's ratable portion of such Borrowing in
accordance with the respective Commitments under the applicable Facility of such
Lender and the other Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower in
the Borrower's Designated Account selected by the Borrower in the applicable
Notice of Borrowing; provided, however, that, in the case of any Revolving
Credit Borrowing, the Administrative Agent shall first make a portion of such
funds equal to the aggregate principal amount of any Letter of Credit Advances
made by any Issuing Bank and by any other Lender and outstanding on the date of
such Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and
as of such date, available to such Issuing Bank, and such other Lenders for
repayment of such Letters of Credit Advances.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for the initial
Borrowing hereunder (if the initial Borrowing occurs on, or within 3 Business
Days after, the Effective Date) or for any Borrowing if the aggregate amount of
such Borrowing is less than $5,000,000 or if the obligation of the Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08
or 2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of
more than 10 separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any actual loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Advance as part of such
Borrowing for purposes of this Agreement and the Borrower's obligation to make
repayment in respect thereof shall terminate.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice given not later than 11:00 A.M. (San Francisco time) on the
third Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank with a copy to the Administrative
Agent. Each notice of issuance of a Letter of Credit (a "Request for Letter of
Credit Issuance") shall be by telephone, confirmed promptly in writing, or telex
or telecopier, in substantially the form of Exhibit B-2 hereto, specifying
therein the requested (A) date of such issuance (which shall be a Business Day),
(B) Available Amount of such Letter of Credit, (C) expiration date of such
Letter of Credit, (D) name and address of the beneficiary of such Letter of
Credit, and (E) form of such Letter of Credit, and shall be accompanied by such
application and agreement for letter of credit as such Issuing Bank may specify
to the Borrower for use in connection with such requested Letter of Credit (a
"Letter of Credit Agreement"). If (x) the requested form of such Letter of
Credit is acceptable to such Issuing Bank in its sole discretion and (y) it has
not received written notice from an Agent or the Required Lenders that the
conditions to issuing such Letter of Credit
<PAGE> 22
18
have not been satisfied or duly waived, such Issuing Bank will, upon fulfillment
of the applicable conditions set forth in Article III, make such Letter of
Credit available to the Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to the
Administrative Agent on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
preceding month and drawings during such month under all Letters of Credit
issued by such Issuing Bank and (B) to the Administrative Agent on the first
Business Day of each calendar quarter a written report setting forth the average
daily aggregate Available Amount during the preceding calendar quarter of all
Letters of Credit issued by such Issuing Bank. The Administrative Agent shall,
upon receipt of the written reports specified in clauses (A) and (B) above,
provide a copy of such reports to each Lender by telex or telecopier.
(c) Drawing and Reimbursement. The payment by any Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon written demand
by any Issuing Bank with an outstanding Letter of Credit Advance, with a copy of
such demand to the Administrative Agent, each Lender shall purchase from such
Issuing Bank, and such Issuing Bank shall sell and assign to each such Lender,
such Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of
the date of such purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of such Issuing Bank,
by deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to such Issuing Bank. The
Borrower hereby agrees to each such sale and assignment. Each Lender agrees to
purchase its Pro Rata Share of an outstanding Letter of Credit Advance on (i)
the Business Day on which demand therefor is made by the Issuing Bank, provided
notice of such demand is given not later than 11:00 A.M. (San Francisco time) on
such Business Day or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by any
Issuing Bank to any other Lender of a portion of a Letter of Credit Advance,
such Issuing Bank represents and warrants to such other Lender that such Issuing
Bank is the legal and beneficial owner of such interest being assigned by it,
free and clear of any liens, but makes no other representation or warranty and
assumes no responsibility with respect to such Letter of Credit Advance, the
Loan Documents or any Loan Party. If and to the extent that any Lender shall not
have so made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Lender agrees to pay to the Administrative Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by such Issuing Bank until the date such amount is paid
to the Administrative Agent, at the Federal Funds Rate for its account or the
account of such Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of such Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of any Lender
to make the Letter of Credit Advance to be made by it on the date specified in
Section 2.03(c) shall not relieve any other Lender of its obligation hereunder
to make its Letter of Credit Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
(e) From time to time while a Letter of Credit is outstanding and prior
to the Termination Date, each Issuing Bank will, upon the written request of the
Borrower received by such Issuing Bank (with a copy sent by the Borrower to the
Administrative Agent) at least three days (or such shorter time as such Issuing
Bank may agree in a particular instance in its sole discretion) prior to the
proposed date of amendment, amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall be made by facsimile,
confirmed promptly in an original writing, made in the form of an L/C Amendment
Application and shall specify in form and detail satisfactory to the Issuing
Bank: (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of the Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as the Issuing
Bank may require. No Issuing Bank shall be under any obligation to amend any
Letter of Credit if: (A) such Issuing Bank would have no obligation at such time
to issue such Letter of Credit in its amended form under the terms
<PAGE> 23
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of this Agreement; or (B) the beneficiary of any such Letter of Credit does not
accept the proposed amendment to the Letter of Credit. The Administrative Agent
will promptly notify the Lender Parties of the receipt by it of any L/C
Amendment Application.
(f) Each Issuing Bank and the Lender Parties agree that, while a Letter
of Credit is outstanding and prior to the Termination Date, at the option of the
Borrower and upon the written request of the Borrower received by such Issuing
Bank (with a copy sent by the Borrower to the Administrative Agent) at least
three days (or such shorter time as such Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed date of notification of
renewal, such Issuing Bank shall be entitled to authorize the automatic renewal
of any Letter of Credit issued by it. Each such request for renewal of a Letter
of Credit shall be made by facsimile, confirmed promptly in an original writing,
in the form of an L/C Amendment Application, and shall specify in form and
detail satisfactory to such Issuing Bank: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of the Letter of
Credit (which shall be a Business Day); (iii) the revised expiry date of the
Letter of Credit; and (iv) such other matters as such Issuing Bank may require.
No Issuing Bank shall be under any obligation so to renew any Letter of Credit
if: (A) the Issuing Bank would have no obligation at such time to issue or amend
such Letter of Credit in its renewed form under the terms of this Agreement; or
(B) the beneficiary of any such Letter of Credit does not accept the proposed
renewal of such Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the beneficiary thereof
receives notice from the Issuing Bank that such Letter of Credit shall not be
renewed, and if at the time of renewal the Issuing Bank would be entitled to
authorize the automatic renewal of such Letter of Credit in accordance with this
clause (f) upon the request of the Borrower but the Issuing Bank shall not have
received any L/C Amendment Application from the Borrower with respect to such
renewal or other written direction by the Borrower with respect thereto, such
Issuing Bank shall nonetheless be permitted to allow such Letter of Credit to
renew, and the Borrower and the Lender Parties hereby authorize such renewal,
and, accordingly, such Issuing Bank shall be deemed to have received an L/C
Amendment Application from the Borrower requesting such renewal.
(g) The Issuing Bank may, at its election (or as required by the
Administrative Agent at the direction of the Required Lenders), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the Termination Date.
(h) The Credit Agreement shall control in the event of any conflict with
any L/C Related Document (other than any Letter of Credit).
SECTION 2.04. Fees. (a) Commitment Fees. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a commitment fee,
from the Effective Date in the case of each Initial Lender and from the later of
the Effective Date and the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date at a rate per annum equal to the Applicable
Percentage in effect from time to time on the average daily Unused Revolving
Credit Commitment of such Lender, payable in arrears quarterly on the last day
of each March, June, September and December, commencing March 31, 1998, and on
the Termination Date.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Administrative Agent for the account of each Lender a commission, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing March 31, 1998, and on the Termination Date, on such Lender's Pro
Rata Share of the average daily aggregate Available Amount during such quarter
at a rate per annum equal to, (x) in the case of Standby Letters of Credit, the
Applicable Margin for Eurodollar Rate Advances in effect from time to time, and
(y) in the case of Trade Letters of Credit, 50% of the Applicable Margin for
Eurodollar Rate Advances in effect from time to time.
(ii) Issuing Banks' Fees. The Borrower shall pay to each Issuing Bank,
for its own account, such commissions, issuance fees, fronting fees, transfer
fees and other fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrower and such Issuing Bank
shall agree. By side letter of even date herewith, BankAmerica and the Borrower
have agreed to a fee schedule with respect to issuances of Letters of Credit and
pursuant to which such Agent has agreed to act as an Issuing Bank.
<PAGE> 24
20
(c) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
The Borrower shall have the right, upon at least five Business Days' notice to
the Administrative Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders; provided that each
partial reduction (i) shall be in the aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and (ii) shall be made ratably
among the Lenders in accordance with their Commitments with respect to such
Facility. Any Commitments terminated under this Section 2.05 may not be
reinstated.
(b) The Letter of Credit Subfacility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Letter of Credit Subfacility
exceeds the Revolving Credit Facility after giving effect to such reduction of
the Revolving Credit Facility.
SECTION 2.06. Repayment. (a) Revolving Credit Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Lenders on the Termination Date (then in effect for such Lenders) the aggregate
principal amount of the Revolving Credit Advances then outstanding.
(b) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of each Issuing Bank and each other Lender
that has made a Letter of Credit Advance on the earlier of demand and the
Termination Date the outstanding principal amount of each Letter of Credit
Advance made by each of them; provided however, that, if the Borrower fails to
repay the outstanding principal amount of each Letter of Credit Advance on
demand, the Borrower shall be deemed to have delivered a Notice of Borrowing on
the Business Day prior to payment by the applicable Issuing Bank of such Letter
of Credit specifying that the aggregate amount of such proposed Borrowing is the
outstanding principal amount of each Letter of Credit Advance and the Type of
Advances comprising such proposed Borrowing is Base Rate Advances, and to be in
compliance with this Section 2.06(b)(i), so long as no Default has occurred or
is continuing or would result therefrom and the Borrower is in compliance with
the terms of this Agreement.
(ii) The obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument
relating to any Letter of Credit shall be unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances (it being understood that any such payment by
the Borrower is without prejudice to, and does not constitute a waiver
of, any rights the Borrower might have or might acquire as a result of
the payment by any Issuing Bank of any draft or the reimbursement by the
Borrower thereof):
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or
any other agreement or instrument relating thereto (all of the
foregoing being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations of the
Borrower in respect of any L/C Related Document or any other
amendment or waiver of or any consent to departure from all or
any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any
Persons for whom any such beneficiary or any such transferee may
be acting), any Issuing Bank or any other Person, whether in
connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
<PAGE> 25
21
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent
to departure from any guaranty, for all or any of the obligations
of the Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including,
without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the
Borrower or a guarantor.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (x)
the Base Rate in effect from time to time plus (y) the Applicable Margin
in effect from time to time, payable in arrears quarterly on the last
day of each March, June, September and December during such periods.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Advance plus (y) the
Applicable Margin in effect from time to time, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted
or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of
an Event of Default under Section 6.01(a), the Borrower shall pay interest on
(i) the unpaid principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii)
to the fullest extent permitted by law, the amount of any interest, fee or other
amount payable hereunder that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid on
Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Lender agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurodollar Rate when necessary to determine the
Eurodollar Rate. If any one or more of the Reference Lenders shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Lenders. The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.07(a)(i) or (ii), and the rate,
if any, furnished by each Reference Lender for the purpose of determining the
interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to each
of such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
<PAGE> 26
22
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.09. Optional Conversion of Advances. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than 10:00 A.M. (San Francisco time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of Eurodollar
Rate Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b) and no Conversion of any Advances
shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of Conversion shall
be irrevocable and binding on the Borrower.
SECTION 2.10. Optional Prepayments. The Borrower may, upon at
least three Business Days' notice in the case of Eurodollar Rate Advances and
one Business Day's notice in the case of Base Rate Advances, in each case to the
Administrative Agent by no later than 10:00 A.M. (San Francisco time) stating
the proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amount of
the Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(d). Each such prepayment
shall be applied ratably to the principal installments thereof.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction (after the date hereof) of or any change (after the date hereof) in
or in the interpretation of any law or regulation or (ii) the compliance
(required after the date hereof) with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining Letters of Credit (excluding for purposes of
this Section 2.11 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.14 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender Party
is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, promptly upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender Party additional
amounts sufficient to compensate such Lender Party for such increased cost;
provided, however, that a Lender Party claiming additional amounts under this
Section 2.11(a) agrees to use reasonable efforts (consistent with its internal
policy and legal regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue and would
not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline enacted or promulgated after the date hereof or
request after the date hereof from any central bank or other governmental
authority (whether or not having the force of law) affects or would affect the
amount of capital required or expected
<PAGE> 27
23
to be maintained by such Lender Party or any corporation controlling such Lender
Party and that the amount of such capital is increased by or based upon the
existence of such Lender Party's commitment to lend or to issue Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of the Letters of Credit (or similar contingent obligations), then,
promptly upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender Party, from time to time as specified by such Lender
Party, additional amounts sufficient to compensate such Lender Party or such
corporation in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the
existence of such Lender Party's commitment to lend or to issue Letters of
Credit hereunder.
SECTION 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender Party shall notify the Administrative Agent that
the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender Party or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances hereunder, (i) each
Eurodollar Rate Advance will automatically, upon such demand, Convert into a
Base Rate Advance and (ii) the obligation of the Lender Parties to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lender Parties that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower shall
make each payment, without setoff, counterclaim, recoupment or other deduction,
hereunder and under the Notes, if any, not later than 11:00 A.M. (San Francisco
time) on the day when due in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or commitment fees or letter of credit commissions
ratably (other than amounts payable pursuant to Section 2.11, 2.14, 2.17, 2.18,
2.20 or 8.04(d)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender Party to such Lender Party for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes, if any, in respect of the interest assigned thereby to the
Lender Party assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or under
the Note, if any, held by such Lender Party, to charge from time to time against
any or all of the Borrower's accounts with such Lender Party any amount so due.
(c) All computations of interest based on the Base Rate and of fees,
including commitment fees under Section 2.04(a), shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and Letter of Credit commissions shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest, fees or commissions are payable. Each
determination by the Administrative Agent of an interest rate, fee or commission
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes, if any, shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on
<PAGE> 28
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such date and the Administrative Agent may, in reliance upon such assumption,
cause to be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower shall not have so
made such payment in full to the Administrative Agent, each Lender shall repay
to the Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Except as provided in Section 2.14(f),
any and all payments by the Borrower under this Agreement and any other Loan
Document shall be made free and clear of, and without deduction or withholding
for, any Taxes. In addition, the Borrower shall pay all Other Taxes.
(b) Except as provided in Section 2.14(f), if the Borrower shall be
required by law to deduct or withhold any Taxes, Other Taxes or Further Taxes
from or in respect of any sum payable hereunder to any Lender Party or any
Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Lender Party or such Agent, as the case may be,
receives and retains an amount equal to the sum it would have received
and retained had no such deductions or withholdings been made;
(ii) the Borrower shall make such deductions and withholdings;
and
(iii) the Borrower shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law.
(c) Except as provided in Section 2.14(f), the Borrower agrees to
indemnify and hold harmless each Lender Party and each Agent for the full amount
of (i) Taxes, (ii) Other Taxes, and (iii) Further Taxes imposed on or paid by
such Lender Party or such Agent (as the case may be) and any liability
(including penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes, Other Taxes or Further Taxes
were correctly or legally asserted. Payment under this indemnification shall be
made within 30 days after the date such Lender Party or such Agent makes written
demand therefor.
(d) Within 60 days after the date of any payment by the Borrower of
Taxes, Other Taxes or Further Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 8.02, the original
or a certified copy of a receipt evidencing payment thereof, or other evidence
of payment satisfactory to such Administrative Agent. In the case of any payment
hereunder by or on behalf of the Borrower through an account or branch outside
the United States or by or on behalf of the Borrower by a payor that is not a
United States person, if the Borrower determines that no Taxes are payable in
respect thereof, the Borrower shall furnish, or cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender or Initial Issuing Bank, as the
case may be, and on the date of the Assignment and Acceptance pursuant to which
it becomes a Lender Party in the case of each other Lender Party, and from time
to time thereafter as requested in writing by the Borrower and within 60 days of
such written request (but only so long as such Lender Party remains lawfully
able to do so), shall provide each of the Administrative Agent and the Borrower
with two original Internal Revenue Service Forms 1001 or 4224, as appropriate,
or any successor or other form prescribed by the Internal Revenue Service
(including, without limitation, a Form W-8) certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes, if any. If the form provided
by a Lender Party at the time such Lender Party first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender Party provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form;
provided, however, that,
<PAGE> 29
25
if at the date of the Assignment and Acceptance pursuant to which a Lender Party
assignee becomes a party to this Agreement, the Lender Party assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender Party
assignee on such date. Such Lender Party agrees to promptly notify each of the
Administrative Agent and the Borrower of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and shall provide
each of the Administrative Agent and the Borrower with revised versions of the
appropriate forms described in this Section 2.14(e) that reflect such change in
circumstance. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service Form 1001 or 4224, that the Lender Party reasonably considers to
be confidential, the Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with accurate and complete copies of the appropriate form
described in Section 2.14(e) (updated as necessary in accordance therewith)
certifying that such Lender Party is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the
Notes, if any (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be provided),
such Lender Party shall not be entitled to indemnification under Section 2.13(a)
or (c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall,
at such Lender Party's expense, take such steps as the Lender Party shall
reasonably request to assist the Lender Party to recover such Taxes.
(g) If any Lender Party claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001, or
any successor or other form prescribed by the Internal Revenue Service, and such
Lender Party sells, assigns, grants a participation in, or otherwise transfers
all or part of the obligations of the Borrower to such Lender Party, such Lender
Party agrees to notify each of the Administrative Agent and the Borrower of the
percentage amount in which it is no longer the beneficial owner of obligations
of the Borrower to such Lender Party. To the extent of such percentage amount
the Administrative Agent will treat such Lender Party's IRS Form 1001 as no
longer valid and, in the case of a participation, such Lender Party agrees to
undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Internal Revenue Code.
(h) If any Lender Party claiming exemption from United States
withholding tax by filing IRS Form 4224, or any successor or other form
prescribed by the Internal Revenue Service, with the Administrative Agent sells,
assigns, grants a participation in, or otherwise offers all or part of the
obligations of the Borrower to such Lender Party, such Lender Party agrees to
undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Internal Revenue Code.
(i) If the Internal Revenue Service or any other governmental authority
of the United States or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for
the account of any Lender Party (because the appropriate form was not delivered
or was not properly executed, or because such Lender Party failed to notify the
Administrative Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Lender Party shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this
Section, together with all cost and expenses (including Attorney Costs). The
obligation of the Lender Parties under this subsection shall survive the payment
of all obligations and the resignation or replacement of the Administrative
Agent.
SECTION 2.15. Sharing of Payments, Etc. If any Lender Party shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than pursuant to Section 2.11, 2.14, 2.17(b), 2.18, 2.20 or 8.04(d)) in excess
of its ratable share of payments on account of the Advances obtained by all the
Lender Parties, such Lender Party shall forthwith purchase from the other Lender
Parties such participations in the Advances owing to them as shall be necessary
to cause such
<PAGE> 30
26
purchasing Lender Party to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender Party, such purchase from each
Lender Party shall be rescinded and such Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such recovery
together with an amount equal to such Lender Party's ratable share (according to
the proportion of (i) the amount of such Lender Party's required repayment to
(ii) the total amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered. The Borrower agrees that any Lender
Party so purchasing a participation from another Lender Party pursuant to this
Section 2.14 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender Party were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances and
issuances of Letters of Credit shall be available (and the Borrower agrees that
it shall use such proceeds) to provide working capital for the Borrower and for
general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.17. Extension of Termination Date. (a) At least 30 days
but not more than 120 days prior to any Anniversary Date, the Borrower, by
written notice to the Administrative Agent, may request an extension of the
Termination Date in effect at such time by one calendar year from the then
scheduled Termination Date. The Administrative Agent shall promptly notify each
Lender Party of such request, and each Lender Party shall, not later than 15
days after the date of such extension request, notify the Borrower and the
Administrative Agent in writing as to whether such Lender Party will consent to
such extension, which consent shall be in such Lender Party's sole discretion.
If any Lender Party shall fail to notify the Administrative Agent and the
Borrower in writing of its consent to any such request for extension of the
Termination Date within 15 days after the date of such extension request, such
Lender Party shall be deemed to be a Non-Consenting Lender with respect to such
request. The Administrative Agent shall notify the Borrower not later than 15
days prior to such Anniversary Date of the decision of each Lender Party
regarding the Borrower's request for an extension of the Termination Date.
(b) If all of the Lender Parties consent in writing to any such request
in accordance with subsection (a) of this Section 2.17, the Termination Date
shall, effective as at such next Anniversary Date (the "Extension Date"), be
extended for one calendar year from the then scheduled Termination Date;
provided that on each Extension Date, no Default shall have occurred and be
continuing, or shall occur as a consequence thereof. If Lender Parties holding
at least 75% of the aggregate Revolving Credit Commitments at such time consent
in writing to any such request in accordance with subsection (a) of this Section
2.17, the Termination Date in effect at such time shall, effective as at the
applicable Extension Date, be extended as to those Lender Parties that have so
consented (each a "Consenting Lender") but shall not be extended as to any other
Lender Party (each a "Non-Consenting Lender"). In the event that the Termination
Date is not extended as to any Lender Party pursuant to this Section 2.17 and
the Revolving Credit Commitment of such Lender Party is not assumed in
accordance with subsection (c) of this Section 2.17 on or prior to the
applicable Extension Date, the Commitments of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Termination Date and the
Borrower shall repay to the Administrative Agent for the ratable account of such
Non-Consenting Lenders on such unextended Termination Date the aggregate
principal amount of the Revolving Credit Advances then outstanding for such
Non-Consenting Lenders without any further notice or other action by the
Borrower, such Lender Party or any other Person; provided that such
Non-Consenting Lender's rights under Sections 2.11, 2.14, 8.04 and 8.09, and its
obligations under Section 7.07, shall survive the Termination Date for such
Lender Party as to matters occurring prior to such date. It is understood and
agreed that no Lender Party shall have any obligation whatsoever to agree to any
request made by the Borrower for any extension of the Termination Date.
(c) If Lender Parties holding at least 75% of the aggregate Revolving
Credit Commitments at any time consent to any such request pursuant to
subsection (a) of this Section 2.17, the Borrower may arrange for one or more
Consenting Lenders or, to the extent that the Consenting Lenders decline to
assume any Non-Consenting Lender's Revolving Credit Commitment, other Eligible
Assignees (each such Consenting Lender or Eligible Assignee that accepts an
offer to assume a Non-Consenting Lender's Revolving Credit Commitment as of the
applicable Extension Date being an "Assuming Lender") to assume, effective as of
the Extension Date, any Non-Consenting Lender's Revolving Credit Commitment and
all of the obligations of such Non-Consenting Lender under this Agreement
thereafter arising, and for such Non-Consenting Lender to assign, effective as
of the Extension Date, the Advances owing to it at such time and all of its
rights under the Loan Documents then existing or thereafter arising to such
<PAGE> 31
27
Assuming Lender or Lenders, in each case without recourse to or warranty by, or
expense to, such Non-Consenting Lender; provided, however, that the aggregate
amount of Revolving Credit Commitments shall not exceed $400,000,000 unless the
Lender Parties holding 100% of the aggregate Commitments at such time consent to
such request, provided further, however, that, in the case of each
Non-Consenting Lender, the aggregate amount of the Revolving Credit Commitment
of any such Assuming Lender as a result of such assumption and assignment shall
in no event be less than $10,000,000 unless the amount of the Revolving Credit
Commitment of such Non-Consenting Lender is less than $10,000,000, in which case
such Assuming Lender shall assume all of such lesser amount; and provided
further that, in the case of each Non-Consenting Lender:
(i) any Assuming Lender or Lenders assuming such Non-Consenting
Lender's Revolving Credit Commitment pursuant to an Assumption Agreement
shall have paid to such Non-Consenting Lender the aggregate principal
amount of the outstanding Advances, if any, owing to such Non-Consenting
Lender;
(ii) the Borrower shall have paid to the Administrative Agent for
the account of such Non-Consenting Lender: (A) all interest accrued and
unpaid to the effective date of such Assumption Agreement payable on the
outstanding Advances, if any, owing to such Non-Consenting Lender, (B)
all accrued and unpaid commitment or other fees owing to such
Non-Consenting Lender as of the effective date of such Assumption
Agreement and (C) all additional costs, reimbursements, expense
reimbursements and indemnities (including breakage costs under Section
8.04) payable to such Non-Consenting Lender under the Loan Documents,
and all other accrued and unpaid amounts owing to such Non-Consenting
Lender under the Loan Documents, as of the effective date of such
assignment and assumption; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid to the Administrative Agent;
provided still further that, notwithstanding the foregoing, such Non-Consenting
Lender's rights under Sections 2.11, 2.14, 8.04 and 8.09, and its obligations
under Section 7.07, shall survive such assumption and assignment as to matters
arising or events occurring prior to the date of such assumption and assignment.
At least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Borrower and the Administrative
Agent an assumption agreement, in form and substance satisfactory to the
Borrower and the Administrative Agent (an "Assumption Agreement"), duly executed
by such Assuming Lender, such Non-Consenting Lender, the Borrower and the
Administrative Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Administrative
Agent confirming its consent to the proposed extension of the Termination Date,
(C) each Non-Consenting Lender being replaced pursuant to this Section 2.17
shall have delivered to the Administrative Agent any Note or Notes, if any, held
by such Non-Consenting Lender and (D) the Borrower shall have delivered to the
Administrative Agent a new Note payable to the order of each Assuming Lender in
a principal amount equal to the amount of the Revolving Credit Commitment
assumed by such Assuming Lender (if requested by such Assuming Lender). Upon the
payment or prepayment of all amounts referred to in clauses (i), (ii) and (iii)
of this subsection (c) of the immediately preceding sentence, each such Assuming
Lender, as of the Extension Date, will be substituted for such Non-Consenting
Lender under this Agreement and shall be a Lender Party for all purposes of this
Agreement, without any further acknowledgment by or the consent of the other
Lender Parties, and the obligations of each such Non-Consenting Lender hereunder
shall, by the provisions hereof, be released and discharged.
(d) If all of the Lender Parties (after giving effect to any assumption
and assignments pursuant to this Section 2.17) consent in writing to a requested
extension (whether by execution and delivery of an Assumption Agreement or
otherwise) not later than one Business Day prior to such Extension Date, the
Administrative Agent shall so notify the Borrower, and, so long as no Default
shall have occurred and be continuing as of such Extension Date, or shall occur
as a consequence thereof, the Termination Date then in effect shall be extended
for the additional one year period described in subsection (a) of this Section
2.17, and all references in this Agreement, and in the Notes, if any, to the
"Termination Date" shall, with respect to each Consenting Lender and each
Assuming Lender for such Extension Date, refer to the Termination Date as so
extended. Promptly following each Extension Date, the Administrative Agent shall
notify the Lender Parties (including, without limitation, each Assuming Lender)
of the extension of the scheduled Termination Date in effect immediately prior
thereto and shall thereupon record in the Register the relevant information with
respect to each such Consenting Lender and each such Assuming Lender.
<PAGE> 32
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SECTION 2.18. Substitution of Lenders. In the event (a) the
obligation of any Lender to make or maintain Eurodollar Rate Advances has been
suspended pursuant to Section 2.08(b), (b) any Lender has demanded compensation
under Section 2.11, 2.12, 2.14 or 2.20, which compensation increases the
effective lending rate of such Lender in excess of the effective lending rate of
the other Lenders, or (c) any Lender shall be a Defaulting Lender, then and in
any such event, the Borrower may substitute for such Lender (the "Affected
Lender") another financial institution, which financial institution shall be an
Eligible Assignee, for such Lender to assume the Commitment of such Affected
Lender and to purchase the Note, if any, of such Affected Lender hereunder in
accordance with Section 8.07. Such assumption and purchase shall be effected by
execution and delivery by such Affected Lender and such replacement Lender of an
Assignment and Acceptance, and shall otherwise be made in the manner described
in Section 8.07, provided that the Affected Lender's obligation to so assign and
sell its Commitment and Note, if any, shall be subject to the condition that all
amounts owing to such Affected Lender (including, without limitation, principal,
accrued and unpaid interest and fees, and all amounts owing to such Affected
Lender under Sections 2.11, 2.12, 2.14 and 8.04) shall have been paid in full;
provided that such Non-Consenting Lender's rights under Sections 2.11, 2.14 and
8.04, and its obligations under Section 7.07, shall survive the Termination Date
for such Lender Party as to matters occurring prior to such date.
SECTION 2.19. Evidence of Debt. (a) Each Lender Party shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Advance
owing to such Lender Party from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a promissory note or other evidence of indebtedness,
in the form of Exhibit A hereto or in form and substance reasonably satisfactory
to the Borrower and such Lender Party (each a "Note"), payable to the order of
such Lender in a principal amount equal to the Revolving Credit Commitment of
such Lender.
(b) The Register maintained by the Administrative Agent pursuant
to Section 8.07(d) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assignment and Acceptance delivered to and accepted by it,
(iii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder, and (iv) the amount of
any sum received by the Administrative Agent from the Borrower hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Administrative Agent or such
Lender to make an entry, or any finding that an entry is incorrect, in the
Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.
SECTION 2.20. Additional Interest on Eurodollar Rate Advances.
The Borrower shall pay to each Lender Party, so long as such Lender Party shall
be required under regulations of the FRB to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender Party, from the date of such Advance until such principal
amount is paid in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Advance from (ii) the rate obtained by dividing such Eurodollar
Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
of such Lender for such Interest Period, payable on each date on which interest
is payable on such Advance. Such additional interest shall be determined by such
Lender Party and notified to the Borrower through the Administrative Agent.
SECTION 2.21. Presentation of Claims; Certificates. Each Lender
Party will, within 180 days after obtaining knowledge of any event occurring
after the date hereof, which would entitle such Lender Party to
<PAGE> 33
29
compensation pursuant to Section 2.11, 2.12, 2.14 or 2.20 (each a "Triggering
Event"), notify the Borrower and the Administrative Agent of such Triggering
Event. Notwithstanding any other provision of this Agreement, no Lender Party
shall be entitled to any compensation pursuant to any such section in respect of
any Triggering Event (a) for any period of time in excess of 180 days prior to
such notice or (b) for any period prior to such notice if such Lender Party
shall not have given notice within 180 days of the date such Triggering Event
shall have been enacted, promulgated, adopted or issued in definitive final
form, except to the extent such Triggering Event is retroactive. Any Lender
Party claiming reimbursement or compensation under any such Section shall
deliver to the Borrower, with a copy to the Administrative Agent, a certificate
setting forth in reasonable detail such claimed amount and such certificate
shall be conclusive and binding for all purposes, absent manifest error.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse Change since
September 28, 1997.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that
(i) would be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of any Loan
Document or the consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Initial Lenders and the Initial Issuing Bank) and
shall remain in effect, and no law or regulation shall be applicable in
the reasonable judgment of the Initial Lenders and the Initial Issuing
Bank that restrains, prevents or imposes materially adverse conditions
upon the transactions contemplated hereby.
(d) The Borrower shall have notified each Initial Lender, the
Initial Issuing Bank and each Agent in writing as to the proposed
Effective Date.
(e) The Borrower shall have paid all accrued fees of the Agents,
Arrangers and Lender Parties and the accrued fees and expenses of
counsel to the Agents.
(f) On the Effective Date, the following statements shall be true
and the Documentation Agent shall have received for the benefit of each
Lender Party a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(g) The Agents shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agents and (except for the Notes, if any) in
sufficient copies for each of the Initial Lenders and the Initial
Issuing Bank:
(i) The Notes, if any, to the order of the Initial
Lenders that have requested Notes, respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving each Loan Document, and of
the certificate of incorporation and the bylaws of the
<PAGE> 34
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Borrower and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to the Loan Documents.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
the Loan Documents and the other documents to be delivered
hereunder.
(iv) Certified copies of the Related Documents.
(v) A favorable opinion of Cooley Godward LLP, counsel
for the Borrower, substantially in the form of Exhibit D hereto
and as to such other matters as any Initial Lenders or the
Initial Issuing Bank through the Documentation Agent may
reasonably request.
(vi) A favorable opinion of Shearman & Sterling, counsel
for the Agents, in form and substance satisfactory to the
Agents.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Lender Party to make an Advance (other than a
Letter of Credit Advance made by an Issuing Bank or a Lender pursuant to Section
2.03(c)) on the occasion of each Borrowing (including the initial Borrowing) and
the obligation of each Issuing Bank to issue a Letter of Credit (including the
initial issuance) or renew a Letter of Credit shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Borrowing or issuance or renewal (a) the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing or Request for Letter
of Credit Issuance or notice of renewal and the acceptance by the Borrower of
the proceeds of such Borrowing or of such Letter of Credit or the renewal of
such Letter of Credit shall constitute a representation and warranty by the
Borrower that both on the date of such notice and on the date of such Borrowing
or issuance or renewal such statements are true):
(i) the representations and warranties contained in Section 4.01
are correct on and as of such date, before and after giving effect to
such Borrowing or issuance or renewal and to the application of the
proceeds therefrom, as though made on and as of such date other than any
such representations or warranties that, by their terms, refer to a
specific date other than the date of the Borrowing or issuance or
renewal, in which case as of a such specific date, and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of
the proceeds therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as to material matters (in the reasonable determination of
the Administrative Agent) as any Lender Party through the Administrative Agent
may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Documentation Agent responsible for the transactions contemplated
by this Agreement shall have received notice from such Lender Party prior to the
date that the Borrower, by notice to the Lender Parties, designates as the
proposed Effective Date, specifying its objection thereto. The Documentation
Agent shall promptly notify the Lender Parties of the occurrence of the
Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
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(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority (including, without
limitation, all governmental licenses, permits and other approvals and
all intellectual property) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted.
(b) (i) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Restricted Subsidiaries and Unrestricted
Subsidiaries of the Borrower, showing as of the date hereof (as to each
such Restricted Subsidiary and each such Unrestricted Subsidiary), the
jurisdiction of its incorporation or organization and the percentage of
the outstanding shares (or other ownership interest, as applicable)
owned (directly or indirectly) by the Borrower as of the date hereof.
(ii) Each Subsidiary of the Borrower (other than those
identified as partnerships on Schedule 4.01(b) hereto) (x) is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and (y)
has all requisite corporate power and authority (including,
without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted.
(iii) Each of those identified as partnerships on Schedule
4.01(b) hereto (x) is a partnership duly organized under the laws
of its jurisdiction of organization, (y) has all requisite
partnership power and authority (including, without limitation,
all governmental licenses, periods and other approvals) to own or
lease and operate its properties and to carry on its business as
now conducted and as proposed to be conducted.
(c) The execution, delivery and performance by the Borrower of
this Agreement and each other Loan Document, and the consummation of the
transactions contemplated hereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and
do not contravene (i) the Borrower's charter or by-laws or (ii) law or
any contractual restriction binding on or affecting the Borrower.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery and
performance by the Borrower of this Agreement or any other Loan
Document, except for those authorizations, approvals, actions, notices
and filings listed on Schedule 4.01(d) hereto, all of which have been
duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each other Loan Document when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their
respective terms except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally.
(f) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at September 28, 1997, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Price
Waterhouse LLP, independent public accountants, duly certified by the
chief financial officer of the Borrower, together with a certificate of
said officer stating that such information is accurate and correct in
all material respects, copies of which have been furnished to each
Lender Party, fairly present the Consolidated financial condition of the
Borrower and its Subsidiaries as at such date and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
period ended on such date, all in accordance with generally accepted
accounting principles consistently applied. Since September 28, 1997,
there has been no Material Adverse Change.
(g) There is no pending action, suit, investigation, litigation
or proceeding against or, to the best of the Borrower's knowledge,
otherwise affecting the Borrower or any of its Subsidiaries or, to the
best of the Borrower's knowledge, threatened action, suit,
investigation, litigation or proceeding affecting the Borrower of any of
its Subsidiaries, including without limitation, any Environmental
Action, before any
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court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any other Loan
Document or the consummation of the transactions contemplated hereby.
(h) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(i) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(j) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90% and there has been no material adverse change
in the funding status of any such Plan since such date.
(k) Neither the Borrower nor any ERISA Affiliate has incurred or
is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan.
(l) Neither the Borrower nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably expected
to be in reorganization or to be terminated, within the meaning of Title
IV of ERISA.
(m) Except as set forth in the financial statements referred to
in this Section 4.01 and in Section 5.03, the Borrower and its
Subsidiaries have no material liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(n) (i) Except where it would not be reasonably likely to result
in a Material Adverse Effect, the operations and properties of the
Borrower and each of its Subsidiaries comply in all material respects
with all applicable Environmental Laws and Environmental Permits, all
past non-compliance with such Environmental Laws and Environmental
Permits has been resolved without ongoing obligations or costs, and no
circumstances exist that would be reasonably likely to (A) form the
basis of an Environmental Action against the Borrower or any of its
Subsidiaries or any of their properties that could have a Material
Adverse Effect or (B) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that could have a Material Adverse Effect.
(ii) None of the properties currently or, to the best of
the Borrower's knowledge, formerly owned or operated by the
Borrower or any of its Subsidiaries is listed or proposed for
listing on the National Priorities List under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("NPL") or on the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the
U.S. Environmental Protection Agency ("CERCLIS") or any analogous
foreign, state or local list or, to the best knowledge of the
Borrower, is adjacent to any such property; there are no and
never have been any underground or aboveground storage tanks or
any surface impoundments, septic tanks, pits, sumps or lagoons in
which Hazardous Materials are being or have been treated, stored
or disposed of on any property currently owned or operated by the
Borrower or any of its Subsidiaries or, to the best of its
knowledge, on any property formerly owned or operated by the
Borrower or any of its Subsidiaries that would be reasonably
likely to result in a Material Adverse Effect; there is no
asbestos or asbestos-containing material on any property
currently owned or operated by the Borrower or any of its
Subsidiaries that would be reasonably likely to result in a
Material Adverse Effect; and Hazardous Materials have not been
released, discharged or disposed of on any property currently or,
to the best of the Borrower's knowledge, formerly owned or
operated by the Borrower or any of its Subsidiaries or, to the
best of its knowledge, any adjoining property that would be
reasonably likely to result in a Material Adverse Effect.
<PAGE> 37
33
(iii) Neither the Borrower nor any of its Subsidiaries is
undertaking, and has not completed, either individually or
together with other potentially responsible parties, any
investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of any
governmental or regulatory authority or the requirements of any
Environmental Law that would be reasonably likely to result in a
Material Adverse Effect; and all Hazardous Materials generated,
used, treated, handled or stored at or transported to or from any
property currently or, to the best of the Borrower's knowledge,
formerly owned or operated by the Borrower or any of its
Subsidiaries have been disposed of in a manner not reasonably
expected to result in a Material Adverse Effect.
(o) The Borrower and each of its Restricted Subsidiaries is in
compliance, in all material respects, with all applicable laws, rules,
regulations and orders and all agreements or instruments evidencing Debt
and other material agreements, in each case by which any of them or
their properties is bound except in any case where the failure to so
comply, either individually or in the aggregate, would not be reasonably
likely to have a Material Adverse Effect.
(p) Neither the Borrower nor any of its Subsidiaries is an
"investment company", an "affiliated person" of an "investment company",
or a "promoter" or "principal underwriter" for an "investment company",
as such terms are defined the Investment Company Act of 1940, as
amended. Neither the making of any Advances nor the application of the
proceeds therefrom or repayment thereof by the Borrower, nor the
consummation of the transactions contemplated hereby, will violate any
provision of such Act or any rule, regulation or order of the SEC
thereunder.
(q) There are no Liens of any nature whatsoever on any properties
of the Borrower or any of its Restricted Subsidiaries other than Liens
permitted under Section 5.02(a).
(r) The Borrower and each of its Subsidiaries have filed, have
caused to be filed or have been included in all tax returns (federal,
state, local and foreign) that are, to the best of the Borrower's
knowledge after undertaking due diligence and inquiry in any
jurisdiction in which the Borrower has reason to believe it may be
currently subject to taxation (it being understood that the Borrower and
its Restricted Subsidiaries are under an absolute obligation to
undertake such due diligence and inquiry in each such jurisdiction),
required to be filed or, in the case of income taxes, that are similarly
required to be filed and where the failure to do so would cause the
imposition of a penalty or interest, and in each case have paid all
taxes shown thereon to be due, together with applicable interest and
penalties.
(s) Set forth on Schedule 4.01(s) hereto is a complete and
accurate list, as of the date hereof, of all issued patents, trademarks,
trade names, parties to CDMA license agreements, registered service
marks and registered copyrights of the Borrower and each of its
Subsidiaries, showing as of the date hereof, the U.S.
registration numbers where applicable.
(t) Set forth on Schedule 4.01(t) hereto is a complete and
accurate list, as of the date hereof, of all real property owned or
leased by the Borrower or any of its Restricted Subsidiaries with a book
value of $1 million or more or, where no book value is available, with
an annual rent greater than $500,000, in each case, showing as of the
date hereof the street address, county or other relevant jurisdiction or
state, and with respect to any lease, the lessor, lessee, expiration
date and annual rental cost thereof. Each such lease is the legal, valid
and binding obligation of the lessor thereof, enforceable in accordance
with its terms.
(u) Set forth on Schedule 4.01(u) hereto is a complete and
accurate list as of the date hereof of all categories of Existing Debt
and each individual item of Existing Debt that has a stated value of $5
million or more and, in each case, the amount thereof.
(v) Set forth on Schedule 4.01(v) hereto is a complete and
accurate list of all existing equity capital Investments of the Borrower
and its Restricted Subsidiaries.
<PAGE> 38
34
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Restricted Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws as provided in Section 5.01(j).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Restricted Subsidiaries to pay and discharge, before the same shall
become delinquent, any and all amounts that either on an individual
basis or in the aggregate equal or exceed $50,000 and that are
attributable to (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its Restricted
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Restricted Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Borrower or such Restricted Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Restricted Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Borrower and its Restricted
Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(b) and provided further that neither the Borrower nor any
of its Restricted Subsidiaries shall be required to preserve any right
or franchise if the Board of Directors of the Borrower or such
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such
Restricted Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to the Borrower and the
Restricted Subsidiaries taken as a whole or the Lender Parties.
(e) Visitation Rights. At any reasonable time and from time to
time, but in all cases during the Borrower's normal business hours and
upon reasonable notice, permit any Agent or any of the Lender Parties or
any agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Restricted Subsidiaries, and
to discuss the affairs, finances and accounts of the Borrower and any of
its Restricted Subsidiaries with any of their Responsible Officers and,
upon 5 Business Days' notice to a Responsible Officer, any of the
officers of the Borrower or its Restricted Subsidiaries and with their
independent certified public accountants as may reasonably be necessary
to discuss the affairs, finances and accounts of the Borrower and any of
its Restricted Subsidiaries.
(f) Keeping of Books. Keep, and cause each of its Restricted
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Restricted Subsidiary
in accordance with generally accepted accounting principles in effect
from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Restricted Subsidiaries to maintain and preserve, all
of its properties that are used or useful in the conduct of its business
in good working order and condition, ordinary wear and tear excepted.
<PAGE> 39
35
(h) Transactions with Affiliates. Conduct, and cause each of its
Restricted Subsidiaries to conduct, all transactions otherwise permitted
under this Agreement with any of their Affiliates on terms that are fair
and reasonable and no less favorable to the Borrower or such Restricted
Subsidiary than it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate (it being understood that for purposes of
this clause (h), an "arm's-length transaction" includes a transaction
which is (A) commercially reasonable, (B) conducted in the ordinary
course of business of such Borrower or such Restricted Subsidiary and
(C) consistent with past business practices of such Borrower or such
Restricted Subsidiaries).
(i) Reporting Requirements. Furnish to the Administrative Agent
for distribution promptly to the Lender Parties:
(i) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year, a Consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Borrower
and its Restricted Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such
quarter, duly certified (subject to year-end audit adjustments)
by a Responsible Officer of the Borrower as having been prepared
in accordance with generally accepted accounting principles and
a certificate of the chief financial officer of the Borrower (in
the form of Exhibit E hereto) as to compliance with the terms of
this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section
5.03, provided that, in the event of any change in GAAP used in
the preparation of such financial statements, the Borrower shall
also provide, if necessary for the determination of compliance
with Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(ii) as soon as available and in any event within 100
days after the end of each fiscal year, a copy of the audited
annual report for such year for the Borrower and its
Consolidated Subsidiaries, and a Consolidated balance sheet of
the Borrower and its Restricted Subsidiaries as of the end of
such fiscal year and Consolidated statements of income and cash
flows of the Borrower and its Restricted Subsidiaries for such
fiscal year, and, in the case of the audited annual report,
accompanied by an unqualified opinion by Price Waterhouse LLP or
other independent public accountants acceptable to the Required
Lenders, together with a certificate of a Responsible Officer of
the Borrower (in the form of Exhibit E hereto) as to compliance
with the terms of this Agreement and setting forth in reasonable
detail the calculations necessary to demonstrate compliance with
Section 5.03 provided that, in the event of any change in GAAP
used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP;
(iii) as soon as available and in any event no later
than 90 days after the end of each fiscal year, forecasts
prepared by management of the Borrower, in form satisfactory to
the Administrative Agent, of balance sheets, income statements
and cash flow statements of the Borrower and its Restricted
Subsidiaries on a quarterly basis for the fiscal year following
such fiscal year then ended and on an annual basis for each
fiscal year thereafter until the Termination Date;
(iv) within five days after the Borrower knows or should
know of the occurrence of each Default continuing on the date of
such statement, a statement of the chief financial officer of
the Borrower setting forth details of such Default and the
action that the Borrower has taken and proposes to take with
respect thereto;
(v) promptly after the filing thereof, copies of all
material reports and registration statements that the Borrower
or any Subsidiary files with the Securities and Exchange
Commission;
(vi) promptly after the commencement thereof, notice of
all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Restricted Subsidiaries of the type described in Section
4.01(g);
<PAGE> 40
36
(vii) (A) promptly and in any event within 20 days after
the Borrower or any ERISA Affiliate knows or has reason to know
that any ERISA Event has occurred, a statement of a Responsible
Officer of the Borrower describing such ERISA Event and the
action, if any, that the Borrower or such ERISA Affiliate has
taken and proposes to take with respect thereto and (B) on the
date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to
Section 4010 of ERISA, a copy of such records, documents and
information;
(viii) promptly and in any event within three Business
Days after receipt thereof by the Borrower or any ERISA
Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
(ix) promptly and in any event within 30 days after the
receipt thereof by the Borrower or any ERISA Affiliate, a copy
of the annual actuarial report for each Plan the funded current
liability percentage (as defined in Section 302(d)(8) of ERISA)
of which is less than 90% or the unfunded current liability of
which exceeds $5,000,000;
(x) promptly and in any event within five Business Days
after receipt thereof by the Borrower or any ERISA Affiliate
from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any
such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (C) the amount of liability incurred, or
that may be incurred, by the Borrower or any ERISA Affiliate in
connection with any event described in clause (A) or (B);
(xi) promptly after the assertion or occurrence thereof,
notice of any Environmental Action against or of any
noncompliance by the Borrower or any of its Subsidiaries with
any Environmental Law or Environmental Permit that could
reasonably be expected to have a Material Adverse Effect;
(xii) promptly after the occurrence thereof, notice of
any change in the Public Debt Rating of the Borrower; and
(xiii) such other information respecting the Borrower or
any of its Subsidiaries as any Lender Party through the
Administrative Agent may from time to time reasonably request.
(j) Compliance with Environmental Laws. Comply, and cause each of
its Restricted Subsidiaries and all lessees and other Persons operating
or occupying its properties to comply, in all material respects, with
all applicable Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Restricted Subsidiaries to obtain and renew
all material Environmental Permits necessary for its operations and
properties; and conduct, and cause each of its Restricted Subsidiaries
to conduct, any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to
remove and clean up all Hazardous Materials from any of its properties,
in accordance with the requirements of all Environmental Laws that would
be reasonably likely to have a Material Adverse Effect; provided,
however, that neither the Borrower nor any of its Restricted
Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its properties,
whether now owned or hereafter acquired, or assign, or permit any of its
Restricted Subsidiaries to assign, any right to receive income, other
than:
<PAGE> 41
37
(i) Permitted Liens;
(ii) purchase money Liens (including mortgages) upon or
in any real property or equipment acquired or held by the
Borrower or any Restricted Subsidiary in the ordinary course of
business to secure the purchase price of such property or
equipment or inventory or to secure Debt incurred solely for the
purpose of financing the acquisition of such property or
equipment or inventory, or Liens existing on such property or
equipment at the time of its acquisition (other than any such
Liens created in contemplation of such acquisition that were not
incurred to finance the acquisition of such property or
equipment or inventory) or extensions, renewals or replacements
of any of the foregoing for the same or a lesser amount;
provided, however, that no such Lien shall extend to or cover
any properties of any character other than the real property or
equipment or inventory being acquired, and no such extension,
renewal or replacement shall extend to or cover any properties
not theretofore subject to the Lien being extended, renewed or
replaced;
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto;
(iv) Liens on property of a Person existing at the time
such Person is merged into or consolidated with the Borrower or
any Restricted Subsidiary of the Borrower or becomes a
Restricted Subsidiary of the Borrower; provided that such Liens
are otherwise permitted under this Section 5.02(a) and were not
created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those of
the Person so merged into or consolidated with the Borrower or
such Restricted Subsidiary or acquired by the Borrower or such
Restricted Subsidiary;
(v) Liens arising in connection with Capitalized Leases;
provided that no Lien shall extend to or cover any assets other
than the assets subject to such Capitalized Leases;
(vi) Liens on rights to receive payment owing under
Vendor Loans, accounts receivable, royalty payments under
license agreements arising solely in connection with the
financing, sale or other disposition of such Vendor Loans,
accounts receivable or royalty payments under license agreements
pursuant to Section 5.02(e)(v);
(vii) Liens on cash and Cash Equivalents in an aggregate
amount at any time outstanding not to exceed the greater of (A)
$150,000,000 and (B) 35% of all cash and Cash Equivalents held
by the Borrower and its Restricted Subsidiaries in U.S. deposit
or investment accounts, securing Debt permitted under Section
5.02(d)(i)(B) or (iii)(B);
(viii) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct
or contingent obligor) of the Debt secured thereby;
(ix) Liens on equity interests, partnership interests or
other similar ownership interests owned or otherwise held by the
Borrower or its Restricted Subsidiaries in connection with the
Borrower's or its Restricted Subsidiaries' Investments in the
telecommunications business; and
(x) Liens consisting of mortgages on real property as
security for the repayment of Debt incurred by the Borrower or
its Restricted Subsidiaries as permitted hereunder.
(b) Mergers, Etc. Merge or consolidate with or into any Person,
or permit any of its Restricted Subsidiaries to do so, except that (i)
any Restricted Subsidiary of the Borrower may merge or consolidate with
or into any other Restricted Subsidiary of the Borrower, (ii) any
Restricted Subsidiary of the Borrower may merge into the Borrower so
long as the Borrower is the surviving entity, (iii) the Borrower may
merge with any other Person so long as the Borrower is the surviving
corporation, (iv) any Restricted Subsidiary may merge with any other
Person so long as the Restricted Subsidiary is the surviving Person and
(v) any Restricted Subsidiary may merge into another Person solely for
the purpose of effecting a sale, transfer or
<PAGE> 42
38
other disposition of assets permitted under Section 5.02(e)(vii);
provided, however, that, in each case, (i) no Default shall have
occurred and be continuing at the time of such proposed transaction or
would result therefrom, (ii) the Borrower shall be in pro forma
compliance (calculated based on the historical financial statements most
recently furnished or required to be furnished pursuant to Section
5.01(i)) with the covenants set forth in Section 5.03) and (iii) the
Borrower shall have furnished to the Administrative Agent a Compliance
Certificate.
(c) Accounting Changes. Make or permit, or permit any of its
Restricted Subsidiaries to make or permit, any change in accounting
policies or reporting practices, except as required or permitted by
generally accepted accounting principles; provided, however, that in the
event the Borrower or any of its Restricted Subsidiaries makes any such
change in their respective accounting policies or reporting practices as
permitted hereunder, the Borrower shall promptly notify the
Administrative Agent of any change that is material on an individual
basis or, when aggregated with any other change or changes, is material,
in each case, in reasonable detail.
(d) Debt. Create, incur, assume or suffer to exist, or permit any
of its Restricted Subsidiaries to create, incur, assume or suffer to
exist, any Debt other than:
(i) in the case of the Borrower,
(A) Debt under the Loan Documents,
(B) Permitted Debt, provided, that immediately
before and after giving effect thereto, (I) no Default
shall have occurred and be continuing and (II) the
Borrower shall be in pro forma compliance (calculated
based on the historical financial statements most
recently furnished or required to be furnished pursuant
to Section 5.01(i)) with the covenants set forth in
Section 5.03,
(C) Debt in respect of Hedge Agreements not
entered into for speculative purposes and designed to
hedge against fluctuation in interest rates or foreign
exchange rates incurred in the ordinary course of
business and consistent with prudent business practice,
(D) additional unsecured Debt (other than Debt
of the type described in clause (j) of the definition of
"Debt"), provided that at the time such Debt is
incurred, (I) no Default shall have occurred and be
continuing before or after giving effect to the
incurrence of such Debt, (II) the maturity thereof is at
least one year after the Termination Date in effect at
the time of the incurrence of such Debt and any
amortization thereof shall commence no earlier than such
Termination Date, and (III) the Borrower shall be in pro
forma compliance (calculated based on historical
financial statements most recently furnished or required
to be furnished pursuant to Section 5.01(i)) with the
covenants set forth in Section 5.03, and
(E) other unsecured Debt maturing prior to one
year after the Termination Date incurred in the ordinary
course of business aggregating not more than $15,000,000
at any time outstanding, provided, that immediately
before and after giving effect thereto, (I) no Default
shall have occurred and be continuing and (II) the
Borrower shall be in pro forma compliance (calculated
based on the historical financial statements most
recently furnished or required to be furnished pursuant
to Section 5.01(i)) with the covenants set forth in
Section 5.03;
(ii) in the case of the Borrower and its Restricted
Subsidiaries,
(A) Capitalized Leases (including in connection
with sale-leaseback transactions) secured by Liens
permitted by Section 5.02(a)(v) and Debt secured by
Liens permitted by Section 5.02(a)(ii) and (x), provided
that at the time such Debt is incurred,
<PAGE> 43
39
(i) no Default shall have occurred and be continuing before or after giving
effect to the incurrence of such Debt and (ii) the Borrower shall be in pro
forma compliance (calculated based on historical financial statements most
recently furnished or required to be furnished pursuant to Section 5.01(i)) with
the covenants set forth in Section 5.03,
(B) indorsement of negotiable instruments for
deposit or collection or similar transactions in the
ordinary course of business,
(C) Debt incurred in connection with the sale,
transfer or other disposition of Vendor Loans, accounts
receivable or royalty payments under license agreements
pursuant to Section 5.02(e)(v); provided that (i) no
Default shall have occurred and be continuing before or
after giving effect to the incurrence of such Debt and
(ii) the Borrower shall be in pro forma compliance
(calculated based on historical financial statements,
most recently furnished or required to be furnished
pursuant to Section 5.01(i)) with the covenants set
forth in Section 5.03),
(D) Debt existing on the Effective Date and
described on Schedule 4.01(u) hereto, and any Debt
extending the maturity of, or refunding or refinancing,
in whole or in part, the Existing Debt, provided that
the principal amount of such Existing Debt shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors
therefor shall not be changed, as a result of or in
connection with such extension, refunding or
refinancing, and
(E) Debt consisting of any Investments permitted
under Sections 5.02(g)(vi), (vii), (viii), (ix) and (x);
provided, however, (i) no Default exists before or after
giving effect to the incurrence of such Debt and (ii)
the Borrower shall be in pro forma compliance
(calculated based on historical financial statements,
most recently furnished or required to be furnished
pursuant to Section 5.01(i)) with the covenants set
forth in Section 5.03; and
(iii) in the case of the Borrower's Restricted
Subsidiaries,
(A) Debt owed to the Borrower or to a wholly
owned Restricted Subsidiary of the Borrower, and
(B) additional Debt (other than Debt secured by
capital stock of the Borrower or any of its Restricted
Subsidiaries) aggregating not more than $50,000,000
outstanding at any time; provided that at the time such
Debt is incurred, (i) no Default shall have occurred and
be continuing before or after giving effect to the
incurrence of such Debt, (ii) the Borrower shall be in
pro forma compliance (calculated based on historical
financial statements most recently furnished or required
to be furnished pursuant to Section 5.01(i)) with the
covenants set forth in Section 5.03 and (iii) the terms
relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and
other material terms taken as a whole, of such Debt and
of any agreement entered into and of any instrument
issued in connection therewith are no less favorable in
any material respect to the Borrower or the Lender
Parties than the terms and conditions of this Agreement.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Restricted Subsidiaries to sell, lease,
transfer or otherwise dispose of, any assets, or grant any option or
other right to purchase, lease or otherwise acquire any assets except:
(i) sales of inventory in the ordinary course of its
business;
(ii) in a transaction authorized by Section 5.02(b)
hereunder;
<PAGE> 44
40
(iii) sales, leases, transfers or other dispositions of
assets (A) from the Borrower to any Restricted Subsidiary for
fair value and (B) from any Restricted Subsidiary to the
Borrower for fair value and (C) from the Borrower or any
Restricted Subsidiary to any Unrestricted Subsidiary for cash
and for fair value;
(iv) sales, leases, transfers or other dispositions of
assets and properties of the Borrower or any of its Restricted
Subsidiaries in connection with sale-leaseback transactions
otherwise permitted hereunder;
(v) (A) the non-recourse (except as otherwise hereunder
permitted) sale, transfer or other disposition of Vendor Loans
for cash and for fair value in the ordinary course of business
of the Borrower and its Restricted Subsidiaries, (B) the
non-recourse sale of international accounts receivable for cash
and for fair value in the ordinary course of business of the
Borrower and its Restricted Subsidiaries and (C) the
non-recourse financing, sale or other disposition of royalty
payments under license agreements in the ordinary course of
business of the Borrower and its Restricted Subsidiaries solely
in connection with securitizations in an aggregate amount under
this subclause (C) not to exceed 50% of the net present value of
the aggregate amount of royalty payments arising under all
license agreements of the Borrower and its Restricted
Subsidiaries (the calculation thereof to be determined in good
faith by the Borrower using commercially reasonable
assumptions);
(vi) sales, transfers or other dispositions of
Investments permitted under Sections 5.02(g)(iii), (v), (vii),
(viii), (ix) and (x);
(vii) in addition to the foregoing items, sales, leases,
transfers or other dispositions of assets for fair value,
provided that at least 75% of the proceeds of such sales,
leases, transfers or other dispositions shall be for cash,
provided that the aggregate amount of such assets sold in any
fiscal year: (x) shall not exceed 25% of Total Tangible Assets
calculated as at the end of the fiscal year then most recently
ended and (y) shall not have generated more than 25% of the
Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries for the fiscal year then most recently ended;
(viii) any sale, transfer or disposition of capital
assets of the Borrower or any Restricted Subsidiaries to the
extent such sale constitutes the sale of obsolete or worn out
property or such property which is no longer required in the
operation of the Borrower's or its Restricted Subsidiaries'
businesses, any liquidation sales of any discontinued,
discounted or obsolete inventory; and
(ix) sales, leases, transfers or other dispositions of
assets of the Borrower or any of its Restricted Subsidiaries to
joint ventures permitted under Section 5.02(g)(vii) for
reasonably equivalent value;
provided, however, that with respect to clauses (ii), (iii)(B) and (C),
(iv), (v), (vi) and (vii) above: (A) any such sale, lease, transfer or
other disposition of such asset shall be for fair value, determined in
good faith by the Borrower; and (B) immediately after giving effect
thereto, the Borrower shall be in pro forma compliance (calculated based
on historical financial statements most recently furnished or required
to be furnished pursuant to Section 5.01(i)) with the covenants set
forth in Section 5.03.
(f) Dividends, Etc. Declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of capital stock of the
Borrower, or purchase, redeem or otherwise acquire for value (or permit
any of its Subsidiaries to do so) any shares of any class of capital
stock of the Borrower or any warrants, rights or options to acquire any
such shares, now or hereafter outstanding, except that, so long as no
Default shall have occurred and be continuing at the time of any action
described below or would result therefrom, the Borrower may:
<PAGE> 45
41
(i) purchase, redeem or otherwise acquire shares of its
preferred stock issued pursuant to the Preferred Share Purchase
Rights Plan or the Trust Convertible Preferred Securities, rights
or options to acquire any such shares or Trust Convertible
Preferred Securities with the proceeds received from the
substantially concurrent issue of new shares of its capital stock
or Debt incurred in pursuant to Section 5.02(d)(i)(D); provided,
however, that (A) the issuance and sale of any such capital stock
would not materially impair the rights or interests of any Agent
or any Lender Party under the Loan Documents, (B) no Default
exists before or after giving effect to the issuance and sale of
such capital stock, and (C) the material terms, taken as a whole,
of such capital stock and of any agreement entered into and of
any instrument issued in connection therewith are no less
favorable in any material respect to the Borrower or the Lender
Parties than the terms and conditions of this Agreement;
(ii) declare and pay cash dividends to the holders of its
preferred stock issued pursuant to the Preferred Share Purchase
Rights Plan or holders of the Trust Convertible Preferred
Securities, in each case, as in effect on the date hereof, to the
extent permitted under applicable law, solely out of (A) net
income of the Borrower and its Restricted Subsidiaries, arising
after September 28, 1997 and computed on a cumulative
Consolidated basis or (B) cash and Cash Equivalents owned by the
Borrower at the time of such payment at such time in excess of
(x) the aggregate principal amount of all Advances then
outstanding, (y) all interest thereon and (z) all other amounts
then due and payable under the Loan Documents;
(iii) purchase shares of capital stock of the Borrower
through a variety of ways, including, but not limited to (A)
purchasing such stock in the open market or in private
transactions, (B) selling and/or buying put and/or call options
directly or indirectly on such stock, (C) entering into forward
contracts to purchase such stock at specified future dates, and
(D) entering into any combination of the foregoing; provided,
however, that each such purchase shall be made in nonspeculative
transactions approved in good faith by the Borrower's board of
directors; and provided further, however, that the aggregate
settlement price for all such purchases valued at the time of
settlement of such purchases, net of any premiums received by the
Borrower, shall not exceed the greater of $100,000,000 or the
aggregate amount of 15% of cash and Cash Equivalents owned by the
Borrower and its Restricted Subsidiaries at such time; and
(iv) the Borrower and its Restricted Subsidiaries may
repurchase capital stock from employees, directors and
consultants of the Borrower and its Subsidiaries pursuant to
existing or future stock option plans and such other repurchase
agreements approved by such Person's Board of Directors in good
faith and consistent with past practices of such Person, or such
other repurchase agreement pursuant to employee or consultant
contracts, provided that such agreement is fair, reasonable and
in the ordinary course of business of the Borrower or its
Restricted Subsidiaries, as the case may be;
provided, however, that, in each such case, immediately before and after
giving effect thereto, no Default shall have occurred and be continuing
or would result therefrom and the Borrower shall be in pro forma
compliance (calculated based on historical financial statements most
recently furnished or required to be furnished pursuant to Section
5.01(i)) with the covenants set forth in Section 5.03.
(g) Investments in Other Persons. Make or hold, or permit any of
its Restricted Subsidiaries to make or hold, any Investment in any
Person other than:
(i) Investments by the Borrower or its Restricted
Subsidiaries in their Restricted Subsidiaries outstanding on the
date hereof and additional investments in wholly owned Restricted
Subsidiaries;
(ii) loans and advances to employees, directors and
consultants in the ordinary course of the business of the
Borrower and its Restricted Subsidiaries as presently conducted
and other loans and advances to employees, directors and
consultants of the Borrower and its Restricted Subsidiaries with
the approval of the Borrower's or such Restricted Subsidiary's
board of directors;
(iii) Investments in Cash Equivalents;
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42
(iv) Investments consisting of intercompany Debt permitted
under Section 5.02(d)(iii)(A);
(v) Investments received in connection with the bankruptcy
or reorganization of suppliers and customers and the compromise
or settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of
business;
(vi) other Investments (direct or indirect) in suppliers,
operators, customers and manufacturers in connection with
customer and vendor financing in the ordinary course of business
and consistent with past practices; provided that any such
business acquired or invested in shall be in the same or similar
line of business as the business of the Borrower or any of its
Restricted Subsidiaries' existing telecommunications, logistics,
software, wireless data transmission or similar businesses, or in
the wireless operations business;
(vii) Investments in joint ventures, provided that any
such business acquired or invested in shall be in the same or
similar line of business as the business of the Borrower or any
of its Restricted Subsidiaries' existing telecommunications,
logistics, software, wireless data transmission or similar
businesses, or in the wireless operations business;
(viii) existing Investments as described on Schedule
4.01(v) hereto;
(ix) Investments in special purpose Restricted
Subsidiaries formed to effect acquisitions otherwise permitted
hereunder or Investments described in (vi) and (vii) of this
Section 5.02(g); and
(x) other Investments not otherwise described in this
Section 5.02(g), provided that the original cost of such
Investments made does not exceed, in the aggregate, $25,000,000
in any fiscal year or, if less than such amount is invested in
any fiscal year, the unused portion of such amount may be carried
over to succeeding fiscal years to increase the amount otherwise
permitted in subsequent fiscal years;
provided, however, with respect to clauses (v), (vi), (vii), (ix) and
(x) above,
(i) no Default exists before or after giving effect to the
making of such Investment,
(ii) the Borrower shall be in pro forma compliance
(calculated based on historical financial statements most
recently furnished or required to be furnished pursuant to
Section 5.01(i)) with the covenants set forth in Section 5.03,
and
(iii) any such Investment shall be for fair value as
determined in good faith by the Borrower.
(h) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof (it being understood that for purposes
of this clause (h) its business includes existing telecommunications,
logistics, software, wireless data transmission and similar businesses
and in the wireless operations business).
(i) Prepayments, Etc. of Debt. (i) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt, other than (A) the prepayment of the Advances in
accordance with the terms of this Agreement, (B) regularly scheduled or
required repayments or redemptions or refinancing of the Existing Debt
set forth on Schedule 4.01(u) hereto, (C) purchases, redemptions or
other acquisitions of the Trust Convertible Preferred Securities and
securities issued pursuant to the Preferred Share Purchase Rights Plan
and other securities permitted to be issued pursuant to Section 5.02(f)
or 5.02(d)(i)(D); provided, however, that in the case of this subsection
(C), the Borrower uses the proceeds of a previous or concurrent issuance
of other capital stock permitted under Section 5.02(f) hereunder to
purchase, redeem or otherwise acquire such Trust Convertible Preferred
Securities or other securities, (D) the prepayment of Debt permitted
under Section 5.02(d), provided that such Debt is prepaid or refinanced
simultaneously therewith and the material terms, taken as a whole, of
such new Debt refinancing the existing Debt and of any agreement entered
into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the
<PAGE> 47
43
Borrower or the Lender Parties than the terms and conditions of this
Agreement, and (E) the prepayment of Debt consisting of Capital Leases
or (ii) amend, modify or change in any manner any term or condition of
any Debt which could adversely affect the interest or rights of the
Agents or the Lender Parties, or permit any of its Restricted
Subsidiaries to do any of the foregoing.
(j) Designation of Restricted and Unrestricted Subsidiaries. (i)
Designate a Subsidiary, in connection with an acquisition permitted
under Section 5.02(g) or a sale, transfer, lease or other disposition of
assets permitted under Section 5.02(e)(vii) as an Unrestricted
Subsidiary, or redesignate an Unrestricted Subsidiary as a Restricted
Subsidiary, unless, in either case, immediately before and after giving
effect thereto, no Default shall have occurred and be continuing or
would result therefrom and the Borrower shall be in pro forma compliance
(calculation based on historical financial statements most recently
furnished or required to be furnished pursuant to Section 5.01(i)) with
the covenants set forth in Section 5.03, or (ii) redesignate a
Restricted Subsidiary as an Unrestricted Subsidiary.
(k) Amendment, Etc. of Related Documents. Cancel or terminate any
Related Document or consent to or accept any cancellation or termination
thereof, amend, modify or change in any manner any term or condition of
any Related Document or give any consent, waiver or approval thereunder,
waive any default under or any breach of any term or condition of any
Related Document, agree in any manner to any other amendment,
modification or change of any term or condition of any Related Document
or take any other action in connection with any Related Document that,
in each case, would impair, in any material respect, the value of the
interest or rights of the Borrower thereunder or that would impair, in
any material respect, the rights or interest of the Agents or any Lender
Party, or permit any of its Subsidiaries to do any of the foregoing.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Borrower will:
(a) Total Debt/Total Capitalization. Maintain at the end of each
fiscal quarter a ratio of Total Debt to Total Capitalization of not more
than [*].
(b) Leverage Ratio. Maintain at the end of each fiscal quarter a
ratio of Total Debt as at such date to EBITDA for the four consecutive
fiscal quarter period ending on such date of not greater than [*].
(c) Interest Coverage Ratio. Maintain at the end of each fiscal
quarter a ratio of EBITDA to Interest Expense, in each case for the four
consecutive fiscal quarter period ending on such date, at least [*].
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower shall fail to pay
any interest on any Advance or make any other payment of fees or other
amounts payable under the Loan Documents within three Business Days
after the same becomes due and payable; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or by the Borrower (or any of its officers) in
connection with the Loan Documents shall prove to have been incorrect in
any material respect when made; or
* CONFIDENTIAL TREATMENT
REQUESTED
<PAGE> 48
44
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(c), (d), (g) or (i),
5.02 or 5.03, or (ii) the Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain unremedied
for 15 days after written notice thereof shall have been given to the
Borrower by any Agent or any Lender Party; or
(d) (i) The Borrower or any of its Restricted Subsidiaries shall
fail to make any Investment in the form of a capital contribution such
Person is required to make or fail to pay any principal of or premium or
interest on any Debt that is outstanding in a principal or notional
amount, together with the amount of such capital contribution, of at
least $30,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of the Borrower or such Restricted Subsidiary (as the case
may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, payment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt;
or any such Debt shall be declared to be due and payable, or required to
be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in
each case prior to the stated maturity thereof; or
(ii) The Borrower or any of its Subsidiaries shall fail to
make any Investment in the form of a capital contribution such
Person is required to make or fail to pay any principal of or
premium or interest on any Debt that is outstanding in a
principal or notional amount, together with the amount of such
capital contribution, of at least $50,000,000 in the aggregate
(but excluding Debt outstanding hereunder) of the Borrower or
such Subsidiary (as the case may be), when the same becomes due
and payable (whether by scheduled maturity, required prepayment,
payment, acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt;
or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be
due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof; or
(e) The Borrower or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by
or against the Borrower or any of its Subsidiaries seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of
its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$30,000,000 shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 15
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45
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect;
(g) Any non-monetary judgment or order shall be rendered against
the Borrower or any of its Subsidiaries that could be reasonably
expected to have a Material Adverse Effect, and there shall be any
period of 15 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(h) (i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act
of 1934), directly or indirectly, of Voting Stock of the Borrower (or
other securities convertible into such Voting Stock) representing 20% or
more of the combined voting power of all Voting Stock of the Borrower;
or (ii) during any period of up to 18 consecutive months, commencing
before or after the date of this Agreement, individuals who at the
beginning of such 18-month period were directors of the Borrower,
together with such directors as are approved by directors who were
directors at the beginning of such period, shall cease for any reason to
constitute a majority of the board of directors of the Borrower; or
(iii) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract
or arrangement that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower;
or
(i) Any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Borrower and the ERISA
Affiliates related to such ERISA Event) exceeds $30,000,000; or
(j) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Borrower and the ERISA Affiliates as Withdrawal Liability (determined as
of the date of such notification), exceeds $30,000,000 or requires
payments exceeding $10,000,000 per annum; or
(k) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV
of ERISA, and as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and the ERISA Affiliates
to all Multiemployer Plans that are then in reorganization or being
terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the plan years of such Multiemployer
Plans immediately preceding the plan year in which such reorganization
or termination occurs by an amount exceeding $10,000,000; or
(l) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 shall for any reason cease to be valid and
binding on or enforceable against the Borrower, or the Borrower shall so
state in writing; or
(m) there shall occur any Material Adverse Change;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender Party to make Advances (other than Letters
of Credit Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c))
and of each Issuing Bank to issue Letters of Credit to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, declare the
Advances, the Notes, if any, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the Advances,
the Notes, if any, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower and
by notice to each party required under the terms of any agreement in support of
which a Standby Letter
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of Credit is issued, request that all obligations under such agreement be
declared to be due and payable; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to the Borrower under
the Federal Bankruptcy Code, (A) the obligation of each Lender Party to make
Advances (other than Letters of Credit Advances by an Issuing Bank or a Lender
pursuant to Section 2.03(c)) and of each Issuing Bank to issue Letters of Credit
shall automatically be terminated and (B) the Advances, the Notes, if any, all
such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether they are taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding. If
at any time the Administrative Agent determines that any funds held in the L/C
Cash Collateral Account are subject to any right or claim of any Person other
than the Agents and the Lender Parties or that the total amount of such funds is
less than the aggregate Available Amount of all Letters of Credit, the Borrower
will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim.
ARTICLE VII
THE AGENTS
SECTION 7.01 Appointment and Authorization; "Agent". (a) Each Lender
Party hereby irrevocably (subject to Section 7.09) appoints, designates and
authorizes each Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto;
provided, however, that no Agent shall be required to take any action that
exposes such Agent to personal liability or that is contrary to this Agreement
or applicable law. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, no Agent shall have
any duties or responsibilities, except those expressly set forth herein, nor
shall any Agent have or be deemed to have any fiduciary relationship with any
Lender Party, and no implied covenants, functions. responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against such Agent. Without limiting the generality
of the foregoing sentence, the use of the term "agent" in this Agreement with
reference to each Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable
law. Instead, such, term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The Issuing Bank shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith until
such time and except for so long as any Agent may agree at the request of the
Required Lenders to act for such Issuing Bank with respect thereto; provided,
however, that such Issuing Bank shall have all of the benefits and immunities
(i) provided to each Agent in this Article VII with respect to any acts taken or
omissions suffered by such Issuing Bank in connection with Letters of Credit
issued by it or proposed to be Issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term "Agent", as used in this Article VII, included such Issuing Bank with
respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to such Issuing Bank.
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SECTION 7.02 Delegation of Duties. Each Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
SECTION 7.03 Liability of the Agents. None of the Agent-Related
Persons shall (i) be liable for any action taken or to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Lender Parties
for any recital, statement, representation or warranty made by the Borrower or
any Subsidiary or Affiliate of the Borrower, or any officer thereof, contained
in this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by any
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Borrower or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
Party to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records or the Borrower or any
of the Borrower's Subsidiaries or Affiliates.
SECTION 7.04 Reliance by the Agents. (a) Each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, instrument,
telegram, facsimile, telex, telecopier or telephone message, statement or other
document or writing or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Agents. Each Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lender
Parties against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Required Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lender Parties.
(b) Without limiting the generality of the foregoing, each Agent (i) may
treat the payee of any Note, if any, as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender Party that is the payee of
such Note, if any, as assignor, and an Eligible Assignee, as assignee, or, in
the case of any other Agent, such Agent has received notice from the
Administrative Agent that it has received and accepted such Assignment and
Acceptance, in each case as provided in Section 8.07, (ii) makes no warranty or
representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with any Loan Document; (iii) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
and (iv) shall not be responsible to any Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Loan Document or any other instrument or document furnished pursuant hereto.
(c) For purposes of determining compliance with the conditions specified
in Section 3.01, each Lender Party that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by any Agent to such Lender Party for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender Party.
SECTION 7.05 Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Administrative Agent for the account of the Lenders, unless
the Administrative Agent shall have received written notice from a Lender Party
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The
Administrative Agent will
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notify the Lenders of its receipt of any such notice. The Administrative Agent
shall take such action with respect to such Default or Event of Default as may
be requested by the Required Lenders in accordance with Article VI; provided,
however, that unless and until the Administrative Agent has received any such
request, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of the
Lender Parties.
SECTION 7.06 Lender Party Credit Decision. Each Lender Party
acknowledges that none of the Agent-Related Persons has made any representation
or warranty to it, and that no act by the Agent hereinafter taken, including any
review of the affairs of the Borrower and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender Party. Each Lender Party represents to each Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
the financial statements referred to in Section 4.01 and such other documents,
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Borrower hereunder. Each Lender Party also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly herein required to be furnished to the Lender Parties by
each Agent, no Agent shall have any duty or responsibility to provide any Lender
Party with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Borrower which may come into the possession of any of the Agent-Related Persons.
SECTION 7.07 Indemnification of Agents. (a) Whether or not the
transactions contemplated hereby are consummated, each Lender Party shall
indemnify upon demand the Agent-Related Persons (to the extent not reimbursed by
or on behalf of the Borrower and without limiting the obligation of the Borrower
to do so), pro rata, from and against any and all Indemnified Liabilities;
provided, however, that no Lender Party shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Liabilities resulting
solely from such Person's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party shall reimburse the Agents upon
demand for its ratable share of any costs or out-of-pocket expenses (including
Attorney Costs) incurred by the Agents in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Agents are not reimbursed for such expenses by or on behalf of
the Borrower.
(b) Each Lender Party severally agrees to indemnify each Issuing Bank
(to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Notes, if any, then held by each of them (or
if no Notes are at the time outstanding or if any Notes are held by Persons that
are not Lender Parties, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against such Issuing Bank in any way relating to or arising out of this
Agreement or any action taken or omitted by such Issuing Bank under this
Agreement (collectively, the "Issuing Bank Indemnified Costs"), provided that no
Lender Party shall be liable for any portion of the Issuing Bank Indemnified
Costs resulting from such Issuing Bank's gross negligence or willful misconduct
as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Lender Party agrees to
reimburse each Issuing Bank promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by such Issuing Bank in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that such Issuing Bank is
not reimbursed for such expenses by the Borrower.
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(c) In the case of any investigation, litigation or proceeding giving
rise to any Agent's Indemnified Liabilities or Issuing Bank's Indemnified Costs,
this Section 7.07 applies whether any such investigation, litigation or
proceeding is brought by any Agent, any Lender Party or a third party. Without
prejudice to the survival of any other agreement of any Lender Party hereunder,
the agreement, obligations and undertaking of each Lender Party contained in
this Section 7.07 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the other Loan Documents and the
resignation or replacement of the Agents.
SECTION 7.08 Agent in Individual Capacity. Each of BankAmerica,
Citibank and their Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Borrower and its Affiliates as though each of BankAmerica and
Citibank were not an Agent or an Issuing Bank hereunder and without notice to or
consent of the Lenders. The Lender Parties acknowledge that, pursuant to such
activities, BankAmerica, Citibank or their Affiliates may receive information
regarding the Borrower and its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Borrower or such
Affiliates) and acknowledge that no such Agent shall be under any obligation to
provide such information to them. With respect to its Commitment, the Advances
made by it and the Note, if any, issued to it, each of BankAmerica and Citibank
shall have the same rights and powers under this Agreement as any other Lender
Party and may exercise the same as though it were not an Agent or an Issuing
Bank.
SECTION 7.09 Successor Agent. Any Agent may, and at the request
of the Required Lenders shall, resign as an Agent upon 30 days' notice to the
Lenders. If such Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor agent for the Lender Parties which
successor agent shall be approved by the Borrower. If no successor agent is
appointed prior to the effective date of the resignation of such Agent, such
Agent may appoint, after consulting with the Lenders and the Borrower, a
successor agent from among the Lender Parties. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers, discretion, privileges and duties of the retiring Agent
and the term "Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as such Agent shall be terminated. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
VII and Section 8.04 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was an Agent under this Agreement. If no
successor agent has accepted appointment as the successor Agent by the date
which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective and
the Lender Parties shall perform all of the duties of such Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as provided
for above. Notwithstanding the foregoing, however, neither BankAmerica nor
Citibank may be removed as an Agent at the request of the Required Banks unless
BankAmerica or Citibank, as applicable, shall also simultaneously be replaced as
"Issuing Bank" hereunder pursuant to documentation in form and substance
reasonably satisfactory to BankAmerica or Citibank as applicable.
SECTION 7.10 Co-Agents. None of the Lender Parties identified on
the cover page or signature pages of this Agreement as a "co-agent" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lender Parties as such. Without
limiting the foregoing, none of the Lender Parties so identified as a "co-agent"
shall have or be deemed to have any fiduciary relationship with any other Lender
Party. Each Lender Party acknowledges that it has not relied, and will not rely,
on any of the other Lender Parties so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, if any, nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Required Lenders and the Borrower with receipt
acknowledged by the Administrative Agent, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lender Parties and the Borrower with
receipt acknowledged by the Administrative Agent, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the
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Lender Parties or subject the Lender Parties to any additional obligations, (c)
reduce the principal of, or interest on, the Notes, if any, or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes, if any, or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments, the aggregate
Available Amount of outstanding Letters of Credit or of the aggregate unpaid
principal amount of the Notes, if any, or the number of Lenders that shall be
required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 8.01; provided further that no amendment, waiver or consent
shall, unless in writing and signed by each Issuing Bank, as the case may be, in
addition to the Lender Parties required above to take such action, and the
Borrower, affect the rights or obligations of the Issuing Banks under this
Agreement; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Agents in addition to the Lenders required
above to take such action, and the Borrower, affect the rights or duties of the
Agents under this Agreement or any Note, if any.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Borrower, at its address at 6455 Lusk Boulevard, San Diego, California
92121, Attention: Treasurer; if to any Initial Lender or any Initial Issuing
Bank, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender Party, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender Party; if
to the Administrative Agent, at its address at 555 California Street - 41st
Floor, Credit Products # 9048, San Francisco, California 94194, Attention: John
J. Sullivan unless such notice is with respect to a Borrowing, Conversion or
repayment, in which case to the address of Bank of America's Agency
Administration Services #5596 at 1850 Gateway Blvd., 5th Floor, Concord, CA
94520, Attn: Myrna Lara; if to the Documentation Agent, at its address at 399
Park Avenue, New York, New York 10043, Attention: Suzanne Maccagnan; or, as to
the Borrower, the Administrative Agent or the Documentation Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when delivered
by overnight courier, telecopied, telegraphed or telexed or facsimile, be
effective when delivered to the overnight courier, telecopied, facsimile,
delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to any Agent pursuant to
Article II, III or VII shall not be effective until received by such Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes, if any, or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note, if any, shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower shall, whether
or not the transactions contemplated hereby are consummated, pay or reimburse
all reasonable fees and expenses of counsel for the Agents (including in their
capacity as Agents and Issuing Banks) promptly after demand 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 Notes, if any, any other Loan Document and any
other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including
reasonable Attorney Costs incurred by each of BankAmerica and Citibank
(including in its capacity as an Agent and an Issuing Bank) with respect
thereto; and
(b) The Borrower shall pay or reimburse the Agents and each Lender Party
within five Business Days after demand (subject to subsection 3.01(f)) for all
costs and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other Loan Document during the existence of
an Event of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans, and including in any
insolvency proceeding, bankruptcy proceeding, liquidation, winding up,
reorganization, receivership, arrangement, adjustment, protection, relief of
debtors or appellate proceeding (collectively, an "Insolvency Proceeding")).
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(c) Whether or not the transactions contemplated hereby are consummated,
the Borrower shall indemnify, defend and hold the Agent-Related Persons, each
Lender Party and each of its Affiliates and each of their respective officers,
directors, employees, counsel, agents, advisors and attorneys-in-fact (each, an
"Indemnified Party") harmless from and against any and all liabilities,
obligations, losses, claims, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including Attorney Costs) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Advances, the termination of the Letters of Credit and the
termination, resignation or replacement of any Agent or replacement of any
Lender Party) be imposed on, incurred by or asserted against any such Person in
any way relating to or arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection with) (i) this
Agreement, any Loan Document or any document contemplated by or referred to
herein, or the transactions contemplated hereby or the actual or proposed use of
proceeds of the Advances or Letters of Credit, or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, or in the case of each of clauses (i) and (ii) above,
any action taken or omitted by any such Person under or in connection with any
of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related
to or arising out of this Agreement or the Advances or Letters of Credit or the
use of the proceeds thereof, whether or not any Indemnified Party is a party
thereto and whether or not any such investigation, litigation or proceeding is
brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person, (all the foregoing in clauses (i) and
(ii) above, collectively, being the "Indemnified Liabilities"); provided, that
the Borrower shall have no obligation hereunder to any Indemnified Party with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Party as found in a final, non-appealable
judgment by a court of competent jurisdiction. The Borrower also agrees not to
assert any claim against any Agent, any Lender Party, any of their Affiliates,
or any of their respective directors, officers, employees, attorneys and agents,
on any theory of liability, for special indirect, consequential or punitive
damages arising out of or otherwise relating to the Notes, if any, this
Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances.
(d) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12,
acceleration of the Advances or maturity of the Notes, if any, pursuant to
Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender
Party other than on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), the
Borrower shall, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of
such Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
Party to fund or maintain such Advance.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14, 2.17, 2.18, 2.20 and 8.04 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under the
Notes, if any.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Advances and the Notes, if any, due and
payable pursuant to the provisions of Section 6.01, each Lender Party and each
of its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender Party or such Affiliate to
or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note, if any, held by such Lender Party, whether or not such Lender Party
shall have made any demand under this Agreement or such Note, if any, and
although such obligations may be unmatured. Each Lender Party agrees promptly to
notify the Borrower after any such set-off and application,
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provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender Party and its Affiliates
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender Party and its
Affiliates may have.
SECTION 8.06. Binding Effect; Entire Agreement. This Agreement
shall become effective (other than Section 2.01, which shall only become
effective upon satisfaction of the conditions precedent set forth in Section
3.01) when it shall have been executed by the Borrower and the Agents and when
the Documentation Agent shall have been notified by each Initial Lender and each
Initial Issuing Bank that such Initial Lender or such Initial Issuing Bank, as
the case may be, has executed it and thereafter shall be binding upon and inure
to the benefit of the Borrower, each Agent and each Lender Party and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lender Parties. This Agreement, together with the other
Loan Documents, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all previous proposals,
negotiations, representations, commitments and other communications between or
among the parties, both oral and written, with respect thereto.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
and, if demanded by the Borrower pursuant to Section 2.18, will assign to one or
more Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes, if any, held by it); provided, however, that
(i) each such assignment shall be of a constant, and not a varying, percentage
of all rights and obligations under this Agreement, (ii) except in the case of
an assignment to a Person that, immediately prior to such assignment, was a
Lender or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each
such assignment shall be to an Eligible Assignee, and (iv) the parties to each
such assignment shall execute and deliver to the Borrower for its approval
(unless an Event of Default shall have occurred and be continuing), such
approval not to be unreasonably withheld or delayed, and to the Administrative
Agent for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note, if any, subject to such assignment and a
processing and recordation fee of $3,000.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender Party hereunder and (y)
the Lender Party assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender Party's rights and obligations
under this Agreement, such Lender Party shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender
Party assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 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) such assignee will,
independently and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party 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) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each
Agent to
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take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to such Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender or an Issuing Bank, as the case may
be.
(d) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment of, and principal amount of the Advances
owing to, each Lender Party from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the Lender Parties may
treat each Person whose name is recorded in the Register as a Lender Party
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender Party at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee representing that it is an Eligible
Assignee, (and subject to the Borrower's approval, such approval not to be
unreasonably withheld) together with any Note or Notes, if any, subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower. In
the case of any assignment by a Lender, within five Business Days after its
receipt of such notice, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent in exchange for the surrendered Note, if
any, a new Note, if any, to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Lender has retained a Commitment hereunder, a new Note to
the order of the assigning Lender in an amount equal to the Commitment retained
by it hereunder. Such new Note or Notes, if any, shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, if any, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(f) Each Issuing Bank may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under the unused portion of its
Letter of Credit Commitment at any time; provided, however, that (i) except in
the case of an assignment to a Person that immediately prior to such assignment
was an Issuing Bank or an assignment of all of an Issuing Bank's rights and
obligations under this Agreement, the amount of the Letter of Credit Commitment
of the assigning Issuing Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 and shall be in an
integral multiple of $1,000,000 in excess thereof, (ii) each such assignment
shall be to an Eligible Assignee and (iii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,000.
(g) Each Lender Party may sell participations to one or more banks or
other entities that qualify as an Eligible Assignee (other than the Borrower or
any of its Affiliates) in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note, if any, or Notes, if any,
held by it); provided, however, that (i) such Lender Party's obligations under
this Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note, if any, for
all purposes of this Agreement, (iv) the Borrower, the Agents and the other
Lender Parties shall continue to deal solely and directly with such Lender Party
in connection with such Lender Party's rights and obligations under this
Agreement, (v) no participant under any such participation shall have any right
to approve any amendment or waiver of any provision of this Agreement or any
Note, if any, or any consent to any departure by the Borrower therefrom, except
to the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, the Advances and the Notes, if any, or any
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fees or other amounts payable hereunder, in each case to the extent subject to
such participation, or postpone any date fixed for any payment of principal of,
or interest on, the Advances and the Notes, if any, or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation and
(vi) such Lender Party shall give prompt notice to the Borrower of such
participations.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
relating to the Borrower received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any
Lender Party may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note, if any, held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Confidentiality. Neither any Agent nor any Lender
Party shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to such Agent's or such Lender
Party's Affiliates and their officers, directors, employees, agents, auditors,
attorneys and advisors and, as contemplated by Section 8.07(f), to actual or
prospective assignees and participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking. In the event any Lender Party is contemplating
assigning or selling a participation in all or a portion of its rights and
obligations under this Agreement to one or more Persons, prior to disclosing any
Confidential Information to such Person, such Person shall be required to
execute a confidentiality agreement in form and substance satisfactory to the
Borrower and such Person.
SECTION 8.09. No Liability of the Issuing Banks. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were
caused by (i) such Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) such Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, such
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. Governing Law. This Agreement and the Notes, if
any, shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 8.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdictions of any New York State court and any California
State court or federal court of the United States of America sitting in New York
City or San Diego,
<PAGE> 59
55
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the Notes, if any, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or any
such California State court or, to the extent permitted by law, in such federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
<PAGE> 60
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lender Parties hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Agreement or the Notes, if any,
or the actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
QUALCOMM INCORPORATED
By [SIG]
------------------------------------
Title: Executive Vice President and
Chief Financial Officer
BANK OF AMERICA N.T. & S.A.
as Administrative Agent and Syndication
Agent
By
------------------------------------
Title:
CITIBANK, N.A.
as Documentation Agent and Syndication
Agent
By
------------------------------------
Title:
<PAGE> 61
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lender Parties hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Agreement or the Notes, if any,
or the actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
QUALCOMM INCORPORATED
By
------------------------------------
Title:
BANK OF AMERICA N.T. & S.A.
as Administrative Agent and Syndication
Agent
By /s/ RICHARD E. BRYSON
------------------------------------
Title: Managing Director
CITIBANK, N.A.
as Documentation Agent and Syndication
Agent
By
------------------------------------
Title:
<PAGE> 62
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lender Parties hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Agreement or the Notes, if any,
or the actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
QUALCOMM INCORPORATED
By
------------------------------------
Title:
BANK OF AMERICA N.T. & S.A.
as Administrative Agent and Syndication
Agent
By
------------------------------------
Title:
CITIBANK, N.A.
as Documentation Agent and Syndication
Agent
By /s/ ROBERT H. JOHNSON, JR.
------------------------------------
Title: Attorney-In-Fact
<PAGE> 63
Initial Issuing Banks
BANK OF AMERICA N.T. & S.A.
as Initial Issuing Bank
By /s/ RICHARD E. BRYSON
--------------------------------
Title: Managing Director
Initial Lenders
BANK OF AMERICA N.T. & S.A.
as Initial Lender
By /s/ RICHARD E. BRYSON
--------------------------------
Title: Managing Director
<PAGE> 64
CITIBANK, N.A.
as Initial Lender
By /s/ ROBERT H. JOHNSON, JR.
---------------------------------
Title: Attorney-In-Fact
<PAGE> 65
ABN AMRO BANK N.V.
LOS ANGELES INTERNATIONAL BRANCH
By /s/ HEATHER F. BRANDT
---------------------------------
Title: Vice President
By /s/ ELLEN M. COLEMAN
---------------------------------
Title: Vice President, Director
<PAGE> 66
THE BANK OF NEW YORK
By [SIG]
---------------------------------
Title: Vice President
<PAGE> 67
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ GLENN B. ECKERT
-----------------------------------
Title: Vice President
<PAGE> 68
BANKBOSTON, N.A.
By [SIG]
---------------------------------
Title: Director
<PAGE> 69
BANQUE NATIONALE DE PARIS
By [SIG]
---------------------------------
Title: S.V.P.
By [SIG]
---------------------------------
Title: V.P.
<PAGE> 70
BARCLAYS BANK PLC
By [SIG]
---------------------------------
Title: Director
<PAGE> 71
BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By [SIG]
---------------------------------
Title: S.V.P.
By [SIG]
---------------------------------
Title: V.P.
<PAGE> 72
THE CHASE MANHATTAN BANK
By [SIG]
---------------------------------
Title: Managing Director
<PAGE> 73
CIBC INC.
By /s/ HAROLD BIRK
---------------------------------
Title: Executive Director
CIBC Oppenheimer Corp.,
As Agent
<PAGE> 74
FLEET NATIONAL BANK
By [SIG]
---------------------------------
Title: A.V.P.
<PAGE> 75
THE INDUSTRIAL BANK OF JAPAN, LIMITED
SAN FRANCISCO AGENCY
By [SIG]
----------------------------------
Title: General Manager
<PAGE> 76
KEYBANK NATIONAL ASSOCIATION
By /s/ MARY YOUNG
----------------------------------
Title: Commercial Banking Officer
<PAGE> 77
LEHMAN COMMERCIAL PAPER, INC.
By [SIG]
---------------------------------
Title: Authorized Signatory
<PAGE> 78
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By /s/ DAVID V. FOX
---------------------------------
Title: Vice President
<PAGE> 79
SANWA BANK CALIFORNIA
By /s/ DAVID L. BEALL
---------------------------------
Title: Vice President
<PAGE> 80
SOCIETE GENERALE, LOS ANGELES BRANCH
By /s/ DAVID BIRD
----------------------------------
Title: Vice President
<PAGE> 81
SCHEDULES OMITTED PURSUANT TO ITEM 601
OF REGULATION S-K
<PAGE> 82
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, ____
FOR VALUE RECEIVED, the undersigned, QUALCOMM INCORPORATED, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender's Commitment
in figures] or, if less, the aggregate principal amount of the Advances made by
the Lender to the Borrower pursuant to the Credit Agreement dated as of March
11, 1998 among the Borrower, the Lender and certain other lender parties party
thereto, Bank of America N.T. & S.A. ("BankAmerica"), as Administrative Agent
and Syndication Agent, and Citibank, N.A., as Documentation Agent and
Syndication Agent (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"; the terms defined therein being used herein as
therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to BankAmerica, as Administrative Agent, at
_________________________, _______________, _______________, in same day funds.
Each Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
QUALCOMM INCORPORATED
By___________________________
Title:
<PAGE> 83
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
====================== ==================== ==================== ==================== ===================
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
- ---------------------- -------------------- -------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
- ---------------------- -------------------- -------------------- -------------------- -------------------
====================== ==================== ==================== ==================== ===================
</TABLE>
<PAGE> 84
EXHIBIT B-1 - FORM OF
NOTICE OF BORROWING
Bank of America N.T. & S.A.,
as Administrative Agent
for the Lender Parties party
to the Credit Agreement
referred to below
[Date]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, QUALCOMM Incorporated, refers to the Credit
Agreement, dated as of March 11, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement," the terms defined therein
being used herein as therein defined), among the undersigned, certain Lender
Parties party thereto, Bank of America N.T. & S.A., as Administrative Agent and
Syndication Agent, and Citibank, N.A., as Documentation Agent and Syndication
Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the
Credit Agreement that the undersigned hereby requests a Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, ____.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is __________ month[s].]
(v) The Borrower's Designated Account for the proposed Borrowing
is _______________.
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement are correct, before and after giving effect to
the Proposed Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date other than any such
representations or warranties that, by their terms, refer to a specific
date other than the date of the Borrowing or issuance, inc which case as
of a such specific date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
QUALCOMM INCORPORATED
By_________________________________
Title:
<PAGE> 85
[Issuing Bank] EXHIBIT B-2 - FORM OF
REQUEST FOR LETTER OF CREDIT ISSUANCE
[Date]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, QUALCOMM Incorporated, refers to the Credit
Agreement, dated as of March 11, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement," the terms defined therein
being used herein as therein defined), among the undersigned, certain Lender
Parties party thereto, Bank of America N.T. & S.A., as Administrative Agent and
Syndication Agent, and Citibank, N.A., as Documentation Agent and Syndication
Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the
Credit Agreement that the undersigned hereby requests an issuance of a Letter of
Credit under the Credit Agreement, and in that connection sets forth below the
information relating to such issuance (the "Proposed Issuance") as required by
Section 2.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Issuance is _______________,
____.
(ii) The Available Amount of such Letter of Credit is $_______.
(iii) The expiration date of such Letter of Credit is
________________, ____.
(iv) The name and address of the beneficiary of such Letter of
Credit is _____________.
(v) The type of such Letter of Credit is a [Standby Letter of
Credit] [Trade Letter of Credit].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Issuance:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement are correct, before and after giving effect to
the Proposed Issuance and to the application of the proceeds therefrom,
as though made on and as of such date other than any such
representations or warranties that, by their terms, refer to a specific
date other than the date of the Borrowing or issuance, inc which case as
of a such specific date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Issuance or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
QUALCOMM INCORPORATED
By_________________________________
Title:
<PAGE> 86
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of March 11,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among QUALCOMM Incorporated, a Delaware corporation (the
"Borrower"), the Lender Parties (as defined in the Credit Agreement), Bank of
America N.T. & S.A., as administrative agent (the "Administrative Agent") and
syndication agent, and Citibank, N.A., as documentation agent and syndication
agent. Terms defined in the Credit Agreement are used herein with the same
meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, without
recourse to the Assignor, an interest in and to the Assignor's rights
and obligations under the Credit Agreement as of the date hereof equal
to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement. After
giving effect to such sale and assignment, the Assignee's Commitment and
the amount of the Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document
or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan
Document or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note, if any, held by the Assignor and requests
that the Administrative Agent exchange such Note for a new Note payable
to the order of the Assignee (if requested by such Assignee) in an
amount equal to the Commitment assumed by the Assignee pursuant hereto
or new Notes payable to the order of the Assignee in an amount equal to
the Commitment assumed by the Assignee pursuant hereto and the Assignor
in an amount equal to the Commitment retained by the Assignor under the
Credit Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon any Agent, the
Assignor or any other Lender Party 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 the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes each Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to such Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that
by the terms of the Credit Agreement are required to be performed by it
as a Lender Party; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance and
recording by the Administrative Agent, along with a processing and
recordation fee pursuant to Section 8.07(a) of the Credit Agreement. The
effective date for this Assignment and Acceptance (the "Effective Date")
shall be the date of acceptance hereof by the Administrative Agent,
unless otherwise specified on Schedule 1 hereto.
<PAGE> 87
2
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender Party thereunder
and (ii) the Assignor shall, to the extent provided in this Assignment
and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall
make all payments under the Credit Agreement and the Notes in respect of
the interest assigned hereby (including, without limitation, all
payments of principal, interest and facility fees with respect thereto)
to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of Schedule 1 to
this Assignment and Acceptance by telecopier shall be effective as
delivery of a manually executed counterpart of this Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
<PAGE> 88
Schedule 1
to
Assignment and Acceptance
<TABLE>
<S> <C>
Percentage interest assigned: _____%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of Advances assigned: $_______________
Principal amount of Note payable to Assignee: $_______________
Principal amount of Note payable to Assignor: $_______________
Effective Date*:_______________, ____
</TABLE>
[NAME OF ASSIGNOR], as Assignor
By_________________________________
Title:
Dated: _______________, ____
[NAME OF ASSIGNEE], as Assignee
By_________________________________
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved]** this
__________ day of _______________, ____
Bank of America N.T. & S.A., as Administrative Agent
By____________________________________
Title:
- ----------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(a)(vi) or (b) of the definition of "Eligible Assignee."
<PAGE> 89
2
[Approved this __________ day
of _______________, ____
QUALCOMM INCORPORATED
By
Title:]*
- ----------
* Required if the Assignee is an Eligible Assignee solely by reason of clause
(vi) of the definition of "Eligible Assignee."
<PAGE> 90
EXHIBIT E - FORM OF
COMPLIANCE CERTIFICATE
Dated as of ____________
The undersigned hereby certifies that [s]he is a Responsible
Officer of QUALCOMM, Incorporated (the "Borrower") and that as such [s]he is
authorized to execute this certificate on behalf of the Borrower. With reference
to the Credit Agreement, dated as of March 11, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Lender Parties party thereto, Bank of America N.T. & S.A., as Administrative
Agent and Syndication Agent, and Citibank, N.A., as Documentation Agent and
Syndication Agent, the undersigned further certifies, represents and warrants as
follows:
(a) attached hereto as Annex A are the calculations necessary to
confirm compliance with the covenants contained in Section 5.03 of the Credit
Agreement;
(b) attached hereto as Annex B are the financial statements
provided pursuant to Section 5.01(i)(ii) of the Credit Agreement;]
(c) no Default has occurred or is continuing;
(d) all calculations on the attached annexes are made in
accordance with GAAP; and
(e) the information contained herein is true, complete and
correct.
QUALCOMM INCORPORATED
By __________________________
Title:
<PAGE> 91
Annex A
to Compliance Certificate
1. Total Debt/Total Capitalization = Total Debt =
------------------------ -----------
Total Capitalization
Where
Total Debt = a - (b + c + d - e)
- -------- = -------- - (--------- + --------- + ---------- - ---------)
and
Total Capitalization = Total Debt + f + g + h
- ----------- = ----------- + ----------- + ----------- + -------------
and
a = Debt of Borrower and its
Restricted Subsidiaries* = _________________________
b = Trust Convertible Preferred
Securities outstanding*
(so long as no Special Event
of Default shall have
occurred or be continuing) = _________________________
c = cash* = _________________________
d = Cash Equivalents* = _________________________
e = cash and Cash Equivalents
pledged by Borrower
and its Restricted
Subsidiaries to secure Debt
of such Person up to the
amount of such Debt* = _________________________
and
f = aggregate principal amount
of Trust Convertible
Securities (or similar
instruments not included
in Total Debt)** = _________________________
+
g = [capitalized][deferred]
interest of Trust
Convertible Securities (or
similar instruments
not included in Total Debt) = _________________________
h = Consolidated shareholders' equity = _________________________
(including preferred stock)
- ----------
* Calculated on a Consolidated Basis
** Specify type of similar instrument
<PAGE> 92
2. Leverage Ratio = Total Debt =
------------------------ ----------------------
Consolidated EBITDA
3. Interest Coverage
Ratio = Consolidated EBITDA* =
------------------------------ --------------------
Interest Expense*
- ----------
* of the Borrower and its Subsidiaries
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-27-1998
<PERIOD-START> SEP-29-1997
<PERIOD-END> MAR-29-1998
<CASH> 186,974
<SECURITIES> 249,087
<RECEIVABLES> 667,955
<ALLOWANCES> 20,886
<INVENTORY> 359,695
<CURRENT-ASSETS> 1,542,207
<PP&E> 776,719
<DEPRECIATION> 258,033
<TOTAL-ASSETS> 2,455,731
<CURRENT-LIABILITIES> 640,840
<BONDS> 23,304
660,000
0
<COMMON> 7
<OTHER-SE> 1,119,901
<TOTAL-LIABILITY-AND-EQUITY> 2,455,731
<SALES> 1,546,407
<TOTAL-REVENUES> 1,546,407
<CGS> 1,087,947
<TOTAL-COSTS> 1,087,947
<OTHER-EXPENSES> 11,976
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,374
<INCOME-PRETAX> 82,779
<INCOME-TAX> 20,006
<INCOME-CONTINUING> 62,773
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 62,773
<EPS-PRIMARY> 0.91
<EPS-DILUTED> 0.85
</TABLE>
