EXHIBIT 10.25
U.S. $250,000,000
CREDIT AGREEMENT
(Long Term Facility)
Dated as of August 20, 1999
Among
CSC ENTERPRISES
as Borrower
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and
COMPUTER SCIENCES CORPORATION
as Borrower and Guarantor
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and
THE BANKS NAMED HEREIN
as Lenders
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and
CITICORP USA, INC.
as Administrative Agent
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and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Arranger
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.................... 1
Section 1.01 Certain Defined Terms............................... 1
Section 1.02 Computation of Time Periods.........................11
Section 1.03 Accounting Terms....................................11
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES...................11
Section 2.01 The A Advances......................................11
Section 2.02 Making the A Advances...............................12
Section 2.03 The B Advances......................................14
Section 2.04 Fees................................................17
Section 2.05 Termination and Reduction of the Commitments........18
Section 2.06 Repayment and Prepayment of A Advances..............18
Section 2.07 Interest on A Advances..............................19
Section 2.08 Interest Rate Determination.........................20
Section 2.09 Voluntary Conversion or Continuation of A Advances..20
Section 2.10 Increased Costs.....................................21
Section 2.11 Payments and Computations...........................22
Section 2.12 Taxes...............................................23
Section 2.13 Sharing of Payments, Etc............................24
Section 2.14 Evidence of Debt....................................25
Section 2.15 Use of Proceeds.....................................25
Section 2.16 Extension of the Commitment Termination Date........26
Section 2.17 Substitution of Lenders.............................26
Section 2.18 Increased Commitments; Additional Lenders...........27
Section 2.19 Special Purpose Funding Vehicles....................28
ARTICLE III CONDITIONS OF LENDING...............................28
Section 3.01 Condition Precedent to Effective Date...............28
Section 3.02 Conditions Precedent to Each A Borrowing............29
Section 3.03 Conditions Precedent to Each B Borrowing............30
ARTICLE IV REPRESENTATIONS AND WARRANTIES......................30
Section 4.01 Representations and Warranties of the Partnership...30
Section 4.02 Representations and Warranties of the Corporation...33
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TABLE OF CONTENTS
(continued)
Page
ARTICLE V COVENANTS...........................................36
Section 5.01 Affirmative Covenants of the Partnership............36
Section 5.03 Affirmative Covenants of the Corporation............40
Section 5.04 Negative Covenants of the Corporation...............44
ARTICLE VI EVENTS OF DEFAULT...................................46
Section 6.01 Events of Default...................................46
ARTICLE VII THE AGENT...........................................49
Section 7.01 Authorization and Action............................49
Section 7.02 Agent's Reliance, Etc...............................49
Section 7.03 CUSA and Affiliates.................................50
Section 7.04 Lender Credit Decision..............................50
Section 7.05 Indemnification.....................................50
Section 7.06 Successor Agent.....................................50
ARTICLE VIII THE GUARANTY........................................51
Section 8.01 Guaranty of the Guarantied Obligations..............51
Section 8.02 Liability of the Guarantor..........................51
Section 8.03 Waivers by the Guarantor............................53
Section 8.04 Payment by the Guarantor............................54
Section 8.05 Subrogation.........................................54
Section 8.06 Subordination of Other Obligations..................54
Section 8.07 Expenses............................................55
Section 8.08 Continuing Guaranty; Termination of Guaranty........55
Section 8.09....Authority of the Guarantor or the Partnership.......55
Section 8.10 Financial Condition of the Partnership..............55
Section 8.11 Rights Cumulative...................................55
Section 8.12 Bankruptcy; Post-Petition Interest;
Reinstatement of the Guaranty.......................55
Section 8.13 Notice of Events....................................56
Section 8.14 Set Off.............................................56
Section 8.15 Determination of the Guarantied Obligations.........57
Section 8.16 Successors and Assigns..............................57
Section 8.17 Further Assurances..................................57
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TABLE OF CONTENTS
(continued)
Page
ARTICLE IX MISCELLANEOUS.......................................57
Section 9.01 Amendments, Etc.....................................57
Section 9.02 Notices, Etc........................................58
Section 9.03 No Waiver; Remedies.................................58
Section 9.04 Costs, Expenses and Indemnification.................59
Section 9.05 Right of Set-off....................................59
Section 9.06 Binding Effect......................................60
Section 9.07 Assignments and Participations......................60
Section 9.08 Governing Law.......................................62
Section 9.09 Execution in Counterparts...........................62
Section 9.10 Consent to Jurisdiction; Waiver of Immunities.......62
Section 9.11 Waiver of Trial by Jury.............................62
Section 9.12 Limited Liability of Merel Corporation..............63
Section 9.13 Survival of Warranties..............................63
Section 9.14 Severability........................................63
Section 9.15 Headings............................................63
SCHEDULES
Schedule I List of Applicable Lending Offices
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Schedule II Property of Partnership
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Schedule III Property of Corporation
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EXHIBITS
Exhibit A-1 Form of Notice of A Borrowing
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Exhibit A-2 Form of Notice of B Borrowing
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Exhibit B Form of Assignment and Acceptance
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Exhibit C-1 Form of Opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, Counsel for the
----------- Borrower
Exhibit C-2 Form of Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Counsel for the
----------- Borrower
Exhibit D Form of Extension Request
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CREDIT AGREEMENT
(Long Term Facility)
Dated as of August 20, 1999
CSC Enterprises, a Delaware general partnership (the "Partnership"), as a
Borrower, Computer Sciences Corporation, a Nevada corporation (the
"Corporation"), as a Borrower and as the Guarantor, the financial institutions
(the "Banks") listed on the signature pages hereof, and Citicorp USA, Inc.
("CUSA"), as administrative agent (the "Agent") for the Lenders hereunder,
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms.
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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):
"A Advance" means an advance by a Lender to a Borrower as part of an A
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Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance, each
of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of A Advances of the same
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Type made on the same day to the same Borrower pursuant to the same Notice of
A Borrowing by each of the Lenders pursuant to Section 2.01.
"Adjusted Eurodollar Rate" means, for any Interest Period for each
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Eurodollar Rate Advance comprising part of the same A Borrowing, an interest
rate per annum equal to the rate per annum obtained by dividing (a) the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum,
if such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the respective
Reference Bank's (or, in the case of Citibank, CUSA's) Eurodollar Rate Advance
comprising part of such A Borrowing and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage. The Adjusted Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.08. ------- -------
"Advance" means an A Advance or a B Advance.
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"Affiliate" means, as to any Person, any other Person that, directly or
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indirectly, controls, is controlled by or is under common control with such
Person or is a director or
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executive officer (as such term is used in Regulation S-K promulgated under
the Securities Act of 1933, as amended) of such Person.
"Agreement" means this Credit Agreement, as this Credit Agreement may be
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amended, supplemented or otherwise modified from time to time.
"Applicable Lending Office" means, with respect to each Lender, such
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Lender's Domestic Lending Office in the case of a Base Rate Advance, and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance
and, in the case of a B Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office with respect to such B
Advance.
"Applicable Margin" means, for any period for which any interest payment
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is to be made with respect to any Eurodollar Rate Advance, the interest rate
per annum derived by dividing (i) the sum of the Daily Margins for each of the
days included in such period by (ii) the number of days included in such
period.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit B hereto.
"B Advance" means an advance by a Lender to a Borrower as part of a B
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Borrowing resulting from the auction bidding procedure described in Section
2.03.
"B Borrowing" means a borrowing consisting of B Advances made on the
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same day to the same Borrower pursuant to the same Notice of B Borrowing by
each of the Lenders whose offer to make one or more B Advances as part of such
borrowing has been accepted by a Borrower under the auction bidding procedure
described in Section 2.03.
"B Reduction" has the meaning specified in Section 2.01.
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"Base Rate" means, for any period, a fluctuating interest rate per annum
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as shall be in effect from time to time which rate per annum shall at all
times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum of (A) 1/2 of one percent per annum plus (B) the rate
obtained by dividing (x) the latest three-week moving average of
secondary market morning offering rates in the United States for three-
month certificates of deposit of major United States money market banks
(such three-week moving average being determined weekly by Citibank on
the basis of such rates reported by certificate of deposit dealers to
and published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank, in either case adjusted to the
nearest 1/4 of one percent or, if there is no nearest 1/4 of one
percent, to the next higher 1/4 of one percent), by (y) a percentage
equal to 100% minus the average
2
of the daily percentages specified during such three-week period by the
Board of Governors of the Federal Reserve System for determining the
maximum reserve requirement (including, but not limited to, any marginal
reserve requirements for Citibank in respect of liabilities consisting
of or including (among other liabilities) three-month nonpersonal time
deposits of at least $100,000), plus (C) the average during such three-
week period of the daily net annual assessment rates estimated by
Citibank for determining the current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation for insuring
three-month deposits in the United States; or
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an A Advance which bears interest as provided
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in Section 2.07(a).
"Borrower" means (i) the Partnership, or (ii) the Corporation, in the
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Corporation's capacity as a borrower hereunder, and "Borrowers" means both of
them, together.
"Borrowing" means an A Borrowing or a B Borrowing.
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"Business Day" means a day of the year on which banks are not required
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or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"Capital Expenditures" means, for any period, the expenditures (whether
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paid in cash or accrued as a liability) that are or are required to be
included in "capital expenditures", "additions to property, plant or
equipment" or comparable items in the consolidated statement of cash flows of
the Corporation and its Subsidiaries.
"Capital Lease" means, with respect to any Person, any lease of any
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property by that Person as lessee which would, in conformity with GAAP, be
required to be accounted for as a capital lease on the balance sheet of that
Person.
"CBI" has the meaning specified in Section 4.01(n).
---
"Citibank" means Citibank, N.A.
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"Code" means the Internal Revenue Code of 1986, as amended.
----
"Commercial Paper" means commercial paper issued by the Partnership or
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the Corporation from time to time.
"Commitment" has the meaning specified in Section 2.01.
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"Commitment Termination Date" means, with respect to any Lender, five
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years from the date of this Agreement, or such later date to which the
Commitment
3
Termination Date of such Lender may be extended from time to time pursuant to
Section 2.16 (or if any such date is not a Business Day, the next preceding
Business Day).
"Consolidated Gross Cash Flow" means, for any period, (i) the sum of (A)
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net income, plus (B) taxes on income, plus (C) net interest expense, plus (D)
---- ---- ----
depreciation expense, plus (E) amortization expense of goodwill, financing
----
costs and other intangibles, plus (F) extraordinary losses, plus (G) other
---- ----
non-cash charges to the extent deducted from net income, minus (ii) the sum
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of (A) extraordinary gains and (B) the aggregate amount of Capital
Expenditures, all of the foregoing shall be on a consolidated basis for the
Corporation and its Subsidiaries.
"Consolidated Interest Expense" means, for any period, consolidated
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total net interest expense in respect of Debt of the Corporation and its
Subsidiaries.
"Consolidated Total Capitalization" means, as of any date of
---------------------------------
determination, the sum of (a) consolidated stockholders' equity of the
Corporation and its Subsidiaries determined in accordance with GAAP and (b)
Consolidated Total Debt.
"Consolidated Total Debt" means, as of any date of determination, all
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Debt of the Corporation and its Subsidiaries on a consolidated basis.
"Convert," "Conversion" and "Converted" each refers to a conversion of
------- ---------- ---------
A Advances of one Type into A Advances of another Type pursuant to Section
2.09.
"Corporation" means Computer Sciences Corporation, a Nevada corporation,
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in its capacity as a Borrower hereunder, in its capacity as the Guarantor
hereunder or both, as the context may require.
"CSC Partners" means those partners of the Partnership which are wholly-
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owned direct or indirect Subsidiaries of the Corporation.
"Daily Margin" means, for any date of determination, the interest rate
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per annum set forth in the table below that corresponds to (i) the Level
applicable to such date of determination and (ii) the Utilization Ratio
applicable to such date of determination:
4
Daily Margin when
Utilization Ratio
Daily Margin when is greater than Daily Margin when
Utilization Ratio 0.35:1.00 but less Utilization Ratio
is equal to or than or equal to is greater than
less than 0.35:1.00 0.65:1.00 0.65:1.00
------------------- ------------------ -----------------
▇▇▇▇▇ ▇ 0.125% 0.175% 0.30%
▇▇▇▇▇ ▇ 0.15% 0.20% 0.325%
▇▇▇▇▇ ▇ 0.225% 0.325% 0.575%
▇▇▇▇▇ ▇ 0.30% 0.40% 0.65%
For purposes of this definition, (a) "Utilization Ratio" means, as of
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any date of determination, the ratio of (1) the aggregate outstanding
principal amount of all Advances as of such date to (2) the aggregate amount
of all Commitments in effect as of such date (whether used or unused and
without giving effect to any B Reduction), (b) if any change in the Rating
established by S&P or ▇▇▇▇▇'▇ shall result in a change in the Level, the
change in the Daily Margin shall be effective as of the date on which such
rating change is publicly announced (in the case of a public rating) or is
disclosed to the Corporation (in the case of a private rating), (c) if Ratings
are unavailable from both S&P and ▇▇▇▇▇'▇ for any reason for any day, then the
applicable Level for such day shall be deemed to be ▇▇▇▇▇ ▇ (or, if the
Majority Lenders consent in writing, such other Level as may be reasonably
determined by the Majority Lenders from a rating with respect to Long-Term
Debt of the Corporation for such day established by another rating agency
reasonably acceptable to the Majority Lenders) and (d) if a Rating is not
available from S&P or ▇▇▇▇▇'▇ (but not both) for any reason for any day, then
the applicable Level shall be set by reference to the Rating of S&P or ▇▇▇▇▇'▇
that is available for such day.
"Debt" means, with respect to any Person, (i) indebtedness of such
----
Person for borrowed money, (ii) obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) obligations of such
Person to pay the deferred purchase price of property or services, excluding
trade payables or accrued expenses arising in the ordinary course of business,
(iv) obligations of such Person as lessee under Capital Leases, and (v)
obligations of such Person under direct or indirect guaranties in respect of,
and obligations of such Person (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to in clauses
(i) through (iv) above, provided that "Debt" shall not include
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borrowings against the cash surrender value of life insurance policies
covering employees of Borrowers or their Affiliates and owned by the
Corporation or the Partnership so long as (x) recourse for such borrowings is
limited to such policies and the proceeds thereof and (y) any value assigned
to such policies on the consolidated financial statements of the Corporation
and its Subsidiaries is net of the amount of such borrowings.
"Domestic Lending Office" means, with respect to any Lender, the office
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of such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto
5
or in the Assignment and Acceptance pursuant to which it became a Lender, or
such other office of such Lender as such Lender may from time to time specify
to the Borrowers and the Agent.
"Effective Date" means August 20, 1999, so long as the conditions
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precedent set forth in Section 3.01 have been satisfied.
"Eligible Assignee" means any financial institution or entity engaged in
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the business of extending revolving credit approved in writing by the
Borrowers and the Agent as an Eligible Assignee for purposes of this
Agreement, provided that the Borrowers' and the Agent's approval shall not be
unreasonably withheld, and provided further that no such approval shall be
required in the case of an assignment by a Bank to an Affiliate of such Bank.
"Environmental Law" means any and all statutes, laws, regulations,
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ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions of any
federal, state or local governmental authority within the United States or any
State or territory thereof and which relate to the environment or the release
of any materials into the environment.
"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 who for purposes of Title IV of ERISA
---------------
is a member of either Borrower's controlled group, or under common control
with such Borrower, within the meaning of Section 414 of the Code and the
regulations promulgated and rulings issued thereunder.
"ERISA Event" means (i) the occurrence of a reportable event, within
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the meaning of Section 4043 of ERISA, unless the 30-day notice requirement
with respect thereto has been waived by the PBGC; (ii) the provision by the
administrator of any Pension Plan of a notice of intent to terminate such
Pension Plan 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); (iii) the cessation of operations at a facility in the circumstances
described in Section 4062(e) of ERISA; (iv) the withdrawal by either Borrower
or an 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; (v) the failure by either Borrower or any ERISA Affiliate to make a
payment to a Pension Plan required under Section 302(f)(1) of ERISA, which
Section imposes a lien for failure to make required payments; (vi) the
adoption of an amendment to a Pension Plan requiring the provision of security
to such Pension Plan, pursuant to Section 307 of ERISA; or (vii) the
institution by the PBGC of proceedings to terminate a Pension Plan, pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition which,
in the reasonable judgment of either Borrower, might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, a Pension Plan.
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"Eurocurrency Liabilities" has the meaning assigned to that term in
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Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
-------------------------
office of such Lender 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 (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may from
time to time specify to the Borrowers and the Agent.
"Eurodollar Rate Advance" means an A Advance which bears interest as
-----------------------
provided in Section 2.07(b).
"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 Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirements (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.
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"Existing Credit Agreement" means the Credit Agreement dated as of
-------------------------
September 15, 1995, among the Partnership, the Corporation, the lenders party
thereto and CUSA, as agent for such lenders, as amended.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
------------------
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such
day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Guarantied Obligations" has the meaning assigned to that term in
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Section 8.01.
"Guarantor" means the Corporation, in its capacity as the guarantor
---------
hereunder.
7
"Guaranty" shall have the meaning set forth in Section 8.01.
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"Insufficiency" means, with respect to any Pension Plan, the amount,
-------------
if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18)
of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising
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part of the same A Borrowing, the period commencing on the date of such
Eurodollar Rate Advance, or on the date of continuation of such Advance as a
Eurodollar Rate Advance upon expiration of successive Interest Periods
applicable thereto, or on the date of Conversion of a Base Rate Advance into a
Eurodollar Rate Advance, and ending on the last day of the period selected by
the applicable Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be one, two, three or six months, as the
applicable Borrower may select in the Notice of Borrowing or the Notice of
Conversion/Continuation for such Advance; provided, however, that:
(i) a Borrower may not select any Interest Period which ends
after the earliest Commitment Termination Date of any Lender then in
effect;
(ii) Interest Periods commencing on the same date for A Advances
comprising part of the same A Borrowing shall be of the same duration;
and
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided, that if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding Business
Day.
"Lenders" means the Banks listed on the signature pages hereof and each
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Eligible Assignee that shall become a party hereto pursuant to Section 9.07.
"Level" means ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ or ▇▇▇▇▇ ▇, as the case may be.
-----
"Level 1" means that, as of any date of determination, the higher of the
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Ratings is equal to or better than A+ or A1, as applicable, as of such date of
determination.
"Level 2" means that, as of any date of determination, the higher of the
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Ratings is equal to A or A2, as applicable, as of such date of determination.
"Level 3" means that, as of any date of determination, the higher of the
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Ratings is equal to A- or A3, as applicable, as of such date of determination.
"Level 4" means that, as of any date of determination, the higher of the
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Ratings is equal to or lower than BBB+ or Baa1, as applicable, as of such date
of determination, or the only Rating is a private rating and the Corporation
will not authorize the applicable rating agency to make such Rating available
to the Agent and the Lenders.
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"Lien" means any lien, mortgage, pledge, security interest, charge or
----
encumbrance of any kind (including any conditional sale or other title
retention agreement and any lease in the nature thereof).
"Long-Term Debt" means senior, unsecured, long term debt securities of
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the Corporation.
"Majority Lenders" means at any time Lenders holding greater than 50% of
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the then aggregate unpaid principal amount of the A Advances held by Lenders,
or, if no such principal amount is then outstanding, Lenders having greater
than 50% of the Commitments (provided that, for purposes hereof, neither a
Borrower, nor any of its Affiliates, if a Lender, shall be included in (i) the
Lenders holding such amount of the A Advances or having such amount of the
Commitments or (ii) determining the aggregate unpaid principal amount of the A
Advances or the total Commitments).
"Managing Partner" means CSC Enterprises, Inc., a Nevada corporation and
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an indirect wholly-owned Subsidiary of the Corporation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
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"Multiemployer Plan" means a "multiemployer plan" as defined in Section
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4001(a)(3) of ERISA to which either Borrower or any ERISA Affiliate of such
Borrower is making, or is obligated to make, contributions or has within any
of the preceding six plan years been obligated to make or accrue
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
----------------------
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of either
Borrower or an ERISA Affiliate and at least one Person other than such
Borrower and its ERISA Affiliates or (ii) was so maintained and in respect of
which either Borrower or an ERISA Affiliate could have liability under Section
4063, 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Non-Hostile Acquisition" means an acquisition (whether by purchase of
-----------------------
capital stock or assets, merger or otherwise) which has been approved by
resolutions of the Board of Directors of the Person being acquired or by
similar action if the Person is not a corporation and as to which such
approval has not been withdrawn.
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
---------------------
"Notice of a B Borrowing" has the meaning specified in Section 2.03(a).
-----------------------
"Notice of Borrowing" means the Notice of A Borrowing or the Notice of B
-------------------
Borrowing or both, as the context may require.
"Notice of Conversion/Continuation" has the meaning specified in
---------------------------------
Section 2.09.
"Partnership" means CSC Enterprises, a Delaware general partnership, in
-----------
its capacity as a Borrower hereunder.
9
"Payment in full", "paid in full" or any similar term, as used in
--------------- ------------
Article VIII hereof, means payment in full of the Guarantied Obligations
including, without limitation, all principal, interest, costs, fees and
expenses (including, without limitation, legal fees and expenses) of Lenders
and Agent as required hereunder.
"PBGC" means the U.S. Pension Benefit Guaranty Corporation.
----
"Pension Plan" means a Single Employer Plan or a Multiple Employer Plan
------------
or both.
"Person" means an individual, partnership, corporation, business trust,
------
joint stock company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Potential Event of Default" means a condition or event which, after
--------------------------
notice or lapse of time or both, would constitute an Event of Default if that
condition or event were not cured or removed within any applicable grace or
cure period.
"Rating" means a public or private rating established by S&P or Moody's
------
with respect to the Long-Term Debt or, if there is no Long-Term Debt
outstanding, a private rating established by S&P or Moody's with respect to
the Corporation.
"Reference Banks" means Citibank, ▇▇▇▇▇▇ Guaranty Trust Company of New
---------------
York and The First National Bank of Chicago.
"Register" has the meaning specified in Section 9.07(c).
--------
"S&P" means Standard & Poor's Ratings Group.
---
"SEC" means the Securities and Exchange Commission and any successor
---
agency.
"Significant Subsidiary" means, at any time, any Subsidiary of the
----------------------
Partnership or of the Corporation which accounts for more than 5% of
consolidated total assets or 5% of consolidated revenue of the Corporation and
its Subsidiaries determined in accordance with GAAP.
"Single Employer Plan" means a single employer plan, as defined in
--------------------
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of either
Borrower or any ERISA Affiliate and no Person other than such Borrower and its
ERISA Affiliates or (ii) was so maintained and in respect of which either
Borrower or an ERISA Affiliate could have liability under Section 4062 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, association,
----------
partnership or other business entity of which at least 50% of the total voting
power of shares of stock or other securities entitled to vote in the election
of directors, managers or trustees thereof is
10
at the time owned or controlled, directly or indirectly, by such Person or one
or more of the other Subsidiaries of that Person or a combination thereof.
"Termination Date" means, with respect to any Lender, the earlier of (i)
----------------
the Commitment Termination Date of such Lender and (ii) the date of
termination in whole of the Commitments of all Lenders pursuant to Section
2.05 or 6.01.
"Type" means, with reference to an A Advance, a Base Rate Advance or a
----
Eurodollar Rate Advance.
"Withdrawal Liability" has the meaning given such term under Part I of
--------------------
Subtitle E of Title IV of ERISA.
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 means "to but excluding".
Section 1.03 Accounting Terms.
----------------
All accounting terms not specifically defined herein shall be construed in
accordance with GAAP consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) or Section 4.02(e), as the
case may be. All computations determining compliance with financial covenants
or terms, including definitions used therein, shall be prepared in accordance
with generally accepted accounting principles in effect at the time of the
preparation of, and in conformity with those used to prepare, the historical
financial statements delivered to the Lenders pursuant to Section 4.01(e) or
Section 4.02(e), as the case may be. If at any time the computations for
determining compliance with financial covenants or provisions relating thereto
utilize generally accepted accounting principles different than those then
being utilized in the financial statements being delivered to the Lenders,
such financial statements shall be accompanied by a reconciliation statement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The A Advances.
--------------
Each Lender severally agrees, on the terms and conditions hereinafter set
forth, to make A Advances to either Borrower from time to time on any Business
Day during the period from the Effective Date until the Termination Date of
such Lender in an aggregate amount (together with the aggregate amount of A
Advances made to the other Borrower that is outstanding at such time) not to
exceed at any time outstanding the amount set opposite such Lender's name on
the signature pages hereof or, if such Lender has entered into any Assignment
and Acceptance, set forth for such Lender in the Register maintained by the
Agent pursuant to Section 9.07(c), as such amount may be reduced pursuant to
Section 2.05 (such Lender's "Commitment"), provided that
--------
the aggregate amount of the Commitments of the Lenders shall be deemed used
from time to time to the extent of the aggregate amount of the B Advances then
outstanding and at any time of determination, such deemed use of the aggregate
amount of the Commitments shall be applied to the Lenders ratably according to
their respective Commitments in effect at such time of determination (such
deemed use of the aggregate amount of the Commitments being a "B Reduction").
Each A Borrowing shall be in an aggregate amount not less than $5,000,000 or
an integral multiple of $1,000,000 in
11
excess thereof and shall consist of A Advances of the same Type made on the
same day to the same Borrower by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, each
Borrower may from time to time borrow, prepay pursuant to Section 2.06(d) and
reborrow under this Section 2.01.
Section 2.02 Making the A Advances.
---------------------
(a) Each A Borrowing shall be made on notice, given not later than
(x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing
consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on
the third Business Day prior to the date of a proposed A Borrowing consisting
of Eurodollar Rate Advances, by the Borrower requesting the proposed A
Borrowing to the Agent, which shall give to each Lender prompt notice thereof
by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice
of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately
in writing, in substantially the form of Exhibit A-1 hereto, specifying
therein the requested (i) date of such A Borrowing, (ii) Type of A Advances
comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and
(iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the
initial Interest Period for each such A Advance. A Borrower may, subject to
the conditions herein provided, borrow more than one A Borrowing on any
Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the
case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M.
(New York City time) in the case of a Borrowing consisting of Eurodollar Rate
Advances, in each case on the date of such A Borrowing, make available for the
account of its Applicable Lending Office to the Agent at its address referred
to in Section 9.02, in same day funds, such Lender's ratable portion of such A
Borrowing. After the Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Agent will make such
funds available to the Borrower requesting the proposed A Borrowing at the
Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for
any A Borrowing or with respect to the Conversion or continuance of any
A Borrowing if the aggregate amount of such A Borrowing or such
Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods
relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before
the date of any requested A Borrowing, notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or that any central bank or other
governmental authority asserts that it is unlawful, for such Lender or
its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate
Advances hereunder, the Commitment of such Lender to make Eurodollar
Rate Advances or to Convert all or any portion of Base Rate Advances
shall forthwith be suspended until the Agent shall notify the Borrowers
that such Lender has determined that the circumstances causing such
suspension no longer exist and such Lender's then outstanding Eurodollar
Rate Advances, if any, shall be Base Rate Advances; to the extent that
such affected Eurodollar Rate
12
Advances become Base Rate Advances, all payments of principal that would
have been otherwise applied to such Eurodollar Rate Advances shall be
applied instead to such Lender's Base Rate Advances; provided that if
Majority Lenders are subject to the same illegality or assertion of
illegality, then the right of a Borrower to select Eurodollar Rate
Advances for such A Borrowing or any subsequent A Borrowing or to
Convert all or any portion of Base Rate Advances shall forthwith be
suspended until the Agent shall notify the Borrowers that the
circumstances causing such suspension no longer exist, and each A
Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely
information to the Agent for determining the Adjusted Eurodollar Rate
for any Eurodollar Rate Advances comprising any requested A Borrowing,
the right of a Borrower to select Eurodollar Rate Advances for such A
Borrowing or any subsequent A Borrowing shall be suspended until the
Agent shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist, and each A Advance comprising
such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day
before the date of any requested A Borrowing, notify the Agent that the
Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A
Borrowing will not adequately reflect the cost to such Majority Lenders
of making, funding or maintaining their respective Eurodollar Rate
Advances for such A Borrowing, the right of a Borrower to select
Eurodollar Rate Advances for such A Borrowing or any subsequent A
Borrowing shall be suspended until the Agent shall notify the Borrowers
and the Lenders that the circumstances causing such suspension no longer
exist, and each A Advance comprising such A Borrowing shall be made as a
Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on
the Borrower requesting the proposed A Borrowing. In the case of any A
Borrowing which the related Notice of A Borrowing specifies is to be comprised
of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the A Advance to be made by such Lender as
part of such A Borrowing or by reason of the termination of hedging or other
similar arrangements, in each case when such A Advance is not made on such
date, including without limitation, as a result of any failure to fulfill on
or before the date specified in such Notice of A Borrowing for such A
Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any A Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such A Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such A Borrowing in accordance with subsection (a) of this Section 2.02 and
the Agent may, in reliance upon such assumption, make available to the
Borrower requesting the proposed A Borrowing 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 Agent, such Lender and such Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to such Borrower until the date such amount is repaid to the
Agent, at (i) in the
13
case of such Borrower, the interest rate applicable at the time to A Advances
comprising such A Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's A Advance as part
of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of
any A Borrowing.
Section 2.03 The B Advances.
--------------
(a) Each Lender severally agrees that either Borrower may make B
Borrowings under this Section 2.03 from time to time on any Business Day
during the period from the date hereof until the date occurring 30 days prior
to the latest Commitment Termination Date of any Lender then in effect in the
manner set forth below; provided that, (i) following the making of each B
Borrowing, (1) the aggregate amount of the Advances then outstanding to both
Borrowers shall not exceed the aggregate amount of the Commitments of the
Lenders then in effect (computed without regard to any B Reduction), and (2)
the aggregate amount of the B Advances scheduled to be outstanding to both
Borrowers at any time through the maturity of such B Advances shall not exceed
the aggregate amount of the Commitments of the Lenders scheduled to be in
effect at such time (computed without regard to any B Reduction), and (ii) no
Lender may make a B Advance if the maturity date of such B Advance occurs
after the Commitment Termination Date of such Lender.
(i) Either Borrower may request a B Borrowing under this
Section 2.03 by delivering to the Agent, by telecopier, telex or cable,
confirmed immediately in writing, a notice of a B Borrowing (a "Notice
of B Borrowing"), in substantially the form of Exhibit A-2 hereto,
specifying the date and aggregate amount of the proposed B Borrowing,
the maturity date for repayment of each B Advance to be made as part of
such B Borrowing (which maturity date (x) in the case of a fixed rate B
Borrowing may not be earlier than the date occurring 14 days after the
date of such B Borrowing or later than the date occurring 180 days after
the date of such B Borrowing, and (y) in the case of any other B
Borrowing may not be earlier than the date occurring 30 days after the
date of such B Borrowing or later than the date occurring 180 days after
the date of such B Borrowing), the interest payment date or dates
relating thereto, and any other terms to be applicable to such B
Borrowing, not later than 11:00 A.M. (New York City time) (A) at least
one Business Day prior to the date of the proposed B Borrowing, if such
Borrower shall specify in the Notice of B Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum and
(B) at least four Business Days prior to the date of the proposed B
Borrowing, if such Borrower shall instead specify in the Notice of B
Borrowing the basis to be used by the Lenders in determining the rates
of interest to be offered by them. A Borrower may not select a maturity
date for any B Borrowing which ends after the latest Commitment
Termination Date of any Lender then in effect. The Agent shall in turn
promptly notify each Lender of each request for a B Borrowing received
by it from a Borrower by sending such Lender a copy of the related
Notice of B Borrowing.
14
(ii) Each Lender may, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more B Advances to such
Borrower as part of such proposed B Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by notifying
the Agent (which shall give prompt notice thereof to such Borrower),
before 11:00 A.M. (New York City time) (A) on the date of such proposed
B Borrowing, in the case of a Notice of B Borrowing delivered pursuant
to clause (A) of paragraph (i) above and (B) three Business Days before
the date of such proposed B Borrowing, in the case of a Notice of B
Borrowing delivered pursuant to clause (B) of paragraph (i) above, of
the minimum amount and maximum amount of each B Advance which such
Lender would be willing to make as part of such proposed B Borrowing
(which amounts may, subject to the proviso to the first sentence of this
Section 2.03(a), exceed such Lender's Commitment), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such B Advance; provided that if the Agent in its capacity as
a Lender shall, in its sole discretion, elect to make any such offer, it
shall notify such Borrower of such offer before 10:00 A.M. (New York
City time) on the date on which notice of such election is to be given
to the Agent by the other Lenders. If any Lender shall elect not to
make such an offer, such Lender shall so notify the Agent, before 10:00
A.M. (New York City time) on the date on which notice of such election
is to be given to the Agent by the other Lenders, and such Lender shall
not be obligated to, and shall not, make any B Advance as part of such B
Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any B Advance as
part of such proposed B Borrowing.
(iii) Such Borrower shall, in turn, (A) before 12:00 noon (New
York City time) on the date of such proposed B Borrowing, in the case of
a Notice of B Borrowing delivered pursuant to clause (A) of paragraph
(i) above and (B) before 1:00 P.M. (New York City time) three Business
Days before the date of such proposed B Borrowing, in the case of a
Notice of B Borrowing delivered pursuant to clause (B) of paragraph (i)
above, either
(x) cancel such B Borrowing by giving the Agent notice to that
effect, or
(y) accept one or more of the offers made by any Lender or Lenders
pursuant to paragraph (ii) above (which acceptance shall be
irrevocable) in its sole discretion, by giving notice to the Agent
of the amount of each B Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to such Borrower by the Agent on behalf of
such Lender for such B Advance pursuant to paragraph (ii) above) to
be made by each Lender as part of such B Borrowing (provided that
the aggregate amount of such B Borrowing shall not exceed the
amount specified on the Notice of B Borrowing delivered by such
Borrower pursuant to paragraph (i) above), and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by giving
the Agent notice to that effect; provided that acceptance of offers
--------
may only be made on the basis of ascending rates for B Borrowings
of the same type and duration for up to the maximum amounts offered
by Lenders; and provided further that if offers are made by two or
-------- ------
more Lenders for the same type of B Borrowing for the same duration
and with the same rate of interest, in an aggregate amount which is
greater than the amount requested, such offers shall be accepted on
a pro rata basis based on the maximum amounts offered by such
Lenders at such rate of
15
interest.
(iv) If such Borrower notifies the Agent that such B
Borrowing is cancelled pursuant to paragraph (iii)(x) above or if such
Borrower rejects any offers made by Lenders pursuant to paragraph
(iii)(y) above, the Agent shall give prompt notice thereof to the
Lenders or affected Lenders, as the case may be, and in the case of a
cancellation, such B Borrowing shall not be made.
(v) If such Borrower accepts one or more of the offers made
by any Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent
shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such B Borrowing and whether or not any offer or offers made by such
Lender pursuant to paragraph (ii) above have been accepted by such
Borrower, (B) each Lender that is to make a B Advance as part of such B
Borrowing, of the amount of each B Advance to be made by such Lender as
part of such B Borrowing, and (C) each Lender that is to make a B
Advance as part of such B Borrowing, upon receipt, that the Agent has
received forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to make a B
Advance as part of such B Borrowing shall, before 1:00 P.M. (New York
City time) on the date of such B Borrowing specified in the notice
received from the Agent pursuant to clause (A) of the preceding sentence
or any later time when such Lender shall have received notice from the
Agent pursuant to clause (C) of the preceding sentence, make available
for the account of its Applicable Lending Office to the Agent at its
address referred to in Section 9.02 such Lender's portion of such B
Borrowing, in same day funds. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent of
such funds, the Agent will make such funds available to such Borrower at
the Agent's aforesaid address. Promptly after each B Borrowing, the
Agent will notify each Lender of the amount of the B Borrowing, the
consequent B Reduction and the dates upon which such B Reduction
commenced and will terminate.
(vi) Each Borrower agrees to pay to the Agent for the Agent's
account an auction fee in an amount agreed to in a separate letter agreement
between the Borrowers and the Agent for each Notice of B Borrowing delivered
by such Borrower to the Agent pursuant to this Section 2.03(a), whether or not
a B Borrowing is made pursuant thereto.
(b) Each B Borrowing shall be in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each B Borrowing, the Borrowers and each Lender shall
be in compliance with the limitations set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, either Borrower may from time to time borrow under this Section
2.03, repay or prepay pursuant to subsection (d) below, and reborrow under
this Section 2.03, and more than one B Borrowing may be made on a Business
Day; provided that, except for B Borrowings made on the same Business Day, a B
Borrowing shall not be made within three Business Days of the date of any
other B Borrowing.
16
(d) Each Borrower shall repay to the Agent for the account of each
Lender which has made a B Advance to such Borrower, on the maturity date of
each B Advance made to such Borrower (such maturity date being that specified
by such Borrower for repayment of such B Advance in the related Notice of B
Borrowing delivered pursuant to subsection (a)(i) above), the then unpaid
principal amount of such B Advance. Neither Borrower shall have any right to
prepay any principal amount of any B Advance unless, and then only on the
terms, specified by such Borrower for such B Advance in the related Notice of
B Borrowing delivered pursuant to subsection (a)(i) above.
(e) Each Borrower shall pay interest on the unpaid principal amount
of each B Advance made to such Borrower from the date of such B Advance to the
date the principal amount of such B Advance is repaid in full, at the rate of
interest for such B Advance specified by the Lender making such B Advance in
its notice with respect thereto delivered pursuant to subsection (a)(ii)
above, payable on the interest payment date or dates specified by such
Borrower for such B Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above; provided that any principal amount of any
B Advance which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to (A) until the stated maturity date of such B
Advance, the greater of (x) 2% per annum above the Base Rate in effect from
time to time and (y) 2% above the stated rate per annum of such B Advance, and
(B) after the stated maturity of such B Advance, 2% per annum above the Base
Rate in effect from time to time.
(f) Subject to the obligations of the Guarantor under the Guaranty,
neither Borrower shall have any obligation to repay to any Lender any B
Advance made by such Lender to the other Borrower or to pay any interest on
any B Advance made by such Lender to the other Borrower.
Section 2.04 Fees.
----
(a) Facility Fees.
-------------
The Borrowers jointly and severally agree to pay to the Agent
for the account of each Lender a facility fee on the amount of such Lender's
Commitment (or if no Commitment is in effect, Advances), whether used or
unused and without giving effect to any B Reduction, from the date hereof in
the case of each Bank and from 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 of such Lender, payable in arrears on the
last day of each March, June, September and December during the term of such
Lender's Commitment, commencing September 30, 1999, and on the Termination
Date of such Lender, in an amount equal to the product of (i) the average
daily amount of such Lender's Commitment (whether used or unused and without
giving effect to any B Reduction) in effect during the period for which such
payment that is to be made times (ii) the weighted average rate per annum that
is derived from the following rates: (a) a rate of 0.07% per annum with
respect to each day during such period that the higher of the Ratings was
▇▇▇▇▇ ▇, (▇) a rate of 0.10% per annum with respect to each day during such
period that the higher of such Ratings was Level 2, (c) a rate of 0.125% per
annum with respect to each day during such period that the higher of such
Ratings was Level 3 and (d) a rate of 0.15% per annum with respect to each day
during such period that the higher of such Ratings was Level 4. If any change
in the Rating shall result in a change in the Level, the change in the
facility fee shall be effective as of the date on which such rating change is
publicly
17
announced (in the case of a public rating) or is disclosed to the Corporation
(in the case of a private rating). If Ratings are unavailable from both S&P
or ▇▇▇▇▇'▇ for any reason for any day, then the applicable Level for purposes
of calculating the facility fee for such day shall be deemed to be ▇▇▇▇▇ ▇
(or, if the Majority Lenders consent in writing, such other Level as may be
reasonably determined by the Majority Lenders from a rating with respect to
Long-Term Debt or the Corporation for such day established by another rating
agency reasonably acceptable to the Majority Lenders). If no Rating is
available from S&P or ▇▇▇▇▇'▇ (but not both) for any reason for any day, then
the applicable Level shall be set by reference to the Rating of S&P or ▇▇▇▇▇'▇
that is available for such day.
(b) Agents' Fees.
------------
The Borrowers agree to pay to the Agent the fees payable
pursuant to the fee letter dated as of August 16, 1999 between the Borrowers
and CUSA, in the amounts and at the times specified in such letter.
Section 2.05 Termination and Reduction of the Commitments.
--------------------------------------------
(a) Mandatory Termination.
---------------------
In the event that a mandatory prepayment in full of the A
Advances is required by Section 2.06(b), the Commitments of the Lenders shall
immediately terminate.
(b) Optional Reductions.
-------------------
The Borrowers shall have the right, upon at least four Business
Days' notice to the Agent by both Borrowers, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that the aggregate amount of the Commitments of the Lenders
shall not be reduced to an amount which is less than the aggregate principal
amount of the Advances then outstanding, and provided, further, that each
partial reduction shall be in the aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof.
Section 2.06 Repayment and Prepayment of A Advances.
--------------------------------------
(a) Mandatory Repayment on Termination Date.
---------------------------------------
Each Borrower shall repay the outstanding principal amount of
each A Advance made by each Lender to such Borrower on the Termination Date of
such Lender.
(b) Mandatory Prepayment in Certain Events.
--------------------------------------
If any one of the following events shall occur:
(i) Representatives of CSC Partners shall cease to
constitute a majority of the Partnership's Partnership Committee (or
similar body which may replace such Partnership Committee) or the rights
and powers of such Partnership Committee shall be materially diminished
in a manner such that the Partnership's Partnership Committee (or
similar body which may replace such Partnership Committee) shall cease
to have substantially the same ability to control the operations or
policies of the Partnership as it has on the date hereof; or
(ii) CSC Enterprises, Inc. shall cease to be the Managing
Partner (unless the successor Managing Partner is a Subsidiary of the
Corporation of which the Corporation owns at least 80% of the voting
stock) or, if CSC Enterprises, Inc. is the Managing Partner of the
Partnership, the Corporation shall cease to own, directly or
18
indirectly, at least 80% of the voting stock of CSC Enterprises, Inc.,
or the rights and powers of the Managing Partner shall be materially
diminished in a manner such that the Managing Partner shall cease to
have substantially the same ability to control the operations or
policies of the Partnership as it has on the date hereof; or
(iii) The Partnership shall transfer a majority of its assets
to any Person other than the Corporation or one or more Subsidiaries of
the Corporation of which the Corporation owns at least 80% of the voting
stock; or
(iv) The Corporation shall cease to directly or indirectly
(through its Subsidiaries of which it owns at least 80% of the voting
stock) own more than 50% of the outstanding partnership interest of the
Partnership;
then, and in any such event, the Partnership shall immediately prepay in full
the A Advances made to the Partnership, and shall immediately make an offer to
all Lenders which have made B Advances to the Partnership to prepay such B
Advances, and shall immediately prepay in full the B Advances of all Lenders
accepting such offer, and in the case of all Advances so prepaid the
Partnership will pay interest accrued to the date of prepayment and will
reimburse the Lenders in respect thereof pursuant to Section 9.04(b).
(c) Mandatory Prepayment Due to Reductions of Commitments.
-----------------------------------------------------
Each Borrower shall from time to time prepay the A Advances made
to such Borrower to the extent necessary so that the aggregate principal
amount of the Advances does not exceed the aggregate amount of the Commitments
of the Lenders then in effect (computed without regard to any B Reduction).
(d) Voluntary Prepayments of A Borrowings.
-------------------------------------
Neither Borrower shall have any right to prepay any principal
amount of any A Advances other than as provided in this subsection (d). Each
Borrower may, upon at least one Business Day's notice to the Agent in the case
of Base Rate Advances and at least three Business Days' notice to the Agent in
the case of Eurodollar Rate Advances stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given such Borrower
shall, prepay the outstanding principal amounts of the Advances made to such
Borrower comprising part of the same A Borrowing in whole or ratably in part;
provided, however, that (x) each partial prepayment shall be
-------- -------
in an aggregate principal amount not less than $5,000,000 and integral
multiples of $1,000,000 in excess thereof and (y) in the case of any such
prepayment of any Eurodollar Rate Advance, such Borrower shall pay all accrued
interest to the date of such prepayment on the portion of such Eurodollar Rate
Advance being prepaid and shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 9.04(b).
(e) Certain Obligations Several.
---------------------------
Subject to the obligations of the Guarantor under the Guaranty,
neither Borrower shall have any obligation to repay to any Lender any A
Advance made by such Lender to the other Borrower or to pay any interest on
any A Advance made by such Lender to the other Borrower.
Section 2.07 Interest on A Advances.
----------------------
Each Borrower shall pay interest accrued on the principal amount of each A
Advance that was made to such Borrower outstanding from time to time from the
date of such A Advance until such principal amount shall be paid in full, at
the following rates per annum:
19
(a) Base Rate Advances.
------------------
If such A Advance is a Base Rate Advance, a rate per annum equal
at all times to the Base Rate in effect from time to time, payable in arrears
on the last day of each March, June, September and December during the term of
this Agreement, commencing September 30, 1999, and on the Termination Date of
the applicable Lender; provided that any amount of principal, interest, fees
and other amounts payable under this Agreement (including, without limitation,
the principal amount of Base Rate Advances, but excluding the principal amount
of Eurodollar Rate Advances and B Advances) which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear interest
from the date on which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to 2% per annum
above the Base Rate in effect from time to time.
(b) Eurodollar Rate Advances.
------------------------
If such A Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during the Interest Period for such A Advance to the sum of
the Adjusted Eurodollar Rate for such Interest Period plus the Applicable
Margin, 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 the day
which occurs during such Interest Period three months from the first day of
such Interest Period; provided that any principal amount of any Eurodollar
Rate Advance which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to (A) during the Interest Period applicable to
such Eurodollar Rate Advance, the greater of (x) 2% per annum above the Base
Rate in effect from time to time and (y) 2% per annum above the rate per annum
required to be paid on such amount immediately prior to the date on which such
amount became due and (B) after the expiration of such Interest Period, 2% per
annum above the Base Rate in effect from time to time.
Section 2.08 Interest Rate Determination.
---------------------------
(a) Each Reference Bank agrees to furnish to the Agent timely
information for the purpose of determining each Adjusted Eurodollar Rate. If
any one or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining any such interest
rate, the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks, subject to Section
2.02(b)(iv).
(b) The Agent shall give prompt notice to the Borrowers and the
Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.07(a) or 2.07(b), and the applicable rate, if any, furnished by
each Reference Bank for the purpose of determining the applicable interest
rate under Section 2.07(b).
Section 2.09 Voluntary Conversion or Continuation of A Advances.
--------------------------------------------------
(a) Each Borrower may on any Business Day, upon notice given to the
Agent not later than 12:00 noon (New York City time) on the third Business Day
prior to the date of the proposed Conversion or continuance (a "Notice of
Conversion/Continuation") and subject to the provisions of Section 2.02(b),
(1) Convert all Advances of one Type comprising the same A Borrowing made to
such Borrower into A Advances of another Type and (2) upon the expiration of
any Interest Period applicable to A Advances which are Eurodollar Rate
Advances made to such Borrower, continue all (or, subject to Section 2.02(b),
any portion of) such A Advances as Eurodollar Rate Advances and the succeeding
Interest Period(s) of such continued A Advances
20
shall commence on the last day of the Interest Period of the A Advances to be
continued; provided, however, that any Conversion of any Eurodollar Rate
-------- -------
Advances into A Advances of another Type shall be made on, and only on, the
last day of an Interest Period for such Eurodollar Rate Advances. Each such
Notice of Conversion/Continuation shall, within the restrictions specified
above, specify (i) the date of such continuation or Conversion, (ii) the A
Advances (or, subject to Section 2.02(b), any portion thereof) to be continued
or Converted, (iii) if such continuation is of, or such Conversion is into,
Eurodollar Rate Advances, the duration of the Interest Period for each such A
Advance and (iv) that no Potential Event of Default or Event of Default has
occurred and is continuing.
(b) If upon the expiration of the then existing Interest Period
applicable to any A Advance which is a Eurodollar Rate Advance made to either
Borrower, such Borrower shall not have delivered a Notice of
Conversion/Continuation in accordance with this Section 2.09, then such
Advance shall upon such expiration automatically be Converted to a Base Rate
Advance.
(c) After the occurrence of and during the continuance of a
Potential Event of Default or an Event of Default, a Borrower may not elect to
have an A Advance be made or continued as, or Converted into, a Eurodollar
Rate Advance after the expiration of any Interest Rate then in effect for that
A Advance.
Section 2.10 Increased Costs.
---------------
(a) If, due to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve requirements in
the case of Eurodollar Rate Advances included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall
be any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Eurodollar Rate Advances made to either Borrower, then
such Borrower shall from time to time, upon demand by such Lender (with a copy
of such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased
cost. A reasonably detailed certificate as to the amount and manner of
calculation of such increased cost, submitted to such Borrower and the Agent
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request 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 to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Agent), the Borrowers
shall immediately pay, jointly and severally, to the Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A reasonably detailed certificate as to such
amounts and the manner of calculation thereof submitted to the Borrowers
21
and the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
(c) If a Lender shall change its Applicable Lending Office, such
Lender shall not be entitled to receive any greater payment under Sections
2.10 and 2.12 than the amount such Lender would have been entitled to receive
if it had not changed its Applicable Lending Office, unless such change was
made at the request of a Borrower or at a time when the circumstances giving
rise to such greater payment did not exist.
Section 2.11 Payments and Computations.
-------------------------
(a) Each Borrower shall make each payment hereunder not later than
1:00 P.M. (New York City time) on the day when due in U.S. dollars to the
Agent at its address referred to in Section 9.02 in same day funds. Subject
to the immediately succeeding sentence, the Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable pursuant to
Section 2.03, 2.10 or 2.12 or, to the extent the Termination Date is not the
same for all Lenders, pursuant to Section 2.06(a)) 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 to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon receipt of
principal or interest paid after an Event of Default and an acceleration or a
deemed acceleration of amounts due hereunder, the Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest ratably in accordance with each Lender's outstanding A
Advances and B Advances (other than amounts payable pursuant to Section 2.10
or 2.12) to the Lenders for the account of their respective Applicable Lending
Offices. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 9.07(d),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder in respect of the interest
assigned thereby to the Lender 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) All computations of interest based on the Base Rate shall be
made by the 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 Adjusted Eurodollar Rate or
the Federal Funds Rate and of facility fees shall be made by the 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 or such fees are payable. Each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder 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 facility fee, as the
case may be; provided, however, 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.
22
(d) Unless the Agent shall have received notice from a Borrower
prior to the date on which any payment is due to the Lenders hereunder that
such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
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 that such Borrower shall not have so made such payment in
full to the Agent, each Lender shall repay to the 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 Agent, at the Federal Funds Rate.
Section 2.12 Taxes.
-----
(a) Any and all payments by a Borrower hereunder shall be made, in
accordance with Section 2.11, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, (i) taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Lender
or the Agent (as the case may be) is organized or any political subdivision
thereof or in which its principal office is located, (ii) taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof, (iii)
taxes imposed upon or measured by the overall net income of such Lender by the
United States of America or any political subdivision or taxing authority
thereof or therein, and (iv) United States income taxes (including withholding
taxes with respect to payments hereunder) payable with respect to payments
hereunder under laws (including without limitation any statute, treaty,
ruling, determination or regulation) in effect on the date hereof in the case
of each Bank and on the effective date of the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If a Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender or the Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrowers jointly and severally agree to pay
any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (to the extent specifically attributable
to Borrowings made by such Borrower) (including, without limitation, any Taxes
or Other Taxes (to the extent specifically attributable to Borrowings made by
such Borrower) imposed by any jurisdiction on amounts payable under this
Section 2.12) and the Borrowers jointly and severally will indemnify each
Lender and the Agent for the full amount of Taxes or Other Taxes (to the
extent not
23
specifically attributable to Borrowings made by a particular Borrower)
(including, without limitation, any Taxes or Other Taxes (to the extent not
specifically attributable to Borrowings made by a particular Borrower) imposed
by any jurisdiction on amounts payable under this Section 2.12), in each case
paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the date
such Lender or the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrowers, or either of them, will furnish to the Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender 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 Bank and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by either
Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide such Borrower with Internal Revenue Service form 1001 or 4224,
as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an income
tax treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States. If the form provided by
a Lender at the time such Lender 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" as
defined in Section 2.12(a).
(f) For any period with respect to which a Lender has failed to
provide a Borrower with the appropriate form described in Section 2.12(e)
(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, or if such
form otherwise is not required under the first sentence of subsection (e)
above), such Lender shall not be entitled to indemnification under Section
2.12(a) with respect to Taxes imposed by the United States;
provided, however, that should a Lender become subject to Taxes because of
-------- -------
its failure to deliver a form required hereunder, such Borrower shall, at the
expense of such Lender, take such steps as the Lender shall reasonably request
to assist the Lender to recover such Taxes.
(g) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.12 shall survive the payment in full of principal and
interest hereunder.
Section 2.13 Sharing of Payments, Etc.
------------------------
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of the A Advances made by it (other than pursuant to Section 2.10 or
2.12 or, to the extent the Termination Date is not the same for all Lenders,
pursuant to Section 2.06(a)) in excess of its ratable share of payments on
account of the A Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the A
Advances made by them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them, provided, however,
-------- -------
that if all or any portion of such
24
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to
the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrowers agree that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.13 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 were the direct creditor of the applicable Borrower in the amount of
such participation.
Section 2.14 Evidence of Debt.
----------------
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder. Each Borrower agrees that upon notice by
any Lender to such Borrower (with a copy of such notice to the Agent) to the
effect that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the A Advances or the B Advances owing to,
or to be made by, such Lender, such Borrower shall promptly execute and
deliver to such Lender promissory notes or other evidence of such
indebtedness, in form and substance reasonably satisfactory to such Borrower
and such Lender, payable to the order of such Lender in a principal amount
equal, in the case of the A Advances, to the aggregate principal amount of the
Commitment of such Lender and, in the case of the B Advances, to the
outstanding principal amount of B Advances of such Lender; provided, however,
that the execution and delivery of such promissory note or other evidence of
indebtedness shall not be a condition precedent to the making of any Advance
under this Agreement.
(b) The Register maintained by the Agent pursuant to Section 9.07(c)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date, amount and
tenor, as applicable, of each Borrowing, the Borrower that received the
proceeds of such Borrowing, the Type of Advances comprising such Borrowing and
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 each Borrower to
each Lender hereunder, and (iv) the amount of any sum received by the Agent
from each Borrower hereunder and each Lender's share thereof.
(c) The entries made in the Register shall be conclusive and binding
for all purposes, absent manifest error.
Section 2.15 Use of Proceeds.
---------------
(a) Advances shall be used by the Borrowers for Commercial Paper
backup, for Non-Hostile Acquisitions and for general corporate purposes.
25
(b) No portion of the proceeds of any Advances under this Agreement
shall be used by either Borrower or any of its Subsidiaries in any manner
which might cause the Advances or the application of such proceeds to violate,
or require any Lender to make any filing or take any other action under,
Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Securities Exchange Act of 1934, in each case as in effect on the date or
dates of such Advances and such use of proceeds.
Section 2.16 Extension of the Commitment Termination Date.
--------------------------------------------
The Borrowers may, not later than 30 days prior to each anniversary
of the Effective Date (the "Current Anniversary Date"), and not more than once
in any calendar year, commencing not later than 30 days prior to the first
anniversary of the Effective Date, from time to time jointly request that the
Commitment Termination Date for all Eligible Lenders (as defined below) be
extended by delivering to the Agent a copy of an extension request signed by
both Borrowers (an "Extension Request") in substantially the form of Exhibit D
hereto. The Agent shall promptly notify each Lender of its receipt of such
Extension Request. On or prior to the fifteenth day (the "Determination
Date") prior to the Current Anniversary Date, each Eligible Lender shall
notify the Agent and the Borrowers of its willingness or unwillingness to
extend its Commitment Termination Date hereunder. Any Eligible Lender that
shall fail to so notify the Agent and the Borrowers on or prior to the
Determination Date shall be deemed to have declined to so extend. In the
event that, on or prior to the Determination Date, Eligible Lenders
representing more than 50% of the aggregate amount of the Commitments of all
Eligible Lenders then in effect shall consent to such extension, the Agent
shall so advise the Lenders and the Borrowers, and, subject to execution of
documentation evidencing such extension and consents, the Commitment
Termination Date of each Eligible Lender (each a "Consenting Lender") that has
consented on or prior to the Determination Date to so extend shall be extended
to the date indicated in the Extension Request. Thereafter, (i) for each
Consenting Lender, the term "Commitment Termination Date" as used herein and
in any promissory note executed and delivered by the Borrowers pursuant to
Section 2.14 hereof, shall at all times refer to such date, unless it is later
extended pursuant to this Section 2.16, and (ii) for each Lender that is not
an Eligible Lender and for each Eligible Lender that either has declined on or
prior to the Determination Date to so extend or is deemed to have so declined,
the term "Commitment Termination Date" shall at all times refer to the date
which was the Commitment Termination Date of such Lender immediately prior to
the delivery to the Agent of such Extension Request. In the event that, as of
the Determination Date, the Consenting Lenders represent 50% or less of the
aggregate amount of the Commitments of all Eligible Lenders then in effect,
the Agent shall so advise the Lenders and the Borrowers, and none of the
Lenders' Commitment Termination Dates shall be extended to the date indicated
in the Extension Request and each Lender's Commitment Termination Date shall
continue to be the date which was the Commitment Termination Date of such
Lender immediately prior to the delivery to the Agent of such Extension
Request. For purposes of this Section 2.16, the term "Eligible Lenders"
means, with respect to any Extension Request, (i) all Lenders if no Lender's
Commitment Termination Date had been extended pursuant to this Section 2.16
prior to the delivery to the Agent of such Extension Request, and (ii) in all
other cases, those Lenders which had extended their Commitment Termination
Date in the most recent extension of any Commitment Termination Date effected
pursuant to this Section 2.16.
Section 2.17 Substitution of Lenders.
-----------------------
If any Lender requests compensation from a Borrower under Section
2.10(a) or (b) or if any Lender declines to extend
26
its Commitment Termination Date pursuant to Section 2.16, the Borrowers shall
have the right, with the assistance of the Agent, to seek one or more
substitute banks or financial institutions (which may be one or more of the
Lenders) reasonably satisfactory to the Agent and the Borrowers to purchase
the Advances and assume the Commitments of such Lender, and the Borrowers, the
Agent, such Lender, and such substitute banks or financial institutions shall
execute and deliver an appropriately completed Assignment and Acceptance
pursuant to Section 9.07(a) hereof to effect the assignment of rights to and
the assumption of obligations by such substitute banks or financial
institutions; provided that such requesting Lender shall be entitled to (i)
compensation under Section 2.10 for any costs incurred by it prior to its
replacement, (ii) payment of all A Advances of such Lender then outstanding
and all interest and fees accrued to the date of such payment, and (iii) if
any Eurodollar Rate Advances of such Lender are then outstanding, any
reimbursement which would be payable under Section 9.04(b) in connection with
a prepayment of such Eurodollar Rate Advances on such date.
Section 2.18 Increased Commitments; Additional Lenders.
-----------------------------------------
(a) No more than once per year from the Effective Date, the
Borrowers may, upon at least thirty (30) days notice to the Agent (which shall
promptly provide a copy of such notice to the Lenders), propose to increase
the aggregate amount of the Commitments in increments of $50,000,000, the
total amount of all such increases not to exceed $250,000,000 (the amount of
any such increase, the "Increased Commitments"); provided that at the time of
and after giving effect to any increase in the Commitments (and the delivery
of the applicable commitment increase notice shall constitute a representation
and warranty by the Partnership and the Corporation that on the effective date
of such increase such statements are true) (i) the Corporation's Long-Term
Debt ratings from ▇▇▇▇▇'▇ and S&P are better than or equal to Baa2 or BBB,
respectively ; (ii) the representations and warranties of the Partnership and
the Corporation contained in Article IV are correct on and as of the date of
such increase, before and after giving effect to such increase, as though made
on and as of such date, except to the extent that any such representation or
warranty expressly relates only to an earlier date, in which case they were
correct as of such earlier date; (iii) no Event of Default or Potential Event
of Default exists and is continuing ; (iv) on the date of such increase, (x)
there shall be no A Advances outstanding or all Interest Periods shall have
ended and (y) and all accrued and unpaid interest on the A Advances and all
accrued and unpaid Facility Fees shall have been paid in full and (v) after
any such increase, no Lender's Commitment shall exceed 50% of the aggregate
amount of the Commitments]. Each Lender party to this Agreement at such time
shall have the right (but no obligation), for a period of fifteen (15) days
following receipt of such notice, to elect by notice to the Borrower and the
Administrative Agent to increase its Commitment by a principal amount which
bears the same ratio to the Increased Commitments as its then Commitment bears
to the aggregate Commitments then existing.
(b) If any Lender party to this Agreement shall not elect to
increase its Commitment pursuant to subsection (a) of this Section, the
Borrowers may designate another lender or other lenders (which may be, but
need not be, one or more of the existing Lenders) which at the time agree to
(i) in the case of any such lender that is an existing Lender, increase its
Commitment and (ii) in the case of any other such lender (an "Additional
Lender"), become a party to this Agreement. The sum of the increases in the
Commitments of the existing Lenders pursuant to this subsection (b) plus the
Commitments of the Additional Lenders shall not in the aggregate exceed the
unsubscribed amount of the Increased Commitments.
27
(c) An increase in the aggregate amount of the Commitments pursuant
to this Section 2.18 shall become effective upon the receipt by the Agent of
an agreement in form and substance satisfactory to the Agent signed by the
Borrowers, by each Additional Lender and by each other Lender whose Commitment
is to be increased, setting forth the new Commitments of such Lenders and
setting forth the agreement of each Additional Lender to become a party to
this Agreement and to be bound by all the terms and provisions hereof,
together with such evidence of appropriate corporate authorization on the part
of the Borrowers with respect to the Increased Commitments and such opinions
of counsel for the Borrowers with respect to the Increased Commitments as the
Agent may reasonably request.
Section 2.19 Special Purpose Funding Vehicles.
--------------------------------
Notwithstanding anything to the contrary contained herein, any Lender, (a
"Granting Lender") may grant to a special purpose funding vehicle (an "SPC")
the option to fund all or any part of any Loan that such Granting Lender would
otherwise be obligated to fund pursuant to this Agreement; provided the (i)
nothing herein shall constitute a commitment by an SPC to fund any Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Lender shall be obligated to fund
such Loan pursuant to the terms hereof. The funding of a Loan by an SPC
hereunder shall utilize the Revolving Credit Commitment of the Granting Lender
to the same extent, and as if, such Loan were funded by such Granting Lender.
Each party hereto hereby agrees that no SPC shall be liable for any indemnity
or payment under this Agreement for which a Lender would otherwise be liable
for so long as, and to the extent, the Granting Lender provides such indemnity
or makes such payment. Notwithstanding anything to the contrary contained in
this Agreement, any SPC may disclose on a confidential basis any non-public
information relating to tits funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or guarantee to such SPC. This Section
may not be amended without the prior written consent of each Granting Lender,
all or any part of whose outstanding Loans is being funded by an SPC at the
time of such amendment.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01 Condition Precedent to Effective Date.
-------------------------------------
The effectiveness of this Agreement and the obligation of each
Lender to make its initial Advance hereunder are subject to the condition
precedent that the Agent shall have received on or before the Effective Date
the following, each (other than items (f) and (i)) dated the Effective Date,
and each in form and substance satisfactory to the Agent and in sufficient
copies for each Lender:
(a) A certificate of an authorized officer of the Managing Partner
to the effect that the copy of the Partnership's Partnership Agreement
delivered to the Agent (and available for inspection by the Lenders) is a
complete and correct copy of the Partnership's Partnership Agreement, as
amended to date.
(b) Certified copies of resolutions of the Board of Directors of the
Managing Partner of the Partnership approving this Agreement, and of all
documents evidencing other necessary partnership action and governmental
approvals, if any, with respect to this Agreement.
28
(c) A certificate of the Secretary or an Assistant Secretary of the
Managing Partner of the Partnership certifying the names and true signatures
of the officers of the Managing Partner authorized to sign this Agreement and
the other documents to be delivered by the Partnership hereunder.
(d) Certified copies of the resolutions of the Board of Directors of
the Corporation approving this Agreement, and of all documents evidencing
other necessary corporate action and governmental approvals, if any, with
respect to this Agreement;
(e) A certificate of the Secretary or an Assistant Secretary of the
Corporation certifying the names and true signatures of the officers of the
Corporation authorized to sign this Agreement and the other documents to be
delivered by the Corporation hereunder;
(f) Certified copies of Corporation's and the Managing Partner's
Certificate of Incorporation, together with good standing certificates from
the states of their respective incorporation and their respective principal
places of business, each to be dated a recent date prior to the Effective
Date;
(g) Copies of the Corporation's and the Managing Partner's Bylaws,
certified as of the Effective Date by their respective Secretary or an
Assistant Secretary;
(h) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel
for the Partnership and the Corporation, substantially in the form of Exhibit
C-1 hereto, and a favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., General Counsel
of the Corporation, substantially in the form of Exhibit C-2 hereto;
(i) Financial statements of the Corporation and its Subsidiaries
specified in Section 4.02(e);
(j) Evidence satisfactory to the Agent of (i) the absence of any
indebtedness of the Partnership or the Corporation under the Existing Credit
Agreement (including borrowings and accrued interest), (ii) the payment of
fees payable, if any, by the Partnership or the Corporation under the Existing
Credit Agreement and (iii) consent to the termination of the Existing Credit
Agreement on the Effective Date by any party thereto which is not a party
hereto.
Section 3.02 Conditions Precedent to Each A Borrowing.
----------------------------------------
The obligation of each Lender to make an A Advance on the occasion
of each A Borrowing (including the initial A Borrowing) shall be subject to
the further conditions precedent that (i) Agent shall have received a Notice
of A Borrowing with respect thereto in accordance with Section 2.02 and (ii)
on the date of such A Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of A Borrowing and the acceptance
by the applicable Borrower of the proceeds of such A Borrowing shall
constitute a representation and warranty by the Partnership and the
Corporation that on the date of such A Borrowing such statements are true):
(a) The representations and warranties of the Partnership and the
Corporation contained in Article IV are correct on and as of the date of such
A Borrowing, before and after giving effect to such A Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date,
except to the extent that any such representation or warranty
29
expressly relates only to an earlier date, in which case they were correct as
of such earlier date; and
(b) No event has occurred and is continuing, or would result from
such A Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or a Potential Event of Default.
Section 3.03 Conditions Precedent to Each B Borrowing.
----------------------------------------
The obligation of each Lender which is to make a B Advance on the
occasion of a B Borrowing (including the initial B Borrowing) to make such B
Advance as part of such B Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of B
Borrowing with respect thereto in accordance with Section 2.03 and (ii) on the
date of such B Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of B Borrowing and the acceptance by the
applicable Borrower of the proceeds of such B Borrowing shall constitute a
representation and warranty by the Partnership and the Corporation that on the
date of such B Borrowing such statements are true):
(a) The representations and warranties of the Partnership and the
Corporation contained in Article IV are correct on and as of the date of such
B Borrowing, before and after giving effect to such B Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date,
except to the extent that any such representation or warranty expressly
relates only to an earlier date, in which case they were correct as of such
earlier date, and
(b) No event has occurred and is continuing, or would result from
such B Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or a Potential Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Partnership.
-------------------------------------------------
The Partnership represents and warrants as follows:
(a) Due Organization, etc.
---------------------
The Partnership is a general partnership duly organized and
validly existing under the laws of the jurisdiction indicated at the beginning
of this Agreement.
(b) Due Authorization, etc.
----------------------
The execution, delivery and performance by the Partnership of
this Agreement are within the Partnership's partnership powers, have been duly
authorized by all necessary partnership action, and do not contravene (i) the
Partnership's Partnership Agreement or (ii) applicable law or any material
contractual restriction binding on or affecting the Partnership.
(c) Governmental Consent.
--------------------
No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Partnership of this
Agreement.
30
(d) Validity.
--------
This Agreement is the legal, valid and binding obligation of the
Partnership enforceable against the Partnership in accordance with its terms
subject to the effect of applicable bankruptcy, insolvency, arrangement,
moratorium and other similar laws affecting creditors' rights generally and to
the application of general principles of equity.
(e) Condition of the Partnership.
----------------------------
The balance sheet of the Partnership and its Subsidiaries as at
April 2, 1999, and the related statements of income and retained earnings of
the Partnership and its Subsidiaries for the fiscal year then ended, copies of
which have been furnished to each Bank, fairly present the financial condition
of the Partnership and its Subsidiaries as at such date and the results of the
operations of the Partnership and its Subsidiaries for the period ended on
such date, all in accordance with GAAP consistently applied, and as of the
Effective Date, there has been no material adverse change in the business,
condition (financial or otherwise), operations or properties of the
Partnership and its Subsidiaries, taken as a whole, since April 2, 1999,
except for any transfer of assets of the Partnership to Subsidiaries of the
Corporation of which the Corporation owns 80% or more of the voting stock.
(f) Litigation.
----------
(i) There is no pending action or proceeding against the
Partnership or any of its Subsidiaries before any court, governmental agency
or arbitrator, and (ii) to the knowledge of the Managing Partner of the
Partnership, there is no pending or threatened action or proceeding affecting
the Partnership or any of its Subsidiaries before any court, governmental
agency or arbitrator, which in either case would reasonably be expected to
materially adversely affect the financial condition or operations of the
Partnership and its Subsidiaries, taken as a whole, or which purports to
affect the legality, validity or enforceability of this Agreement.
(g) Margin Regulations.
------------------
The Partnership 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 in any manner that violates, or would
cause a violation of, Regulation T, Regulation U or Regulation X.
(h) Payment of Taxes.
----------------
The Partnership and each of its Subsidiaries have filed or
caused to be filed all material tax returns (federal, state, local and
foreign) required to be filed and paid all material amounts of taxes shown
thereon to be due, including interest and penalties, except for such taxes as
are being contested in good faith and by proper proceedings and with respect
to which appropriate reserves are being maintained by the Partnership or any
such Subsidiary, as the case may be.
(i) Governmental Regulation.
-----------------------
The Partnership is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act or the Investment Company Act of 1940, each as amended, or to any
Federal or state statute or regulation limiting its ability to incur
indebtedness for money borrowed. No Subsidiary of the Partnership is subject
to any regulation that would limit the ability of the Partnership to enter
into or perform its obligations under this Agreement.
(j) ERISA.
31
(i) No ERISA Event which might result in liability (other
than for premiums payable under Title IV of ERISA) has occurred or is
reasonably expected to occur with respect to any Pension Plan.
(ii) Schedule B (Actuarial Information) to the most recently
completed annual report (Form 5500 Series) for each Pension Plan, copies
of which have been filed with the Internal Revenue Service and furnished
to the Agent, is complete and, to the best knowledge of the Partnership,
accurate, and since the date of such Schedule B there has been no
material adverse change in the funding status of any such Pension Plan.
(iii) Neither the Partnership nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Partnership, is reasonably
expected to incur, any Withdrawal Liability to any Multiemployer Plan.
(iv) Neither the Partnership 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, to the best knowledge of the
Partnership, no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated within the meaning of Title IV of
ERISA.
(k) Disclosure.
----------
No representation or warranty of the Partnership contained in
this Agreement (including any Schedule furnished in connection herewith)
contains any untrue statement of a material fact. No other document,
certificate or written statement furnished to the Agent or any Lender by or on
behalf of the Partnership for use in connection with the transactions
contemplated by this Agreement, taken as a whole with other documents,
certificates or written statements furnished contemporaneously therewith,
contains any untrue statement of fact or omits to state a material fact (known
to the Partnership in the case of any documents not furnished by it) necessary
in order to make the statements contained therein not misleading in light of
the circumstances under which the same were made.
(l) Insurance.
---------
The Partnership and its Subsidiaries (i) have in full force
insurance coverage of their respective properties, assets and business
(including casualty, general liability, products liability and business
interruption insurance) that is (A) no less protective in any material respect
than the insurance the Partnership and its Subsidiaries have carried in
accordance with their past practices or (B) prudent given the nature of the
business of the Partnership and its Subsidiaries and the prevailing practice
among companies similarly situated or (ii) maintain a plan or plans of self-
insurance to such extent and covering such risks as is usual for companies of
comparable size engaged in the same or similar business which plan or plans
provide for, among other things, adequate reserves for the risks being self-
insured.
(m) Environmental Matters.
---------------------
(i) The Partnership and each of its Subsidiaries is in
compliance in all material respects with all Environmental Laws the non-
compliance with which could reasonably be expected to have a material adverse
effect on the financial condition or operations of the Partnership and its
Subsidiaries, taken as a whole, and (ii) there has been no "release or
threatened release of a hazardous substance" (as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq.) or any other release, emission or discharge
-- ---
into the environment of any hazardous or toxic substance, pollutant or other
materials from the Partnership's or its Subsidiaries' property other than as
permitted under applicable Environmental Law and other than those which would
32
not have a material adverse effect on the financial condition or operations of
the Partnership and its Subsidiaries, taken as a whole. Other than disposals
for which the Partnership has been indemnified in full, all "hazardous waste"
(as defined by the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq. (1976) and the regulations thereunder, 40 CFR
-- ---
Part 261 ("RCRA")) generated at the Partnership's or any Subsidiaries'
properties have in the past been and shall continue to be disposed of at sites
which maintain valid permits under RCRA and any applicable state or local
Environmental Law.
(n) Year 2000 Compliance.
--------------------
The Partnership has developed and budgeted for a comprehensive
program to address the "year 2000 problem" (that is, the inability of
computers and computer software, as well as embedded microchips in non-
computing devices, to properly perform date-sensitive functions with respect
to certain dates prior to and after December 31, 1999). The Partnership has,
to date, implemented that program substantially in accordance with its
timetable and budget. The Partnership reasonably believes that the year 2000
problem will not result in a material adverse change in the business,
condition (financial or otherwise), operations or properties of the
Partnership and its Subsidiaries, taken as a whole. The Partnership has
developed adequate contingency plans to ensure uninterrupted and unimpaired
business operation in the event of a failure of its own or a third party's
systems or equipment due to the year 2000 problem.
Section 4.02 Representations and Warranties of the Corporation.
-------------------------------------------------
The Corporation, in its capacity as a Borrower, represents and
warrants as follows, and the Corporation, in its capacity as the Guarantor, in
order to induce Lenders and Agent to accept the Guaranty and to enter into
this Agreement and to make the Advances hereunder, represents and warrants as
follows:
(a) Due Organization, etc.
---------------------
The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. The
Corporation is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions which require such qualification except to
the extent that failure to so qualify would not have a material adverse effect
on the Corporation. Each Subsidiary of the Corporation is duly organized and
validly existing under the laws of the jurisdiction of its incorporation or
formation. Each such Subsidiary is duly qualified to do business in all other
jurisdictions which require such qualification except to the extent that
failure to so qualify would not have a material adverse effect on such
Subsidiary.
(b) Due Authorization, etc.
----------------------
The execution, delivery and performance by the Corporation of
this Agreement are within the Corporation's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Corporation's certificate of incorporation or bylaws or (ii) law or any
material contractual restriction binding on or affecting the Corporation.
(c) Governmental Consent.
--------------------
No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Corporation of this
Agreement.
(d) Validity.
--------
This Agreement is the legal, valid and binding obligation of the
Corporation enforceable against the Corporation in accordance with its terms,
subject to the
33
effect of applicable bankruptcy, insolvency, arrangement, moratorium and other
similar laws affecting creditors' rights generally and to the application of
general principles of equity.
(e) Condition of the Corporation.
----------------------------
The balance sheet of the Corporation and its Subsidiaries as at
April 2, 1999, and the related statements of income and retained earnings of
the Corporation and its Subsidiaries for the fiscal year then ended, copies of
which have been furnished to each Bank, fairly present the financial condition
of the Corporation and its Subsidiaries as at such date and the results of the
operations of the Corporation and its Subsidiaries for the fiscal year ended
on such date, all in accordance with GAAP consistently applied, and as of the
Effective Date, there has been no material adverse change in the business,
condition (financial or otherwise), operations or properties of the
Corporation and its Subsidiaries, taken as a whole, since April 2, 1999.
(f) Litigation.
----------
(i) There is no pending action or proceeding against the
Corporation or any of its Subsidiaries before any court, governmental agency
or arbitrator, and (ii) to the knowledge of the Corporation, there is no
pending or threatened action or proceeding affecting the Corporation or any of
its Subsidiaries before any court, governmental agency or arbitrator, which in
either case would reasonably be expected to materially adversely affect the
financial condition or operations of the Corporation and its Subsidiaries,
taken as a whole, or which purports to affect the legality, validity or
enforceability of this Agreement.
(g) Margin Regulations.
------------------
The Corporation 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 in any manner that violates or would
cause a violation of Regulation T, Regulation U or Regulation X.
(h) Payment of Taxes.
----------------
The Corporation and each of its Subsidiaries have filed or
caused to be filed all material tax returns (federal, state, local and
foreign) required to be filed and paid all material amounts of taxes shown
thereon to be due, including interest and penalties, except for such taxes as
are being contested in good faith and by proper proceedings and with respect
to which appropriate reserves are being maintained by the Corporation or any
such Subsidiary, as the case may be.
(i) Governmental Regulation.
-----------------------
The Corporation is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act or the Investment Company Act of 1940, each as amended, or to any
Federal or state statute or regulation limiting its ability to incur
indebtedness for money borrowed. No Subsidiary of the Corporation is subject
to any regulation that would limit the ability of the Partnership or the
Corporation to enter into or perform their respective obligations under this
Agreement.
(j) ERISA.
(i) No ERISA Event which might result in liability (other
than for premiums payable under Title IV of ERISA) has occurred or is
reasonably expected to occur with respect to any Pension Plan.
34
(ii) Schedule B (Actuarial Information) to the most recently
completed annual report (Form 5500 Series) for each Pension Plan, copies
of which have been filed with the Internal Revenue Service and furnished
to the Agent, is complete and, to the best knowledge of the Corporation,
accurate, and since the date of such Schedule B there has been no
material adverse change in the funding status of any such Pension Plan.
(iii) Neither the Corporation nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Corporation, is reasonably
expected to incur, any Withdrawal Liability to any Multiemployer Plan.
(iv) Neither the Corporation 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, to the best knowledge of the
Corporation, no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated within the meaning of Title IV of
ERISA.
(k) Disclosure.
----------
No representation or warranty of the Corporation contained in
this Agreement (including any Schedule furnished in connection herewith)
contains any untrue statement of a material fact. No other document,
certificate or written statement furnished to the Agent or any Lender by or on
behalf of the Corporation for use in connection with the transactions
contemplated in this Agreement, taken as a whole with other documents,
certificates or written statements furnished contemporaneously therewith,
contains any untrue statement of fact or omits to state a material fact (known
to the Corporation in the case of any documents not furnished by it) necessary
in order to make the statements contained therein not misleading in light of
the circumstances under which the same were made.
(l) Insurance.
---------
The Corporation and its Subsidiaries (i) have in full force
insurance coverage of their respective properties, assets and business
(including casualty, general liability, products liability and business
interruption insurance) that is (A) no less protective in any material respect
than the insurance the Corporation and its Subsidiaries have carried in
accordance with their past practices or (B) prudent given the nature of the
business of the Corporation and its Subsidiaries and the prevailing practice
among companies similarly situated or (ii) maintain a plan or plans of self-
insurance to such extent and covering such risks as is usual for companies of
comparable size engaged in the same or similar business which plan or plans
provide for, among other things, adequate reserves for the risks being self-
insured.
(m) Environmental Matters.
---------------------
(i) The Corporation and each of its Subsidiaries is in
compliance in all material respects with all Environmental Laws the non-
compliance with which could reasonably be expected to have a material adverse
effect on the financial condition or operations of the Corporation and its
Subsidiaries, taken as a whole, and (ii) there has been no "release or
threatened release of a hazardous substance" (as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq.) or any other release, emission or discharge
-- ---
into the environment of any hazardous or toxic substance, pollutant or other
materials from the Corporation's or its Subsidiaries' property other than as
permitted under applicable Environmental Law and other than those which would
not have a material adverse effect on the financial condition or operations of
the Corporation and its Subsidiaries, taken as a whole. Other than disposals
for which the Corporation has been indemnified in full, all "hazardous waste"
(as defined by the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq. (1976) and the regulations thereunder,
-- ---
35
40 CFR Part 261 ("RCRA")) generated at the Corporation's or any Subsidiaries'
properties have in the past been and shall continue to be disposed of at sites
which maintain valid permits under RCRA and any applicable state or local
Environmental Law.
(n) Relationship between Corporation and Partnership; Approval of
-------------------------------------------------------------
Terms.
-----
(i) The Corporation is the owner, directly or indirectly
(through its Subsidiaries of which it owns at least 80% of the voting stock),
of more than 50% of the partnership interest of the Partnership; (ii) Lenders'
agreement to make the Advances to the Partnership is of substantial and
material benefit to the Corporation; and (iii) the Corporation has reviewed
and approved copies of this Agreement and is fully informed of the remedies
Lenders may pursue upon the occurrence of an Event of Default.
(o) Year 2000 Compliance.
--------------------
The Corporation has developed and budgeted for a comprehensive
program to address the "year 2000 problem" (that is, the inability of
computers and computer software, as well as embedded microchips in non-
computing devices, to properly perform date-sensitive functions with respect
to certain dates prior to and after December 31, 1999). The Corporation has,
to date, implemented that program substantially in accordance with its
timetable and budget. The Corporation reasonably believes that the year 2000
problem will not result in a material adverse change in the business,
condition (financial or otherwise), operations or properties of the
Corporation and its Subsidiaries, taken as a whole. The Corporation has
developed contingency plans to address a failure of its own or a third party's
systems or equipment due to the year 2000 problem.
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Partnership.
----------------------------------------
The Partnership covenants and agrees that the Partnership will, so
long as any Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, unless the Majority Lenders shall otherwise consent in
writing:
(a) Compliance with Laws, Etc.
-------------------------
Comply, and cause each of its Subsidiaries to comply, with all
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, (i) complying with all Environmental Laws and (ii) paying
before the same become delinquent all taxes, assessments and governmental
charges imposed upon it or upon its property except to the extent contested in
good faith, except where failure to so comply would not have a material
adverse effect on the business, condition (financial or otherwise), operations
or properties of the Partnership and its Subsidiaries, taken as a whole.
(b) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as available and in any event within 110 days
after the end of each fiscal year of the Partnership, a copy of the
annual audit report for such year for the Partnership and its
Subsidiaries, containing financial statements (including a consolidated
balance sheet, consolidated statements of income and partners' equity
and cash flows of the Partnership and its Subsidiaries) for such year,
accompanied by an opinion of Deloitte & Touche or other nationally
recognized independent public accountants. The opinion shall be
unqualified (as to going concern, scope of audit and disagreements over
the accounting or other treatment of offsets) and shall state that such
consolidated financial statements present fairly the financial position
of the Partnership and its Subsidiaries as at the dates indicated and
the results of their operations and cash flow for the periods indicated
in conformity with GAAP applied on a basis consistent with prior years
(except as stated therein) and that the examination by such accountants
in connection with such consolidated financial statements has been made
in accordance with generally accepted auditing standards;
36
(ii) together with each delivery of the report of the
Partnership and its Subsidiaries pursuant to subsection (i) above, a
compliance certificate for the year executed by an authorized financial
officer of the Partnership stating that the signer has reviewed the
terms of this Agreement and has made, or caused to be made under his or
her supervision, a review in reasonable detail of the transactions and
condition of the Partnership and its Subsidiaries during the accounting
period covered by such financial statements and that such review has not
disclosed the existence during or at the end of such accounting period,
and that the signer does not have knowledge of the existence as at the
date of the compliance certificate, of any condition or event that
constitutes an Event of Default or Potential Event of Default or, if any
such condition or event existed or exists, specifying the nature and
period of existence thereof and what action the Partnership has taken,
is taking and proposes to take with respect thereto;
(iii) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each Potential Event
of Default, continuing on the date of such statement, a statement of an
authorized financial officer of the Partnership setting forth details of
such Event of Default or Potential Event of Default and the action which
the Partnership has taken and proposes to take with respect thereto;
(iv) promptly after any significant change in accounting
policies or reporting practices, notice and a description in reasonable
detail of such change;
(v) promptly and in any event within 30 days after the
Partnership or any ERISA Affiliate knows or has reason to know that any
ERISA Event referred to in clause (i) of the definition of ERISA Event
with respect to any Pension Plan has occurred which might result in
liability to the PBGC a statement of the chief accounting officer of the
Partnership describing such ERISA Event and the action, if any, that the
Partnership or such ERISA Affiliate has taken or proposes to take with
respect thereto;
(vi) promptly and in any event within 10 days after the
Partnership or any ERISA Affiliate knows or has reason to know that any
ERISA Event (other than an ERISA Event referred to in (v) above) with
respect to any Pension Plan has occurred which might result in liability
to the PBGC, a statement of the chief accounting officer of the
Partnership describing such ERISA Event and the action, if any, that the
Partnership or such ERISA Affiliate has taken or proposes to take with
respect thereto;
(vii) promptly and in any event within five Business Days
after receipt thereof by the Partnership or any ERISA Affiliate from the
PBGC, copies of each notice from the PBGC of its intention to terminate
any Pension Plan or to have a trustee appointed to administer any
Pension Plan;
37
(viii) promptly and in any event within seven Business Days
after receipt thereof by the Partnership or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice received by the
Partnership or any ERISA Affiliate concerning (w) the imposition of
Withdrawal Liability by a Multiemployer Plan, (x) the determination that
a Multiemployer Plan is, or is expected to be, in reorganization within
the meaning of Title IV of ERISA, (y) the termination of a Multiemployer
Plan within the meaning of Title IV of ERISA or (z) the amount of
liability incurred, or expected to be incurred, by the Partnership or
any ERISA Affiliate in connection with any event described in clause
(w), (x) or (y) above;
(ix) promptly after the commencement thereof, notice of all
material actions, suits and proceedings before any court or government
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting the Partnership or any of its
Subsidiaries, of the type described in Section 4.01(f);
(x) promptly after the occurrence thereof, notice of (A)
any event which makes any of the representations contained in Section
4.01(m) inaccurate in any material respect or (B) the receipt by the
Partnership of any notice, order, directive or other communication from
a governmental authority alleging violations of or noncompliance with
any Environmental Law which could reasonably be expected to have a
material adverse effect on the financial condition of the Partnership
and its Subsidiaries, taken as a whole;
(xi) promptly after any change in any Rating, a notice of
such change, which notice shall specify the new Rating, the date on
which such change was publicly announced (in the case of a public
rating) or disclosed to the Corporation (in the case of a private
rating), and such other information with respect to such change as any
Lender through the Agent may reasonably request; and
(xii) such other information respecting the condition or
operations, financial or otherwise, of the Partnership or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(c) Partnership Existence, Etc.
--------------------------
The Partnership will, and will cause each of its
Subsidiaries to, at all times maintain its fundamental business and preserve
and keep in full force and effect its partnership existence (except as
permitted under Section 5.02(b) hereof) and all rights, franchises and
licenses necessary or desirable in the normal conduct of its business.
(d) Maintenance of Insurance.
------------------------
The Partnership will and will cause each of its
Subsidiaries to maintain insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks (i) as are
usually insured by companies engaged in similar businesses and (ii) with
responsible and reputable insurance companies. Notwithstanding the foregoing,
the Partnership and its Subsidiaries may maintain a plan or plans of self-
insurance to such extent and covering such risks as is usual for companies of
comparable size engaged in the same or similar business, which plans shall
include, among other things, adequate reserves for the risks that are self-
insured. On request the Partnership will advise the Agent and the Lenders
concerning any such plan or plans for self-insurance.
38
Section 5.02 Negative Covenants of the Partnership.
-------------------------------------
The Partnership covenants and agrees that, so long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, without
the written consent of the Majority Lenders:
(a) Liens, Etc.
----------
The Partnership will not create or suffer to exist, or permit
any of its Subsidiaries to create or suffer to exist, any Lien, upon or with
respect to any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to receive
income, in each case to secure or provide for the payment of any Debt of any
Person, unless the Partnership's obligations hereunder shall be secured
equally and ratably with, or prior to, any such Debt; provided however that
the foregoing restriction shall not apply to the following Liens which are
permitted:
(i) set-off rights, arising by operation of law or under
any contract entered into in the ordinary course of business, and
bankers' Liens, Liens of carriers, warehousemen, mechanics, workmen,
employees, materialmen and other Liens imposed by law;
(ii) Liens in favor of the United States of America to
secure amounts paid to the Partnership or any of its Subsidiaries as
advance or progress payments under government contracts entered into by
it so long as such Liens cover only (x) special bank accounts into which
only such advance or progress payments are deposited and (y) supplies
covered by such government contracts and material and other property
acquired for or allocated to the performance of such government
contracts;
(iii) attachment, judgment and other similar Liens arising in
connection with legal proceedings, provided that the execution or other
enforcement of such Liens is effectively stayed and the claims secured
thereby are being contested in good faith by appropriate proceedings,
and provided that any such judgment does not constitute an Event of
Default;
(iv) Liens on accounts receivable resulting from the sale of
such accounts receivable;
(v) Liens on assets of any Subsidiary of the Partnership
existing at the time such Person becomes a Subsidiary (other than any
such Lien created in contemplation of becoming a Subsidiary);
(vi) purchase money Liens upon or in any property acquired
or held by the Partnership or any Subsidiary in the ordinary course of
business to secure the purchase price of such property or to secure Debt
incurred solely for the purpose of financing the acquisition of such
property (provided that the amount of Debt secured by such Lien does not
exceed 100% of the purchase price of such property and transaction costs
relating to such acquisition) and Liens existing on such property at the
time of its acquisition (other than any such Lien created in
contemplation of such acquisition); and the interest of the lessor
thereof in any property that is subject to a Capital Lease;
(vii) Liens, other than Liens described in clauses (i)
through (vi) and in clause (ix), to secure Debt not in excess of
$75,000,000 principal amount at any time outstanding;
39
(viii) Liens resulting from any extension, renewal or
replacement (or successive extensions, renewals or replacements), in
whole or in part, of any Debt secured by any Lien referred to in clauses
(iv), (v) and (vi) so long as (x) the aggregate principal amount of any
such Debt shall not increase as a result of any such extension, renewal
or replacement and (y) Liens resulting from any such extension, renewal
or replacement shall cover only such property which secured the Debt
that is being extended, renewed or replaced; and
(ix) Liens on any of the properties described in Schedule II
hereto to secure Debt, provided that the amount of such Debt does not
exceed 100% of the fair market value of the property encumbered by such
Lien at the time such Debt is incurred.
(b) Restrictions on Fundamental Changes. The Partnership will not,
and will not permit any of its Subsidiaries to, merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or a substantial portion of
its assets (whether now owned or hereafter acquired) to any Person (other than
the Corporation or any Subsidiary of the Corporation, so long as the
Corporation, directly or indirectly, owns 80% or more of the voting stock
thereof), or enter into any partnership, joint venture, syndicate, pool or
other combination, unless (a) no Event of Default or Potential Event of
Default has occurred and is continuing or would result therefrom and (b) any
prepayment required under Section 2.06(b) has been made.
(c) Plan Terminations. The Partnership will not, and will not
permit any ERISA Affiliate to, terminate any Pension Plan so as to result in
liability of the Partnership or any ERISA Affiliate to the PBGC in excess of
$15,000,000, or permit to exist any occurrence of an event or condition which
reasonably presents a material risk of a termination by the PBGC of any
Pension Plan with respect to which the Partnership or any ERISA Affiliate
would, in the event of such termination, incur liability to the PBGC in excess
of $15,000,000.
(d) Employee Benefit Costs and Liabilities. The Partnership will
not, and will not permit any ERISA Affiliate to, create or suffer to exist,
(i) any Insufficiency with respect to a Pension Plan or any Withdrawal
Liability with respect to a Multiemployer Plan if, immediately after giving
effect thereto, such Insufficiencies and Withdrawal Liabilities of all Pension
Plans and Multiemployer Plans, respectively, of the Partnership and its ERISA
Affiliates exceeds $25,000,000 or (ii) except as provided in Section 4980B of
the Code and except as provided under the terms of any employee welfare
benefit plans provided pursuant to the terms of collective bargaining
agreements, any employee benefit plan to provide health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employee of the Partnership or any of its ERISA Affiliate unless the
Partnership and/or any of its ERISA Affiliates are permitted to terminate such
benefits pursuant to the terms of such employee benefit plan.
Section 5.03 Affirmative Covenants of the Corporation.
----------------------------------------
The Corporation covenants and agrees that the Corporation will,
unless and until all of the Advances shall have been indefeasibly paid in
full, the Commitments of the Lenders shall have terminated and all of the
Guarantied Obligations shall have been indefeasibly paid in full, unless
Majority Lenders shall otherwise consent in writing:
40
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, (i) complying with all
Environmental Laws and (ii) paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith, except where failure to
so comply would not have a material adverse effect on the business, condition
(financial or otherwise), operations or properties of the Corporation and its
Subsidiaries, taken as a whole.
(b) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days of
the end of each of the first three fiscal quarters of each fiscal year
of the Corporation, a copy of the quarterly report for such quarter for
the Corporation and its Subsidiaries, containing financial statements
(including a consolidated balance sheet, consolidated statements of
income and stockholders' equity and cash flows of the Corporation and
its Subsidiaries) for such quarter;
(ii) as soon as available and in any event within 110 days
after the end of each fiscal year of the Corporation, a copy of the
annual audit report for such year for the Corporation and its
Subsidiaries, containing financial statements (including a consolidated
balance sheet, consolidated statements of income and stockholders'
equity and cash flows of the Corporation and its Subsidiaries) for such
year, accompanied by an opinion of Deloitte & Touche or other nationally
recognized independent public accountants. The opinion shall be
unqualified (as to going concern, scope of audit and disagreements over
the accounting or other treatment of offsets) and shall state that such
consolidated financial statements present fairly the financial position
of the Corporation and its Subsidiaries as at the dates indicated and
the results of their operations and cash flow for the periods indicated
in conformity with GAAP applied on a basis consistent with prior years
(except as stated therein) and that the examination by such accountants
in connection with such consolidated financial statements has been made
in accordance with generally accepted auditing standards;
(iii) together with each delivery of the report of the
Corporation and its Subsidiaries pursuant to subsection (i) or
subsection (ii) above, a compliance certificate for the quarter or year,
as applicable, executed by an authorized financial officer of the
Corporation (A) stating, in the case of the financial statements
delivered under Section 5.03(b)(i) for such quarter, that such financial
statements fairly present the financial condition of the Corporation and
its Subsidiaries as at the dates indicated and the results of operations
of the Corporation and its Subsidiaries and cash flow for the periods
indicated in conformity with GAAP applied on a basis consistent with
prior years (except as otherwise stated therein), subject to changes
resulting from audit and normal year-end adjustment, (B) stating that
the signer has reviewed the terms of this Agreement and has made, or
caused to be made under his or her supervision, a review in reasonable
detail of the transactions and condition of the Corporation and its
Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during
or at the end of such accounting period, and that the signer does not
have knowledge of the existence as at the date of the compliance
certificate, of any condition or event that constitutes an Event of
Default or a Potential Event of Default
41
or, if any such condition or event existed or exists, specifying the
nature and period of existence thereof and what action the Corporation
has taken, is taking and proposes to take with respect thereto and (C)
demonstrating in reasonable detail compliance during (as required
thereunder) and at the end of such accounting periods with the
restrictions contained in Section 5.04(c).
(iv) together with each delivery of the Corporation's annual
report pursuant to subsection (ii) above, a written statement by the
independent public accountants giving the report thereon (so long as
delivery of such statement is not prohibited by AICPA rules) (A) stating
that their audit examination has included a review of the terms of this
Agreement as they relate to accounting matters and (B) stating whether,
in connection with their audit examination, any condition or event that
constitutes an Event of Default or a Potential Event of Default has come
to their attention, and if such a condition or event has come to their
attention, specifying the nature and period of existence thereof;
provided, that such accountants shall not be liable by reason of any
failure to obtain knowledge of any such Event of Default or Potential
Event of Default that would not be disclosed in the course of a
reasonable audit examination;
(v) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each Potential Event
of Default, continuing on the date of such statement, a statement of an
authorized financial officer of the Corporation setting forth details of
such Event of Default or Potential Event of Default and the action which
the Corporation has taken and proposes to take with respect thereto;
(vi) promptly after any significant change in accounting
policies or reporting practices, notice and a description in reasonable
detail of such change;
(vii) promptly and in any event within 30 days after the
Corporation or any ERISA Affiliate knows or has reason to know that any
ERISA Event referred to in clause (i) of the definition of ERISA Event
with respect to any Pension Plan has occurred which might result in
liability to the PBGC a statement of the chief accounting officer of the
Corporation describing such ERISA Event and the action, if any, that the
Corporation or such ERISA Affiliate has taken or proposes to take with
respect thereto;
(viii) promptly and in any event within 10 days after the
Corporation or any ERISA Affiliate knows or has reason to know that any
ERISA Event (other than an ERISA Event referred to in (v) above) with
respect to any Pension Plan has occurred which might result in liability
to the PBGC, a statement of the chief accounting officer of the
Corporation describing such ERISA Event and the action, if any, that the
Corporation or such ERISA Affiliate has taken or proposes to take with
respect thereto;
(ix) promptly and in any event within five Business Days
after receipt thereof by the Corporation or any ERISA Affiliate from the
PBGC, copies of each notice from the PBGC of its intention to terminate
any Pension Plan or to have a trustee appointed to administer any
Pension Plan;
(x) promptly and in any event within seven Business Days
after receipt thereof by the Corporation or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice received by the
Corporation or any ERISA Affiliate
42
concerning (w) the imposition of Withdrawal Liability by a Multiemployer
Plan, (x) the determination that a Multiemployer Plan is, or is expected
to be, in reorganization within the meaning of Title IV of ERISA, (y)
the termination of a Multiemployer Plan within the meaning of Title IV
of ERISA or (z) the amount of liability incurred, or expected to be
incurred, by the Corporation or any ERISA Affiliate in connection with
any event described in clause (w), (x) or (y) above;
(xi) promptly after the sending or filing thereof, copies of
all proxy statements, financial statements and reports that the
Corporation or any of its Subsidiaries sends to its stockholders
generally, and copies of all regular, periodic and special reports, and
all registration statements, that the Corporation or any of its
Subsidiaries files with the SEC or any governmental authority that may
be substituted therefor, or with any national securities exchange;
(xii) promptly after the furnishing thereof, copies of any
statement or report furnished to any other holder of the securities of
the Corporation or any of its Subsidiaries pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise
required to be furnished to the Lenders pursuant to any other clause of
this Section 5.03.
(xiii) promptly after the commencement thereof, notice of all
material actions, suits and proceedings before any court or government
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting the Corporation or any of its
Subsidiaries, of the type described in Section 4.02(f).
(xiv) promptly after the occurrence thereof, notice of (A)
any event which makes any of the representations contained in Section
4.02(l) inaccurate in any material respect or (B) the receipt by the
Corporation of any notice, order, directive or other communication from
a governmental authority alleging violations of or noncompliance with
any Environmental Law which could reasonably be expected to have a
material adverse effect on the financial condition of the Corporation
and its Subsidiaries, taken as a whole;
(xv) promptly after any change in any Rating, a notice of
such change, which notice shall specify the new Rating, the date on
which such change was publicly announced (in the case of a public
rating) or was disclosed to the Corporation (in the case of a private
rating), and such other information with respect to such change as any
Lender through Agent may reasonably request; and
(xvi) such other information respecting the condition or
operations, financial or otherwise, of the Corporation or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(c) Corporate Existence, Etc.
------------------------
The Corporation will, and will cause each of its material
Subsidiaries to, at all times maintain its fundamental business and preserve
and keep in full force and effect its corporate existence (except as permitted
under Section 5.04(b)) and all rights, franchises and licenses necessary or
desirable in the normal conduct of its business.
43
(d) Maintenance of Insurance.
------------------------
The Corporation will and will cause each of its Subsidiaries to
maintain insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks (i) as are usually
insured by companies engaged in similar businesses and (ii) with responsible
and reputable insurance companies or associations. Notwithstanding the
foregoing, the Corporation and its Subsidiaries may maintain a plan or plans
of self-insurance to such extent and covering such risks as is usual for
companies of comparable size engaged in the same or similar business, which
plans shall include, among other things, adequate reserves for the risks that
are self-insured. On request the Corporation will advise the Agent and the
Lenders concerning any such plan or plans for self-insurance.
(e) Relationship to the Partnership.
-------------------------------
The Corporation shall keep itself informed as to the status of
the transactions contemplated or referred to herein, the Partnership's
financial status and its ability to perform its obligations under this
Agreement.
Section 5.04 Negative Covenants of the Corporation.
-------------------------------------
The Corporation covenants and agrees that, unless and until all of
the Advances shall have been indefeasibly paid in full, the Commitments of the
Lenders shall have terminated and all of the Guarantied Obligations shall have
been indefeasibly paid in full, unless Majority Lenders shall otherwise
consent in writing:
(a) Liens, Etc.
----------
The Corporation will not create or suffer to exist, or permit
any of its Subsidiaries to create or suffer to exist, any Lien, upon or with
respect to any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to receive
income, in each case to secure or provide for the payment of any Debt of any
Person, unless the Corporation's obligations hereunder shall be secured
equally and ratably with, or prior to, any such Debt; provided however that
the foregoing restriction shall not apply to the following Liens which are
permitted:
(i) set-off rights, arising by operation of law or under
any contract entered into in the ordinary course of business, and
bankers' Liens, Liens of carriers, warehousemen, mechanics, workmen,
employees, materialmen and other Liens imposed by law;
(ii) Liens in favor of the United States of America to
secure amounts paid to the Corporation or any of its Subsidiaries as
advance or progress payments under government contracts entered into by
it so long as such Liens cover only (x) special bank accounts into which
only such advance or progress payments are deposited and (y) supplies
covered by such government contracts and material and other property
acquired for or allocated to the performance of such government
contracts;
(iii) attachment, judgment and other similar Liens arising in
connection with legal proceedings, provided that the execution or other
enforcement of such Liens is effectively stayed and the claims secured
thereby are being contested in good faith by appropriate proceedings,
and provided that any such judgment does not constitute an Event of
Default;
(iv) Liens on accounts receivable resulting from the sale of
such accounts receivable;
44
(v) Liens on assets of any Subsidiary of the Corporation
existing at the time such Person becomes a Subsidiary (other than any
such Lien created in contemplation of becoming a Subsidiary);
(vi) purchase money Liens upon or in any property acquired
or held by the Corporation or any Subsidiary in the ordinary course of
business to secure the purchase price of such property or to secure Debt
incurred solely for the purpose of financing the acquisition of such
property (provided that the amount of Debt secured by such Lien does not
exceed 100% of the purchase price of such property and transaction costs
relating to such acquisition) and Liens existing on such property at the
time of its acquisition (other than any such Lien created in
contemplation of such acquisition); and the interest of the lessor
thereof in any property that is subject to a Capital Lease;
(vii) Liens, other than Liens described in clauses (i)
through (vi) and in clause (ix), to secure Debt not in excess of an
aggregate of $75,000,000 principal amount at any time outstanding;
(viii) Liens resulting from any extension, renewal or
replacement (or successive extensions, renewals or replacements), in
whole or in part, of any Debt secured by any Lien referred to in clauses
(iv), (v) and (vi) so long as (x) the aggregate principal amount of any
such Debt shall not increase as a result of any such extension, renewal
or replacement and (y) Liens resulting from any such extension, renewal
or replacement shall cover only such property which secured the Debt
that is being extended, renewed or replaced; and
(ix) Liens on any of the properties described in Schedule
III hereto to secure Debt, provided that the amount of such Debt does
not exceed 100% of the fair market value of the property encumbered by
such Lien at the time such Debt is incurred.
(b) Restrictions on Fundamental Changes. The Corporation will not,
and will not permit any of its Subsidiaries to, merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or a substantial portion of
its assets (whether now owned or hereafter acquired) to any Person (other than
the Corporation or any Subsidiary of the Corporation, so long as the
Corporation, directly or indirectly, owns 80% or more of the voting stock
thereof), or enter into any partnership, joint venture, syndicate, pool or
other combination, unless (a) no Event of Default or Potential Event of
Default has occurred and is continuing or would result therefrom and (b) in
the case of any consolidation or merger involving the Corporation either (i)
the Corporation is the surviving entity or (ii) the Person surviving or
resulting from such consolidation or merger shall have assumed the obligations
of the Corporation hereunder in an agreement or instrument reasonably
satisfactory in form and substance to the Agent.
(c) Financial Covenants.
-------------------
(i) Leverage Ratio.
--------------
The Corporation will not permit at any time the ratio
of Consolidated Total Debt to Consolidated Total Capitalization to
exceed 0.45 to 1.00.
45
(ii) Minimum Interest Coverage Ratio.
-------------------------------
The Corporation will not permit the ratio of
Consolidated Gross Cash Flow for the four consecutive fiscal quarters
ending on the last day of each fiscal quarter to Consolidated Interest
Expense for such four consecutive fiscal quarters ending on the last day
of each fiscal quarter to be less than 3.50 to 1.00.
(d) Plan Terminations.
-----------------
The Corporation will not, and will not permit any ERISA
Affiliate to, terminate any Pension Plan so as to result in liability of the
Corporation or any ERISA Affiliate to the PBGC in excess of $15,000,000, or
permit to exist any occurrence of an event or condition which reasonably
presents a material risk of a termination by the PBGC of any Pension Plan with
respect to which the Corporation or any ERISA Affiliate would, in the event of
such termination, incur liability to the PBGC in excess of $15,000,000.
(e) Employee Benefit Costs and Liabilities.
--------------------------------------
The Corporation will not, and will not permit any ERISA
Affiliate to, create or suffer to exist, (i) any Insufficiency with respect to
a Pension Plan or any Withdrawal Liability with respect to a Multiemployer
Plan if, immediately after giving effect thereto, such Insufficiencies and
Withdrawal Liabilities of all Pension Plans and Multiemployer Plans,
respectively, of the Corporation and its ERISA Affiliates exceeds $25,000,000
or (ii) except as provided in Section 4980B of the Code and except as provided
under the terms of any employee welfare benefit plans provided pursuant to the
terms of collective bargaining agreements, any employee benefit plan to
provide health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employee of the Corporation or any of its
ERISA Affiliate unless the Corporation and/or any of its ERISA Affiliates are
permitted to terminate such benefits pursuant to the terms of such employee
benefit plan.
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) Either Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable or either Borrower shall fail to pay any
interest on any Advance or any fees or other amounts payable hereunder within
five days of the date due; or
(b) The Guarantor shall fail to pay any Guarantied Obligations when
the same becomes due and payable; or
(c) Any representation or warranty made by the Partnership or the
Corporation herein or by the Partnership (or any of its or the Managing
Partner's officers) or the Corporation in connection with this Agreement shall
prove to have been incorrect in any material respect when made; or
(d) The Partnership shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(c) or 5.02, or (ii) any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if the failure to perform or observe such other term,
covenant or agreement shall remain unremedied for 30 days after the
Partnership obtains knowledge of such breach; or
46
(e) The Corporation shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.03(c) or 5.04, or (ii) any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if the failure to perform or observe such other term,
covenant or agreement shall remain unremedied for 30 days after the
Corporation obtains knowledge of such breach; or
(f) The Corporation, the Partnership or any of their respective
Subsidiaries shall fail to pay any principal of or premium or interest on any
Debt which is outstanding in a principal amount of at least $35,000,000 in the
aggregate (but excluding Debt arising under this Agreement) of the
Corporation, the Partnership or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, 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 (other than by a regularly scheduled required prepayment or by a
required prepayment of insurance proceeds or by a required prepayment as a
result of formulas based on asset sales or excess cash flow), redeemed,
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
(g) The Corporation, the Partnership or any of their respective
Significant 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 Corporation, the
Partnership or any of their respective Significant 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 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 60 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 Corporation, the
Partnership or any of their respective Significant Subsidiaries shall take any
corporate or partnership action to authorize any of the actions set forth
above in this subsection (g); or
(h) Any judgment or order for the payment of money in excess of
$35,000,000 shall be rendered against the Corporation, the Partnership or any
of their respective Significant Subsidiaries and is not promptly paid by the
Corporation, the Partnership or any of their respective Significant
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 10 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;
47
(i) Any provision of the Guaranty shall for any reason cease to be
valid and binding on the Guarantor or the Guarantor shall so state in writing;
or
(j)
(i) Any ERISA Event with respect to a Pension Plan shall
have occurred and, 30 days after notice thereof shall have been given to
the Borrowers by the Agent, (x) such ERISA Event shall still exist and
(y) the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Pension Plan and the Insufficiency
of any and all other Pension Plans with respect to which an ERISA Event
shall have occurred and then exist (or in the case of a Pension Plan
with respect to which an ERISA Event described in clause (iii) through
(vi) of the definition of ERISA Event shall have occurred and then
exist, the liability related thereto) is equal to or greater than
$15,000,000; or
(ii) Either Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred an
aggregate Withdrawal Liability for all years to such Multiemployer Plan
in an amount that, when aggregated with all other amounts required to be
paid to Multiemployer Plans by such Borrower and its ERISA Affiliates as
Withdrawal Liability (determined as of the date of such notification),
exceeds $15,000,000; or
(iii) Either 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 or ERISA, if as a result of such reorganization or termination
the aggregate annual contributions of such Borrower and its 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 year of such
Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $15,000,000;
or
(k) 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 and Exchange Act of
1934, as amended), directly or indirectly, of securities of the Corporation
(or other securities convertible into such securities) representing 35% or
more of the combined voting power of all securities of the Corporation
entitled to vote in the election of directors, other than securities having
such power only by reason of the happening of a contingency; or
(l) The Corporation or any of its Subsidiaries shall be suspended or
debarred by any governmental entity from entering into any government contract
or government subcontract from otherwise engaging in any business relating to
government contracts or from participation in government non-procurement
programs, and such suspension or debarment could reasonably be expected to
have a material adverse effect on the business, condition (financial or
otherwise), operations or properties of the Corporation and its Subsidiaries,
taken as a whole; then, and in any such event, the Agent (i) shall at the
request, or may with the consent, of the Majority Lenders, by notice to the
Borrowers, declare the obligation of each Lender to make
48
Advances to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Majority Lenders,
by notice to the Borrowers, declare the Advances, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances, 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 here expressly waived by the
Borrowers; provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to the Corporation, the Partnership or any
of their respective Subsidiaries under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances shall automatically be terminated
and (B) the Advances, 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 Borrowers.
ARTICLE VII
THE AGENT
Section 7.01 Authorization and Action.
------------------------
Each Lender hereby appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such powers
as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement (including, without limitation, enforcement or
collection of the Advances and other amounts owing hereunder), the Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders; provided,
however, that the Agent shall not be required to take any
-------- -------
action which exposes the Agent to personal liability or which is contrary to
this Agreement or applicable law. The Agent agrees to give to each Lender
prompt notice of each notice given to it by either Borrower pursuant to the
terms of this Agreement.
Section 7.02 Agent's Reliance, Etc.
---------------------
Neither the Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Agent: (i) may treat the payee of any Advance as the
holder thereof until the Agent receives and accepts an Assignment and
Acceptance entered into by the Lender which is the payee of such Advance, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(ii) may consult with legal counsel (including counsel for the Borrowers),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether
written or oral) made in or in connection with this Agreement; (iv) 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 Partnership or the Corporation or to inspect the property (including the
books and records) of the Partnership or the Corporation; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate
49
or other instrument or writing (which may be by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
Section 7.03 CUSA and Affiliates.
-------------------
With respect to its Commitment, the Advances made by it, CUSA shall
have the same rights and powers under this Agreement as any other Lender and
may exercise the same as though it were not the Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include CUSA in its
individual capacity. CUSA and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrowers, any of their respective subsidiaries and any
Person who may do business with or own securities of either Borrower or any
such subsidiary, all as if CUSA were not the Agent and without any duty to
account therefor to the Lenders.
Section 7.04 Lender Credit Decision.
----------------------
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender 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 credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender
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.
Section 7.05 Indemnification.
---------------
The Lenders agree to indemnify the Agent (to the extent not
reimbursed by the Borrowers), ratably according to the respective principal
amounts of the A Advances then held by each of them (or if no A Advances are
at the time outstanding or if any A Advances are held by Persons which are not
Lenders, 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 which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Agent under this Agreement, provided that
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any out-of-
pocket expenses (including counsel fees) incurred by the Agent in connection
with the preparation, execution, delivery, administration, syndication,
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 the Agent is not
reimbursed for such expenses by the Borrowers.
Section 7.06 Successor Agent.
---------------
The Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrowers and may be removed at any time with or without
cause by the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Majority Lenders' removal of
the retiring Agent, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent
50
which shall be a commercial bank organized under the laws of the United States
of America or of any State thereof or any Bank and, in each case having a
combined capital and surplus of at least $50,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
THE GUARANTY
Section 8.01 Guaranty of the Guarantied Obligations.
--------------------------------------
The Guarantor hereby irrevocably and unconditionally guaranties, as
primary obligor and not merely as surety, the due and punctual payment in full
of all Guarantied Obligations when and as the same shall become due, whether
at stated maturity, by required prepayment or declaration of (or in certain
circumstances automatic) acceleration (including amounts that would become due
but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. Section 362(a)). The term "Guarantied Obligations"
is used herein in its most comprehensive sense and includes:
(a) any and all obligations of the Partnership in respect of notes,
advances, borrowings, loans, debts, interest, fees, costs, expenses
(including, without limitation, legal fees and expenses of counsel),
indemnities and liabilities of whatsoever nature now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or
unliquidated, whether due or not due, arising under or in connection with this
Agreement, including those arising under successive borrowing transactions
under this Agreement which shall either continue such obligations of the
Partnership or from time to time renew them after they have been satisfied;
and
(b) those expenses set forth in Section 8.07 hereof.
This Article VIII, as it may be amended, amended and restated, supplemented or
otherwise modified from time to time, is sometimes referred to herein as the
"Guaranty" or this "Guaranty".
Section 8.02 Liability of the Guarantor.
--------------------------
The Guarantor agrees that its obligations hereunder are irrevocable,
absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor
or surety other than indefeasible payment in full of the Guarantied
Obligations. In furtherance of the foregoing and without limiting the
generality thereof, the Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) The obligations of the Guarantor hereunder are independent of
the obligations of the Partnership hereunder and the obligations of any other
guarantor of the obligations of the Partnership hereunder, and a separate
action or actions may be brought and prosecuted against the Guarantor whether
or not any action is brought against the Partnership or any of such other
guarantors and whether or not the Partnership is joined in any such action or
actions.
51
(c) The Guarantor's payment of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge the
Guarantor's liability for any portion of the Guarantied Obligations which has
not been paid. Without limiting the generality of the foregoing, if Agent is
awarded a judgment in any suit brought to enforce the Guarantor's covenant to
pay a portion of the Guarantied Obligations, such judgment shall not be deemed
to release the Guarantor from its covenant to pay the portion of the
Guarantied Obligations that is not the subject of such suit.
(d) The Agent or any Lender, upon such terms as it deems
appropriate, without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any reduction, limitation,
impairment, discharge or termination of the Guarantor's liability hereunder,
from time to time may (i) renew, extend (whether pursuant to Section 2.16 or
otherwise), accelerate (in accordance with the terms of this Agreement),
increase the rate of interest on, or otherwise change the time, place, manner
or terms of payment of the Guarantied Obligations, (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with
respect to, or substitutions for, the Guarantied Obligations or any agreement
relating thereto and/or subordinate the payment of the same to the payment of
any other obligations; (iii) request and accept other guaranties of the
Guarantied Obligations and take and hold security for the payment of this
Guaranty or the Guarantied Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the Guarantied
Obligations, any other guaranties of the Guarantied Obligations, or any other
obligation of any Person with respect to the Guarantied Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of
Agent or any Lender in respect of this Guaranty or the Guarantied Obligations
and direct the order or manner of sale thereof, or exercise any other right or
remedy that Agent or Lenders, or any of them, may have against any such
security, as Agent in its discretion may determine consistent with this
Agreement and any applicable security agreement, including foreclosure on any
such security pursuant to one or more judicial or non-judicial sales, whether
or not every aspect of any such sale is commercially reasonable, and even
though such action operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of the Guarantor against the
Partnership or any security for the Guarantied Obligations; and (vi) exercise
any other rights available to it hereunder.
(e) This Guaranty and the obligations of the Guarantor hereunder
shall be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than
indefeasible payment in full of the Guarantied Obligations), including without
limitation the occurrence of any of the following, whether or not the
Guarantor shall have had notice or knowledge of any of them: (i) any failure
or omission to assert or enforce or agreement or election not to assert or
enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any
right, power or remedy (whether arising hereunder, at law, in equity or
otherwise) with respect to the Guarantied Obligations or any agreement
relating thereto, or with respect to any other guaranty of or security for the
payment of the Guarantied Obligations; (ii) any rescission, waiver, amendment
or modification of, or any consent to departure from, any of the terms or
provisions (including without limitation provisions relating to events of
default) of this Agreement, or any agreement or instrument executed pursuant
thereto, or of any other guaranty or security for the Guarantied Obligations,
in each case whether or not in accordance with the terms of this Agreement or
any agreement relating to such other guaranty or security; (iii) the
52
Guarantied Obligations, or any agreement relating thereto, at any time being
found to be illegal, invalid or unenforceable in any respect; (iv) the
application of payments received from any source (other than payments received
from the proceeds of any security for the Guarantied Obligations, except to
the extent such security also serves as collateral for indebtedness other than
the Guarantied Obligations) to the payment of indebtedness other than the
Guarantied Obligations, even though Agent or Lenders, or any of them, might
have elected to apply such payment to any part or all of the Guarantied
Obligations; (v) any Lender's or Agent's consent to the change, reorganization
or termination of the corporate or partnership structure or existence of the
Partnership or any of its Subsidiaries and to any corresponding restructuring
of the Guarantied Obligations; (vi) any failure to perfect or continue
perfection of a security interest in any collateral which secures any of the
Guarantied Obligations; (vii) any defenses which the Partnership may allege or
assert against Agent or any Lender in respect of the Guarantied Obligations,
including but not limited to statute of frauds, statute of limitations, and
usury; and (viii) any other act or thing or omission, or delay to do any other
act or thing, which may or might in any manner or to any extent vary the risk
of the Guarantor as an obligor in respect of the Guarantied Obligations.
Section 8.03 Waivers by the Guarantor.
------------------------
The Guarantor hereby waives, for the benefit of Lenders and Agent:
(a) any right to require Agent or Lenders, as a condition of payment
or performance by the Guarantor, to (i) proceed against the Partnership, any
other guarantor of the Guarantied Obligations or any other Person, (ii)
proceed against or exhaust any security held from the Partnership, any other
guarantor of the Guarantied Obligations or any other Person, (iii) proceed
against or have resort to any balance of any deposit account or credit on the
books of Agent or any Lender in favor of the Partnership or any other Person,
or (iv) pursue any other remedy in the power of Agent or any Lender
whatsoever;
(b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of the Partnership including,
without limitation, any defense based on or arising out of the lack of
validity or the unenforceability of the Guarantied Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of the Partnership from any cause other than indefeasible payment in
full of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(d) (i) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of this Guaranty and any
legal or equitable discharge of the Guarantor's obligations hereunder, (ii)
the benefit of any statute of limitations affecting the Guarantor's liability
hereunder or the enforcement hereof, and (iii) promptness, diligence and any
requirement that Agent or any Lender protect, secure, perfect or insure any
security interest or lien or any property subject thereto;
(e) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including
acceptance of this Guaranty, notices of default hereunder or any agreement or
instrument related thereto, notices of any renewal,
53
extension or modification of the Guarantied Obligations or any agreement
related thereto, notices of any extension of credit to the Partnership and
notices of any of the matters referred to in Section 8.02 and any right to
consent to any thereof; and
(f) any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerate guarantors or sureties, or which
may conflict with the terms of this Guaranty.
Section 8.04 Payment by the Guarantor.
------------------------
The Guarantor hereby agrees, in furtherance of the foregoing and not
in limitation of any other right which Agent or any other Person may have at
law or in equity against the Guarantor by virtue hereof, upon the failure of
the Partnership to pay any of the Guarantied Obligations when and as the same
shall become due, whether at stated maturity, by required prepayment or
declaration of (or, in certain circumstances, automatic) acceleration,
(including amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section
362(a)), the Guarantor will forthwith pay, or cause to be paid, in cash, to
Agent for the benefit of Lenders, an amount equal to the sum of the unpaid
principal amount of all Guarantied Obligations then due as aforesaid, accrued
and unpaid interest on such Guarantied Obligations (including, without
limitation, interest which, but for the filing of a petition in bankruptcy
with respect to the Partnership, would have accrued on such Guarantied
Obligations, whether or not a claim is allowed against the Partnership for
such interest in any such bankruptcy proceeding) and all other Guarantied
Obligations then owed to Agent and/or Lenders as aforesaid.
Section 8.05 Subrogation.
-----------
Until the Guarantied Obligations shall have been indefeasibly paid
in full, the Guarantor shall withhold exercise of (a) any right of
subrogation, (b) any right of contribution the Guarantor may have against any
other guarantor of the Guarantied Obligations, (c) any right to enforce any
remedy which Agent or any Lender now has or may hereafter have against the
Partnership or (d) any benefit of, and any right to participate in, any
security now or hereafter held by Agent or any Lender. The Guarantor further
agrees that, to the extent that its agreement to defer exercising any of its
rights of subrogation and contribution as set forth herein is found by a court
of competent jurisdiction to be void or voidable for any reason, any rights of
subrogation the Guarantor may have against the Partnership or against any
collateral or security, and any rights of contribution the Guarantor may have
against any other guarantor, shall be junior and subordinate to any rights
Agent or Lenders may have against the Partnership, to all right, title and
interest Agent or Lenders may have in any such collateral or security, and to
any right Agent or Lenders may have against such other guarantor. Agent, on
behalf of Lenders, may use, sell or dispose of any item of collateral or
security as it sees fit without regard to any subrogation rights the Guarantor
may have, and upon any such disposition or sale any rights of subrogation the
Guarantor may have shall terminate. If any amount shall be paid to the
Guarantor on account of such subrogation rights at any time when all
Guarantied Obligations shall not have been paid in full, such amount shall be
held in trust for Agent on behalf of Lenders and shall forthwith be paid over
to Agent for the benefit of Lenders to be credited and applied against the
Guarantied Obligations in accordance with the terms of this Agreement or any
applicable security agreement.
Section 8.06 Subordination of Other Obligations.
----------------------------------
Any indebtedness of the Partnership or any Subsidiary of the
Partnership now or hereafter held by the Guarantor is hereby subordinated in
right of payment to the Guarantied Obligations, and any such
54
indebtedness of the Partnership or any Subsidiary of the Partnership to the
Guarantor collected or received by the Guarantor after an Event of Default
resulting from a payment default has occurred and is continuing or after an
acceleration of the Guarantied Obligations shall be held in trust for Agent on
behalf of Lenders and shall forthwith be paid over to Agent for the benefit of
Lenders to be credited and applied against the Guarantied Obligations but
without affecting, impairing or limiting in any manner the liability of the
Guarantor under any other provision of this Guaranty.
Section 8.07 Expenses.
--------
The Guarantor agrees to pay, or cause to be paid, and to save Agent
and Lenders harmless against liability for, any and all reasonable costs and
out-of-pocket expenses (including fees and disbursements of counsel) incurred
or expended by Agent or any Lender in connection with the enforcement of or
preservation of any rights under this Guaranty.
Section 8.08 Continuing Guaranty; Termination of Guaranty.
--------------------------------------------
This Guaranty is a continuing guaranty and shall remain in effect
until all of the Guarantied Obligations shall have been indefeasibly paid in
full and the Commitments of all Lenders shall have terminated.
Section 8.09 Authority of the Guarantor or the Partnership.
---------------------------------------------
It is not necessary for Lenders or Agent to inquire into the
capacity or powers of the Guarantor or the Partnership or the officers,
directors or any agents acting or purporting to act on behalf of any of them.
Section 8.10 Financial Condition of the Partnership.
--------------------------------------
Any Advances may be granted to the Partnership or continued from
time to time without notice to or authorization from Guarantor regardless of
the financial or other condition of the Partnership at the time of any such
grant or continuation. Lenders and Agent shall have no obligation to disclose
or discuss with the Guarantor their assessment, or the Guarantor's assessment,
of the financial condition of the Partnership. The Guarantor has adequate
means to obtain information from the Partnership on a continuing basis
concerning the financial condition of the Partnership and its ability to
perform its obligations hereunder, and the Guarantor assumes the
responsibility for being and keeping informed of the financial condition of
the Partnership and of all circumstances bearing upon the risk of nonpayment
of the Guarantied Obligations. The Guarantor hereby waives and relinquishes
any duty on the part of Agent or any Lender to disclose any matter, fact or
thing relating to the business, operations or conditions of the Partnership
now known or hereafter known by Agent or any Lender.
Section 8.11 Rights Cumulative.
-----------------
The rights, powers and remedies given to Lenders and Agent by this
Guaranty are cumulative and shall be in addition to and independent of all
rights, powers and remedies given to Lenders and Agent by virtue of any
statute or rule of law or under this Agreement or any agreement between the
Corporation and Lenders and/or Agent or between the Partnership and Lenders
and/or Agent. Any forbearance or failure to exercise, and any delay by any
Lender or Agent in exercising, any right, power or remedy hereunder shall not
impair any such right, power or remedy or be construed to be a waiver thereof,
nor shall it preclude the further exercise of any such right, power or remedy.
Section 8.12 Bankruptcy; Post-Petition Interest; Reinstatement
-------------------------------------------------
of the Guaranty.
---------------
55
(a) So long as any Guarantied Obligations remain outstanding, the
Guarantor shall not, without the prior written consent of Agent in accordance
with the terms of this Agreement, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency proceedings of or
against the Partnership. The obligations of the Guarantor under this Guaranty
shall not be reduced, limited, impaired, discharged, deferred, suspended or
terminated by any proceeding, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of the Partnership or by any defense which the Partnership may
have by reason of the order, decree or decision of any court or administrative
body resulting from any such proceeding.
(b) The Guarantor acknowledges and agrees that any interest on any
portion of the Guarantied Obligations which accrues after the commencement of
any proceeding referred to in clause (a) above (or, if interest on any portion
of the Guarantied Obligations ceases to accrue by operation of law by reason
of the commencement of said proceeding, such interest as would have accrued on
such portion of the Guarantied Obligations if said proceedings had not been
commenced) shall be included in the Guarantied Obligations because it is the
intention of the Guarantor and Agent that the Guarantied Obligations which are
guarantied by the Guarantor pursuant to this Guaranty should be determined
without regard to any rule of bankruptcy or other similar laws or which may
relieve the Partnership of any portion of such Guarantied Obligations. The
Guarantor will permit any trustee in bankruptcy, receiver, debtor in
possession, assignee for the benefit of creditors or similar person to pay
Agent, or allow the claim of Agent in respect of, any such interest accruing
after the date on which such proceeding is commenced.
(c) In the event that all or any portion of the Guarantied
Obligations are paid by the Partnership, the obligations of the Guarantor
hereunder shall continue and remain in full force and effect or be reinstated,
as the case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from Agent or any Lender as a
preference, fraudulent transfer or otherwise, and any such payments which are
so rescinded or recovered shall constitute Guarantied Obligations for all
purposes under this Guaranty.
Section 8.13 Notice of Events.
----------------
As soon as the Guarantor obtains knowledge thereof, the Guarantor
shall give Agent written notice of any condition or event which has resulted
or might reasonably be expected to result in (a) a material adverse change in
the financial condition of the Guarantor or the Partnership, or (b) a breach
of or noncompliance with any term, condition or covenant contained in this
Agreement or in any document delivered pursuant hereto, or (c) a material
breach of, or material noncompliance with, any material term, condition or
covenant of any material contract to which the Guarantor or the Partnership is
a party or by which the Guarantor or the Partnership or the Guarantor's or the
Partnership's property may be bound, or (d) the Guarantor or any of its
Subsidiaries being suspended or debarred by any governmental entity from
entering into any government contract or government subcontract, from
otherwise engaging in any business relating to government contracts or from
participation in government non-procurement programs, if such suspension or
debarment may have a material adverse effect on the business, condition
(financial or otherwise), operations or properties of the Guarantor and its
Subsidiaries, taken as a whole.
Section 8.14 Set Off.
-------
In addition to any other rights any Lender may have under law or in
equity, if any amount shall at any time be due and owing by the Guarantor to
any Lender under this Guaranty, such Lender is authorized at any time or from
time to time, without
56
notice (any such notice being hereby expressly waived), to set off and to
appropriate and to apply any and all deposits (including but not limited to
indebtedness evidenced by certificates of deposit, whether matured or
unmatured, time or demand deposits, provisional or final deposits, or general
deposits but not special deposits) and any other indebtedness of such Lender
or any Affiliate thereof owing to the Guarantor and any other property of the
Guarantor held by such Lender to or for the credit or the account of the
Guarantor against and on account of the Guarantied Obligations and liabilities
of Guarantor to such Lender under this Guaranty, and each such Affiliate is
hereby irrevocably authorized to permit such setoff and application.
Section 8.15 Determination of the Guarantied Obligations.
-------------------------------------------
Notwithstanding anything to the contrary contained in this Guaranty,
the determination of the amount and terms of repayment of the Guarantied
Obligations under this Guaranty shall be consistent with such determination
pursuant to this Agreement (without giving effect to the effect upon such
determination of the Bankruptcy Code) with the result that the liability of
the Guarantor under this Guaranty will not exceed the liability which the
Guarantor would have had if it had been the Partnership under this Agreement
(plus any amounts payable pursuant to Section 8.07 hereof); provided however
that the Guarantor's agreements and waivers set forth herein with respect to
suretyship defenses (including, without limitation, defenses based on lack of
authority of the Partnership or persons signing on behalf of the Partnership
or the illegality, invalidity or unenforceability of this Agreement against
the Partnership) shall be fully effective, it being understood that the
limitation on the Guarantor's liability set forth above relates only to the
determination of the amount and payment terms of the Guarantied Obligations
and does not otherwise limit the Guarantor's obligations under this Guaranty.
Section 8.16 Successors and Assigns.
----------------------
This Guaranty is a continuing guaranty and shall be binding upon the
Guarantor and its successors and assigns. This Guaranty shall inure to the
benefit of Lenders, Agent and their respective successors and assigns. The
Guarantor shall not assign this Guaranty or any of the rights or obligations
of the Guarantor hereunder without the prior written consent of all Lenders.
Any Lender may, without notice or consent, assign its interest in this
Guaranty in whole or in part. The terms and provisions of this Guaranty shall
inure to the benefit of any assignee or transferee of any rights and
obligations under this Agreement, and in the event of such transfer or
assignment the rights and privileges herein conferred upon Lenders and Agent
shall automatically extend to and be vested in such transferee or assignee,
all subject to the terms and conditions hereof.
Section 8.17 Further Assurances.
------------------
At any time or from time to time, upon the request of Agent or
Majority Lenders, the Guarantor shall execute and deliver such further
documents and do such other acts and things as Agent or Majority Lenders may
reasonably request in order to effect fully the purposes of this Guaranty.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Amendments, Etc.
---------------
No amendment or waiver of any provision of this Agreement, nor
consent to any departure by the Partnership or the Corporation therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Majority Lenders, 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 Lenders, do any of the following: (a)
waive any of
57
the conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders (except pursuant to Section 2.18) or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the A
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the A Advances or any
fees or other amounts payable hereunder (except pursuant to Section 2.16), (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the A Advances, or the number of Lenders, which shall be required
for the Lenders or any of them to take any action hereunder, (f) limit or
release the liability of the Guarantor under the Guaranty, (g) postpone any
date fixed for payment under the Guaranty or (h) amend Section 2.16, Section
2.18 or this Section 9.01; and provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement; and provided further, that any amendment,
modification, termination or waiver of the principal amount of any B Advance
or payments or prepayments by either Borrower in respect thereof, the
scheduled maturity dates of any B Advance, the dates on which interest is
payable and decreases in interest rates borne by B Advances shall not be
effective without the written concurrence of the Lender which has funded such
B Advance.
Section 9.02 Notices, Etc.
------------
All notices and other communications provided for hereunder shall be
in writing (including telecopier, telegraphic, telex or cable communication)
and mailed, telecopied, telegraphed, telexed, cabled or delivered, if to the
Corporation, at its address at Computer Sciences Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. Level; if to the
Partnership, at its address at CSC Enterprises, ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. Level; if to any Bank, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, (A) for all notices and communications relating to borrowings or
repayments, including, without limitation, any Notice of Borrowing, Notice of
Conversion/Continuation or notice of repayment or prepayment, at its address
at Citicorp USA, Inc., c/o Citibank Agency Services, ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, and (B) for all other
notices and communications at its address at Citicorp USA, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇;
or, as to the Corporation, the Partnership or the 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 Corporation, the Partnership and the
Agent. All such notices and communications shall, when personally delivered,
mailed, telecopied, telegraphed, telexed or cabled, be effective when
personally delivered, after five (5) days after being deposited in the mails,
when delivered to the telegraph company, when confirmed by telex answerback or
when delivered to the cable company, respectively, except that notices and
communications to the Agent pursuant to Article II or VII shall not be
effective until received by the Agent.
Section 9.03 No Waiver; Remedies.
-------------------
No failure on the part of any Lender or the Agent to exercise, and
no delay in exercising, any right hereunder 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.
58
Section 9.04 Costs, Expenses and Indemnification.
-----------------------------------
(a) The Partnership and the Corporation jointly and severally agree
to pay promptly on demand all reasonable costs and out-of-pocket expenses of
Agent in connection with the preparation, execution, delivery, administration,
syndication, modification and amendment of this Agreement, and the other
documents to be delivered hereunder or thereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities hereunder. The Partnership and the Corporation
further jointly and severally agree to pay promptly on demand all costs and
expenses of the Agent and of each Lender, if any (including, without
limitation, reasonable counsel fees and out-of-pocket expenses), in connection
with the enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement and the other documents to be delivered
hereunder, including, without limitation, reasonable counsel fees and out-of-
pocket expenses in connection with the enforcement of rights under this
Section 9.04(a).
(b) If any payment of principal of any Eurodollar Rate Advance or B
Advance extended to either Borrower is made other than on the last day of the
interest period for such Advance, as a result of a payment pursuant to Section
2.06 or acceleration of the maturity of the Advances pursuant to Section 6.01
or for any other reason, such Borrower shall, upon demand by any Lender (with
a copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses which it may reasonably incur as a result of such
payment, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Advance.
(c) The Partnership and the Corporation jointly and severally agree
to indemnify and hold harmless the Agent, each Lender and each director,
officer, employee, agent, attorney and affiliate of the Agent and each Lender
(each an "indemnified person") in connection with any expenses, losses,
claims, damages or liabilities to which the Agent, a Lender or such
indemnified persons may become subject, insofar as such expenses, losses,
claims, damages or liabilities (or actions or other proceedings commenced or
threatened in respect thereof) arise out of the transactions referred to in
this Agreement or arise from any use or intended use of the proceeds of the
Advances, or in any way arise out of activities of the Borrowers or the
Guarantor that violate Environmental Laws, and to reimburse the Agent, each
Lender and each indemnified person, upon their demand, for any reasonable
legal or other out-of-pocket expenses incurred in connection with
investigating, defending or participating in any such loss, claim, damage,
liability, or action or other proceeding, whether commenced or threatened
(whether or not the Agent, such Lender or any such person is a party to any
action or proceeding out of which any such expense arises). Notwithstanding
the foregoing, the Corporation and the Partnership shall have no obligation
hereunder to an indemnified person with respect to indemnified liabilities
which have resulted from the gross negligence, bad faith or willful misconduct
of such indemnified person.
Section 9.05 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 Agent to declare the Advances due
and payable pursuant to the provisions of Section 6.01, each Lender is hereby
authorized at any time
59
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (time or demand, provisional or final, or general,
but not special) at any time held and other indebtedness at any time owing by
such Lender or any Affiliate thereof to or for the credit or the account of
either Borrower against any and all of the obligations of such Borrower now or
hereafter existing under this Agreement that are then due and payable, whether
or not such Lender shall have made any demand under this Agreement, and each
such Affiliate is hereby irrevocably authorized to permit such setoff and
application. Each Lender agrees promptly to notify the applicable Borrower
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of set-
off) which such Lender may have.
Section 9.06 Binding Effect.
--------------
This Agreement shall be deemed to have been executed and delivered
when it shall have been executed by the Partnership, the Corporation and the
Agent and when the Agent shall have been notified by each Bank that such Bank
has executed it and thereafter shall be binding upon and inure to the benefit
of the Partnership, the Corporation, the Agent and each Lender and their
respective successors and permitted assigns, except that the Partnership and
the Corporation shall not have the right to assign their rights hereunder or
any interest herein without the prior written consent of all Lenders. At the
time of the effectiveness of this Agreement, (i) this Agreement shall
supersede the Existing Credit Agreement and (ii) the Existing Credit Agreement
shall automatically terminate and be of no further force and effect.
Section 9.07 Assignments and Participations.
------------------------------
(a) Each Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and the A Advances
owing to 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 (other than any B Advances), (ii) after giving effect to any
such assignment, (1) the assigning Lender shall no longer have any Commitment
or (2) the amount of the Commitment of each of the assigning Lender and the
Eligible Assignee party to such assignment (in each case determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall
not be less than $10,000,000, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) the parties to each such assignment shall execute
and deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, and a processing and recordation fee of $3,500.
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 hereunder and (y) the
Lender 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's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto). Any Lender may
at any time pledge or assign all or any portion of its rights hereunder to any
Affiliate of such Lender or any Federal Reserve Bank; provided, that no such
pledge or assignment shall release such Lender
--------
from any of its obligations hereunder.
60
(b) By executing and delivering an Assignment and Acceptance, the
Lender 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 makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Partnership or the Corporation or the performance or
observance by the Partnership or the Corporation of any of its obligations
under this Agreement 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 Section 4.02, 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 the Agent, such assigning Lender or any other Lender
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 the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all of the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section
9.02 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 Lenders
and the Commitment of, the Commitment Termination Date of, and, with respect
to each Borrower, principal amount of the Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Within five days of its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee (together with a processing and recordation fee of $3,500
with respect thereto) and upon consent of the Borrowers thereto, which consent
shall not be unreasonably withheld, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit B
hereto, (1) accept such Assignment and Acceptance and (2) record the
information contained therein in the Register. All communications with the
Borrowers with respect to such consent of the Borrowers shall be either sent
pursuant to Section 9.02 or sent to the following: CSC Enterprises, ▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. Level,
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇.
(e) Each Lender may assign to one or more banks or other entities
any B Advance or B Advances made by it.
61
(f) Each Lender may sell participations to one or more banks or
other entities 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 and the Advances owing to it; provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Advance for all purposes of this Agreement, (iv) the Borrowers, the
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement, and (v) no Lender shall grant any participation under which the
participant shall have rights to require such Lender to take or omit to take
any action hereunder or approve any amendment to or waiver of this Agreement,
except to the extent such amendment or waiver would: (A) extend the
Termination Date of such Lender; or (B) reduce the interest rate or the amount
of principal or fees applicable to Advances or the Commitment in which such
participant is participating.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Partnership or the Corporation
furnished to such Lender by or on behalf of the Partnership or the
Corporation; 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 Partnership or
the Corporation received by it from such Lender.
Section 9.08 Governing Law.
-------------
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
Section 9.09 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.
Section 9.10 Consent to Jurisdiction; Waiver of Immunities.
---------------------------------------------
The Partnership and the Corporation hereby irrevocably submit to the
jurisdiction of any New York state or Federal court sitting in New York, New
York in any action or proceeding arising out of or relating to this Agreement,
and the Partnership and the Corporation hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard and determined in
such New York state or Federal court. The Partnership and the Corporation
hereby irrevocably waive, to the fullest extent they may effectively do so,
the defense of an inconvenient forum to the maintenance of such action or
proceeding. The Partnership and the Corporation agree 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 Section 9.10 shall affect the right of any Lender or
Agent to serve legal process in any other manner permitted by law or affect
the right of any Lender or Agent to bring any action or proceeding against the
Partnership and the Corporation or their respective property in the courts of
any other jurisdiction.
Section 9.11 Waiver of Trial by Jury.
-----------------------
THE PARTNERSHIP, THE CORPORATION, THE BANKS, THE AGENT AND, BY ITS
ACCEPTANCE OF THE BENEFITS HEREOF, OTHER LENDERS EACH HEREBY AGREES TO WAIVE
ITS
62
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including without
limitation contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. The Partnership, the Corporation, the Banks,
the Agent and, by its acceptance of the benefits hereof, other Lenders each
(i) acknowledges that this waiver is a material inducement for the
Partnership, the Corporation, the Lenders and the Agent to enter into a
business relationship, that the Partnership, the Corporation, the Lenders and
the Agent have already relied on this waiver in entering into this Agreement
or accepting the benefits thereof, as the case may be, and that each will
continue to rely on this waiver in their related future dealings and (ii)
further warrants and represents that each has reviewed this waiver with its
legal counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
Section 9.12 Limited Liability of Merel Corporation.
--------------------------------------
The Agent and each Lender agree for themselves and their successors
and assigns that any claim against Merel Corporation or its successors (the
"Limited Liability Partner") which may arise hereunder shall be made only
against and shall be limited to the partnership interest in the Partnership
owned by such Limited Liability Partner, any right to proceed against the
Limited Liability Partner individually or any of its respective assets, other
than with respect to its respective partnership interests in the Partnership,
being hereby expressly waived and renounced by the Agent and each Lender.
Nothing in this Section 9.12 shall be construed so as to prevent the Agent or
any Lender from commencing any legal action, suit or proceeding with respect
to, or causing legal papers to be served upon, the Limited Liability Partner
for the purpose of obtaining jurisdiction over the Partnership or the Limited
Liability Partner.
Section 9.13 Survival of Warranties.
----------------------
All agreements, representations and warranties made in this
Agreement shall survive the execution and delivery of this Agreement and any
increase in the Commitments under this Agreement.
Section 9.14 Severability.
------------
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 9.15 Headings
--------
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or be given any substantive effect.
63
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.
CSC ENTERPRISES, a Delaware partnership
By: CSC Enterprises, Inc., its Managing Partner
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
COMPUTER SCIENCES CORPORATION,
a Nevada corporation
By /s/ ▇▇▇▇ ▇. Level
------------------------------------
Name: ▇▇▇▇ ▇. Level
Title: Vice President
CITICORP USA, INC., as Agent and a Lender
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Commitment: $23,750,000
S-1
Commitment Banks
---------- -----
$21,250,000 ▇▇▇▇▇▇ GUARANTY TRUST CO. OF
NEW YORK AS ATTORNEY-IN FACT
FOR REVOLVING COMMITMENT
VEHICLE CORPORATION (As a lender
And as a Senior Managing Agent)
By /s/ ▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
$21,250,000 THE BANK OF NEW YORK (As a
Lender and as a Senior Managing Agent)
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
$21,250,000 THE FIRST NATIONAL BANK OF CHICAGO
(As a Lender and as a
Senior Managing Agent)
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: FVP/Credit Officer II
$21,250,000 FIRST UNION NATIONAL BANK
(As a Lender and as a Senior Managing Agent)
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
$21,250,000 MELLON BANK N.A. (As a Lender and
as a Senior Managing Agent)
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
S-2
$16,500,000 BANCA DI ROMA (As a Lender and as
a Co-Agent)
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President 97911
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President 97271
$16,500,000 BANCA COMMERCIALE ITALIANA
Los Angeles Foreign Branch
(As a Lender and as a Co-Agent)
By /s/ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: First Vice President/
Deputy Manager
By /s/ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: Vice President
$16,500,000 ▇▇▇▇▇ FARGO BANK (As a Lender
and as a Co-Agent)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-3
$11,750,000 BANCA NAZIONALE DEL LAVORO S.p.A.
(As a Lender)
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
$11,750,000 BBL INTERNATIONAL (U.K.) LTD.
(As a Lender)
By /s/ ▇. ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Authorised Signatory
By /s/ ▇-▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇-▇ ▇▇▇▇▇▇▇
Title: Authorised Signatory
$11,750,000 THE BANK OF NOVA SCOTIA
(As a Lender)
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Relationship Manager
$11,750,000 NATIONAL WESTMINSTER BANK, Plc
(As a Lender)
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-4
$11,750,000 STANDARD CHARTERED BANK
(As a Lender)
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
$11,750,000 DRESDNER BANK AG,
New York and Grand Cayman Branches
(As a Lender)
By /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
S-5
SCHEDULE I
APPLICABLE LENDING OFFICES
Bank Domestic Lending Office Eurodollar Lending Office
---- ----------------------- -------------------------
Banca Commerciale Banca Commerciale Banca Commerciale
Italiana Italiana Italiana
(Los Angeles (N.Y. Branch) (N.Y. Branch)
Foreign Branch) One South ▇▇▇▇▇▇▇ Street ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Brigitte Sacin Attention: Brigitte Sacin
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
Banca di Roma Banca di Roma Banca di Roma
One Market Street, One Market Street,
Stuart Tower Stuart Tower
Suite 1000 Suite 1000
San Francisco, CA 94105 ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇ Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
Banca Nazionale del Banca Nazionale del Banca Nazionale del
Lavoro Lavoro S.p.A. Lavoro S.p.A.
New York Branch New York Branch
▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
BBL International BBL International BBL International
(U.K.) Limited (U.K.) Limited (U.K.) Limited
6 Broadgate ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel. No. ▇▇-▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇-▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇-▇▇▇-▇▇▇-▇▇▇▇
The Bank of New York The Bank of New York The Bank of New York
One Wall Street, One Wall Street,
2nd Floor 2nd Floor
New York, NY 10005 New York, NY 1005
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
Schedule I-1
The Bank of Nova Scotia The Bank of Nova Scotia The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
Citicorp USA, Inc. Citicorp USA, Inc. Citicorp USA, Inc.
Citibank Agency Services Citibank Agency Services
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇ Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇ Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Dresdner Bank ▇▇ ▇▇▇▇▇▇▇▇ Bank AG, Dresdner Bank AG,
New York Branch New York Branch
Grand Cayman Branch Grand Cayman Branch
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
The First National The First National The First National
Bank of Chicago Bank of Chicago Bank of Chicago
One First National Plaza One First National Plaza
Chicago, IL 60670 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
First Union National First Union National Bank First Union National Bank
Bank ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
Mail Code: NC1183 Mail Code: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
Mellon Bank, ▇.▇. ▇▇▇▇▇▇ Bank, ▇.▇. ▇▇▇▇▇▇ Bank, N.A.
Three Mellon Center, Three Mellon Center,
Room 1203 Room 1203
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Loan Administration Attn: Loan Administration
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
Schedule I-2
▇▇▇▇▇▇ Guaranty Trust ▇▇▇▇▇▇ Guaranty Trust ▇▇▇▇▇▇ Guaranty Trust
Company of New York Company of New York Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ c/o ▇.▇. ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Services Inc
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Euro-Loan Servicing Unit
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telex 177425MBDELUT
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
National Westminster National Westminister National Westminster
Bank, Plc Bank, Plc Bank, Plc
New York Branch Nassau Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, c/o East 55th Street,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇,
Commercial Loans Commercial Loans
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇/1424 ▇▇▇.▇▇. ▇▇▇-▇▇▇-▇▇▇▇/1424
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
Standard Chartered Bank Standard Chartered Bank Standard Chartered Bank
7 World Trade Center ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank ▇▇▇▇▇ Fargo Bank ▇▇▇▇▇ Fargo Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
MAC 2818-165 MAC 2818-165
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
Schedule I-3
SCHEDULE II
PROPERTY OF PARTNERSHIP
Approximate
Square
Address Footage Acreage
------- ------- -------
1. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 147,000 51.0
Norwich, CT
2. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 161,000 9.5
San Diego, CA
3. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 20,000 3.9
Baltimore, MD
4. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 45,000 5.4
Sterling, VA
5. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 119,000 18.0
Meriden, CT
Schedule II-1
SCHEDULE III
PROPERTY OF CORPORATION
Approximate
Square
Address Footage Acreage
------- ------- -------
1. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 41,000 4.2
Moorestown, NJ
2. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 87,000 16.5
Herndon, VA
3. ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ 206,000 5.9
El Segundo, CA
4. ▇▇▇ ▇. ▇▇▇▇▇ ▇▇ 58,000 5.5
▇▇▇▇▇▇▇▇▇▇, ▇▇
▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 12,000 8.3
Mt. Laurel, NJ
6. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 290,000 11.1
Falls Church, VA
7. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 149,000 51.0 *
Norwich, CT
8. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 161,000 9.5 *
San Diego, CA
9. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 60,000 1.0
St. Leonards, Australia
10. ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 2,000 0.2
Nowra, Australia
11. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 20,000 3.9 *
Baltimore, MD
12. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 45,000 5.4 *
Sterling, VA
13. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 119,000 18.0 *
Meriden, CT
14. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 187,000 5.4
Austin, TX
15. Retortevj 8 293,000 11.8
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇. Oldenborg Alle 1 130,000 3.4
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇. ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 10,000 0.3
Woking, Surrey, United Kingdom
18. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 183,000
Newark, DE
19. Lodgehouse, Vinters Park 79,000 11.3
Maidstone, United Kingdom
20. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 61,000 1.0
Singapore
Schedule III-1
Approximate
Square
Address Footage Acreage
------- ------- -------
21. Topsail Plaza 73,000
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇
22. ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇. #▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2,000
Chendu, China
24. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 6,000
Guangzhou, China
25. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇,▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇. Aldershot, United Kingdom 35.0
* Owned by the Partnership and also listed on Schedule II.
Schedule III-2
EXHIBIT A-1
-----------
NOTICE OF A BORROWING
Citicorp USA, Inc., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
c/o Citibank Agency Services
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Each of the undersigned, CSC Enterprises (the "Partnership") and
Computer Sciences Corporation (the "Corporation"), refers to the Credit
Agreement (Long Term Facility) dated as of August 20, 1999 (as amended from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the Partnership, the Corporation, certain
Lenders party thereto and Citicorp USA, Inc., as Administrative Agent for said
Lenders (the "Agent"). The [Partnership] [Corporation] hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
[Partnership] [Corporation] hereby requests an A Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such A Borrowing (the "Proposed A Borrowing") as required by Section 2.02(a)
of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is [Date].
(ii) The Type of A Advances comprising the Proposed A Borrowing
is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$______________.
(iv) If the Type of A Advances comprising the Proposed A
Borrowing is Eurodollar Rate Advances, the Interest Period
for each A Advance made as part of the Proposed A Borrowing
is __ month[s].
Each of the undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed A Borrowing:
(A) the representations and warranties contained in Article IV of
the Credit Agreement are correct, before and after giving
effect to the Proposed A Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date,
except to the extent that any such representation and warranty
expressly relates only to an earlier date, in which case they
were correct as of such earlier date;
(B) no event has occurred and is continuing, or would result from
such Proposed A Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or a
Potential Event of Default; and
(C) the amount of the Proposed A Borrowing does not exceed the
aggregate amount of the unused Commitments of the Lenders
(after giving effect to any B Reductions).
The Corporation hereby further certifies that after giving effect to
the Proposed A Borrowing, the aggregate amount of the Guarantied Obligations
(as defined in the Credit Agreement), together with all other Debt (including
any Advances under the Credit Agreement) incurred by the Corporation pursuant
to the resolutions of the Board of Directors of the Corporation authorizing
the Credit Agreement, does not exceed the aggregate amount of Debt authorized
by such resolutions.
Very truly yours,
CSC ENTERPRISES, a Delaware general partnership
By CSC Enterprises, Inc.,
Its Managing Partner
By: ______________________
Title:
COMPUTER SCIENCES CORPORATION
By: ___________________________
Title:
EXHIBIT A-2
-----------
NOTICE OF B BORROWING
Citicorp USA, Inc., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
c/o Citibank Agency Services
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Each of the undersigned, CSC Enterprises (the "Partnership") and
Computer Sciences Corporation (the "Corporation"), refers to the Credit
Agreement (Long Term Facility) dated as of August 20, 1999 (as amended from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the Partnership, the Corporation, certain
Lenders party thereto and Citicorp USA, Inc., as Administrative Agent for said
Lenders (the "Agent"). The [Partnership] [Corporation] hereby gives you
notice pursuant to Section 2.03 of the Credit Agreement that the [Partnership]
[Corporation] hereby requests a B Borrowing under the Credit Agreement, and in
that connection sets forth the terms on which such B Borrowing (the "Proposed
B Borrowing") is requested to be made:
(A) Date of B Borrowing ____________________
(B) Amount of B Borrowing ____________________
(C) Maturity Date ____________________
(D) Interest Rate Basis ____________________
(E) Interest Payment Date(s) ____________________
(F) [Additional Terms] ____________________
(G) [Additional Terms] ____________________
(H) [Additional Terms] ____________________
Each of the undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed B Borrowing:
(a) the representations and warranties contained in Article IV of
the Credit Agreement are correct, before and after giving
effect to the Proposed B Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date,
except to the extent that any such representation and warranty
expressly relates only to an earlier date, in which case they
were correct as of such earlier date;
(b) no event has occurred and is continuing, or would result from
the Proposed B Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or a
Potential Event of Default;
(c) the aggregate amount of the Proposed B Borrowing and all other
Borrowings to be made on the same day under the Credit
Agreement is within the aggregate amount of the unused
Commitments of the Lenders.
The [Partnership] [Corporation] hereby confirms that the Proposed B
Borrowing is to be made available to it in accordance with Section 2.03(a)(v)
of the Credit Agreement.
The Corporation hereby further certifies that after giving effect to
the Proposed B Borrowing, the aggregate amount of the Guarantied Obligations
(as defined in the Credit Agreement), together with all other Debt (including
any Advances under the Credit Agreement) incurred by the Corporation pursuant
to the resolutions of the Board of Directors of the Corporation authorizing
the Credit Agreement, does not exceed the aggregate amount of Debt authorized
by such resolutions.
Very truly yours,
CSC ENTERPRISES, a Delaware general partnership
CSC ENTERPRISES, INC.,
Its Managing Partner
By: _______________________
Title:
COMPUTER SCIENCES CORPORATION
By: ___________________________
Title:
EXHIBIT B
---------
ASSIGNMENT AND ACCEPTANCE
Dated ________, _____
Reference is made to the Credit Agreement (Long Term Facility) dated
as of August 20, 1999 (as amended from time to time, the "Credit Agreement")
among Computer Sciences Corporation, a Nevada corporation (the "Corporation"),
CSC Enterprises, a Delaware general partnership (the "Partnership"), the
Lenders (as defined in the Credit Agreement) and Citicorp, USA, Inc., as
Administrative Agent for the Lenders (the "Agent"). Terms defined in the
Credit Agreement and not defined herein are used herein with the same meaning.
_________________ (the "Assignor") and ___________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns without recourse to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
that interest in and to all of the Assignor's rights and obligations under the
Credit Agreement as of the Effective Date (other than in respect of B
Advances) which represents the percentage interest specified on Schedule 1
attached hereto of all outstanding rights and obligations under the Credit
Agreement (other than in respect of B Advances), including, without
limitation, such interest in the Assignor's Commitment and the A Advances
owing to the Assignor. After giving effect to such sale and assignment, the
Assignee's Commitment, the amount of the A Advances owing to the Assignee, and
the Commitment Termination Date of the Assignee will be as set forth in
Section 2 of Schedule 1 attached hereto. In consideration of Assignor's
assignment, Assignee hereby agrees to pay to Assignor, on the Effective Date,
the amount of $__________ in immediately available funds by wire transfer to
Assignor's office at ________________________________________.
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 the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Partnership or the Corporation or the performance
or observance by the Partnership or the Corporation of any of its obligations
under the Credit Agreement or any other instrument or document furnished
pursuant thereto.
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 and Section 4.02 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 the Agent, the Assignor or any
other Lender 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 the Agent to take such action
as agent on its behalf and to exercise such powers under the Credit Agreement
as are delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
specifies as its Domestic Lending Office (and address for notices) and
Eurodollar Lending Office the offices set forth beneath its name on the
signature pages hereof [and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement or such other documents as are necessary to indicate that all such
payments are subject to such rates at a rate reduced by an applicable tax
treaty].
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for acceptance
and recording by the Agent. The effective date of this Assignment and
Acceptance shall be the date of acceptance thereof by the Agent, unless
otherwise specified on Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the 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 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 Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect thereto)
to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement 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.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
[FN]
If the Assignee is organized under the laws of a jurisdiction outside of
the United States.
Schedule 1
to
ASSIGNMENT AND ACCEPTANCE
Dated __________, _____
Section 1.
---------
Percentage Interest: ______%
Section 2.
---------
Assignee's Commitment: $______
Aggregate Outstanding Principal
Amount of A Advances owing to the Assignee: $______
A Advances payable to the Assignee
Principal amount: _______
A Advances payable to the Assignor
Principal amount: _______
Assignee's Commitment Termination Date: _________, ____
Section 3.
---------
Effective Date: __________, _____
[NAME OF ASSIGNOR]
By: ____________________________
Title:
[NAME OF ASSIGNEE]
By:____________________________
Title:
[FN]
This date should be no earlier thatn the date of acceptance by the
Agent.
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ____ day
of _____________, ______
CITICORP USA, INC., as Agent
By: ______________________
Title:
COMPUTER SCIENCES CORPORATION,
a Nevada corporation
By: ______________________
Title:
CSC ENTERPRISES, a Delaware
general partnership
By CSC ENTERPRISES, INC.,
Its Managing Partner
By: ____________________________
Title:
EXHIBIT C-1
-----------
[FORM OF OPINION OF ________________________________ ]
[EFFECTIVE DATE]
Citicorp USA, Inc., as Administrative Agent
under the Credit Agreement
(as hereinafter defined), and each
of the lending institutions party
to the Credit Agreement and listed
on Schedule I attached hereto
(collectively, the "Banks")
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Credit Agreement (Long Term Facility) dated as of August 20, 1999, among
CSC Enterprises, Computer Sciences Corporation, the Banks and Citicorp
USA, Inc., as Administrative Agent for the Banks
------------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to CSC Enterprises, a Delaware
general partnership (the "Partnership"), and Computer Sciences Corporation, a
Nevada corporation (the "Corporation"), in connection with the Credit
Agreement (Long Term Facility) dated as of August 20, 1999 (the "Credit
Agreement") among the Partnership, the Corporation, the Banks and Citicorp
USA, Inc., as Administrative Agent for the Banks (in such capacity, the
"Agent"). Terms defined in the Credit Agreement and not otherwise defined
herein are used herein as therein defined. This opinion is rendered to you
pursuant to Section 3.01(h) of the Credit Agreement.
In rendering this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction as being true copies, of
the following documents and instruments:
(a) the Credit Agreement;
(b) a certificate of even date herewith of the corporate secretary
of the Managing Partner attaching thereto and certifying (i) a copy of the
certificate of incorporation and by-laws of the Managing Partner in effect on
the date hereof, (ii) a copy of the corporate resolutions of the Managing
Partner in respect of the Credit Agreement and the transactions contemplated
thereby, (iii) incumbencies of certain officers of the Managing Partner, and
(iv) a copy of the partnership agreement of the Partnership (the "Partnership
Agreement") in effect on the date hereof; and
(c) certificates of even date herewith of officers of the Managing
Partner and the Corporation setting forth or certifying certain factual
matters, a copy of such certificates having been delivered to the Agent.
The Partnership and the Corporation are sometimes referred to herein
collectively as the "Obligors".
We have also reviewed such other documents, certificates or
statements of public officials and such other persons, and have considered
such matters of law, as we deem necessary for purposes of this opinion.
We have, with your permission, assumed, without investigation or
inquiry with respect to any such matter, that:
(a) The Corporation is a validly existing corporation in good
standing under the laws of the State of Nevada and has all requisite corporate
power and authority to execute, deliver and perform its obligations under the
Credit Agreement. The Credit Agreement has been duly authorized by all
necessary corporate action on the part of the Corporation and has been duly
executed and delivered by the Corporation. The Managing Partner is a
corporation validly existing and in good standing under the laws of the State
of Nevada and has all requisite corporate power and authority to execute and
deliver the Credit Agreement on behalf of the Partnership. The execution and
delivery of the Credit Agreement by the Managing Partner, acting in its
capacity as the managing general partner on behalf of the Partnership, has
been duly authorized by all necessary corporate action on behalf of the
Managing Partner, and the Credit Agreement has been duly executed and
delivered by the Managing Partner. We understand that there has been
delivered to you an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President and General
Counsel of the Corporation, dated the Effective Date to such effect.
(b) To the extent that the obligations of the Obligors may be
dependent upon such matters, each of the Banks and the Agent has all requisite
power and authority to execute, deliver and perform its obligations under the
Credit Agreement; the execution and delivery of the Credit Agreement and
performance of such obligations have been duly authorized by all necessary
action on the part of such Bank and the Agent; the Credit Agreement has been
duly executed and delivered by such Bank or the Agent; and the Credit
Agreement is the legal, valid and binding obligation of such Bank or the
Agent, enforceable against it in accordance with its terms.
(c) The signatures on all documents examined by us are genuine,
and, except as to the Partnership (with respect to which the following
assumption in this clause (c) does not apply), all individuals executing such
documents were thereunto duly authorized.
(d) The documents submitted to us as originals are authentic and
the documents submitted to us as certified or reproduction copies conform to
the originals.
With respect to questions of fact material to the opinions
expressed below, we have, with your consent, relied upon certificates of
public officials and officers of the Managing Partner and the Corporation, in
each case without having independently verified the accuracy or completeness
thereof.
With respect to any opinion herein in regard to the existence or
absence of facts that is stated to be to our actual knowledge, such statement
means that, during the course of our representation of the Obligors, no
information has come to the attention of the lawyers in our Firm participating
in such representation that has given them actual knowledge of facts contrary
to the existence or absence of the facts indicated. No inference as to our
knowledge of the existence or absence of such facts should be drawn from our
representation of the Obligors.
Based upon the foregoing, and subject to the qualifications,
exceptions, limitations and assumptions hereinafter set forth, we are of the
opinion that:
1. The Partnership is a general partnership validly existing and in
good standing under the laws of the State of Delaware and has all requisite
partnership power and authority to own and operate its properties, to conduct
its business as presently conducted, and to execute, deliver and perform its
obligations under the Credit Agreement.
2. The Credit Agreement has been duly authorized by all necessary
partnership action on the part of the Partnership and has been duly executed
and delivered by the Partnership. The Credit Agreement constitutes the legal,
valid and binding obligation of the Partnership, enforceable against the
Partnership in accordance with its terms. The Credit Agreement constitutes
the legal, valid and binding obligation of the Corporation, enforceable
against the Corporation in accordance with its terms.
3. Neither the execution and delivery by the Partnership of the
Credit Agreement, nor consummation of the transactions contemplated thereby,
nor compliance on or prior to the date hereof with the terms and conditions
thereof by the Partnership conflicts with or is a violation of, the
Partnership Agreement, as in effect on the date hereof. Neither the execution
and delivery by each Obligor of the Credit Agreement, nor the consummation of
the transactions contemplated thereby, nor compliance on or prior to the date
hereof with the terms and conditions thereof by each Obligor will result in a
violation of any applicable federal or New York law, governmental rule or
regulation or of the General Corporation Law of the State of Delaware.
4. Neither the making of the Advances on the Effective Date
pursuant to, nor application of the proceeds thereof in accordance with, the
Credit Agreement, will violate Regulations T, U or X promulgated by the Board
of Governors of the Federal Reserve System.
5. No consent, approval or authorization of, and no registration,
declaration or filing with, any administrative, governmental or other public
authority of the United States of America or the State of New York or under
the General Corporation Law of the State of Delaware is required by law to be
obtained or made by either Obligor for the execution, delivery and performance
by such Obligor of the Credit Agreement, except such filings as
may be required in the ordinary course to keep in full force and effect rights
and franchises material to the business of the Obligors and in connection with
the payment of taxes.
6. Neither Obligor is an "investment company" or a Person directly
or indirectly "controlled" by or "acting on behalf of" an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
Each of the opinions set forth, above are subject to the following
qualifications, exceptions, limitations and assumptions:
(a) Our opinions are subject to (i) the effect of bankruptcy,
insolvency, reorganization, moratorium, arrangement or other similar laws
affecting enforcement of creditors' rights generally, including, without
limitation, the effect of statutory or other laws regarding fraudulent
conveyances or transfers, preferential transfers or laws affecting
distributions by corporations to stockholders and (ii) general principles of
equity, regardless of whether enforceability is considered in a proceeding in
equity or at law, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or other equitable relief (whether sought in a proceeding
at law or in equity).
(b) We have assumed that no agreement exists that would expand,
modify or otherwise affect the respective rights or obligations of the parties
to the Credit Agreement. We have no actual knowledge of any such agreement.
(c) We express no opinion with respect to the legality, validity,
binding effect or enforceability of (i) any provision of the Credit Agreement
regarding the remedies available to any party which permit any party to take
discretionary action which is arbitrary, unreasonable or capricious, or is not
taken in good faith or in a commercially reasonable manner, whether or not
such action is permitted under the Credit Agreement; (ii) any provision of the
Credit Agreement to the effect that rights or remedies are not exclusive or
may be exercised without notice, that every right or remedy is cumulative and
may be exercised in addition to any other right or remedy, that the election
of some particular remedy does not preclude recourse to one or more others or
that failure to exercise or delay in exercising rights or remedies will not
operate as a waiver of any such right or remedy; (iii) any waiver or any
consents (whether or not characterized as a waiver or consent in the Credit
Agreement) relating to the rights of the Obligors or duties owing to the
obligations existing as a matter of law to the extent such waivers or consents
are found by a court to be against public policy or are ineffective pursuant
to New York statutes or judicial decisions; (iv) provisions construed as
imposing penalties or forfeitures; (v) waivers of broadly or vaguely stated
rights or unknown future rights; (vi) any provisions waiving the applicable
statute of limitations; (vii) any rights of setoff, other than as provided by
Section 151 of the Debtor and Creditor Law of the State of New York, as
interpreted by applicable judicial decisions; (viii) any provision relating to
indemnification or contribution to the extent such indemnification or
contribution relates to any claims made under the Federal securities laws or
state securities or Blue Sky laws or is otherwise limited by public policy; or
(ix) any provisions requiring written amendments, waivers or other
modifications of the Credit Agreement insofar as they suggest that the
doctrine of promissory estoppel might not apply.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the United States of America and the State of New
York; however, we are generally familiar with the General Corporation Law of
the State of Delaware and the Uniform Partnership Law as in effect in the
State of Delaware and have made such inquiries as we consider necessary to
render our opinions expressed in Paragraphs 1, 2, 3 and 5 hereof. This
opinion is limited to the effect of the present state of the laws of the
United States of America and the State of New York and, to the extent set
forth in the preceding sentence, the State of Delaware. In rendering this
opinion, we assume no obligation to revise or supplement this opinion should
the present laws, or the interpretation thereof, be changed.
This opinion is rendered to the Agent and the Banks as of the date
hereof in connection with the Credit Agreement, and may not be relied upon by
any person other than the Agent and the Banks and their permitted assignees,
or by them in any other context, and may not be furnished to any other person
or entity without our prior written consent, provided that each Bank and its
permitted assignees may provide this opinion (i) to bank examiners and other
regulatory authorities should they so request or in connection with their
normal examination, (ii) to the independent auditors and attorneys of such
Bank, (iii) pursuant to order or legal process of any court or governmental
agency, (iv) in connection with any legal action to which the Bank is a party
arising out of the transactions contemplated by the Credit Agreement, or (v)
in connection with the assignment of or sale of participations in the
Advances.
Very truly yours,
[FIRM NAME]
Schedule I
to
[FORM OF OPINION OF _____________________________________________ ]
[List lending institutions party to Credit Agreement]
EXHIBIT C-2
-----------
[FORM OF OPINION OF GENERAL COUNSEL OF
COMPUTER SCIENCES CORPORATION]
[EFFECTIVE DATE]
Citicorp USA, Inc., as Administrative Agent
under the Credit Agreement
(as hereinafter defined), and each
of the lending institutions party
to the Credit Agreement and listed
on Schedule I attached hereto
(collectively, the "Banks")
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: Credit Agreement (Long Term Facility) dated as of August 20, 1999,
among Computer Sciences Corporation, CSC Enterprises, the Banks and
Citicorp USA, Inc., as Administrative Agent for the Banks
-------------------------------------------------------------------
Ladies and Gentlemen:
I am the General Counsel of Computer Sciences Corporation, a Nevada
corporation (the "Corporation"). This opinion is being rendered to you in
connection with the Credit Agreement (Long Term Facility) dated as of August
20, 1999 (the "Credit Agreement") among the Corporation, CSC Enterprises, a
Delaware general partnership (the "Partnership"), the Banks and Citicorp USA,
Inc., as Administrative Agent for the Banks (in such capacity, the "Agent").
Terms defined in the Credit Agreement and not otherwise defined herein are
used herein as therein defined.
In rendering this opinion, I have examined originals or copies, certified
or otherwise identified to my satisfaction as being true copies, of the
following documents and instruments:
(a) the Credit Agreement;
(b) a certificate of even date herewith of the corporate secretary
of the Corporation as to corporate resolutions in respect of the Credit
Agreement and the transactions contemplated thereby, incumbencies of certain
officers and a copy of the certificate of incorporation and by-laws of the
Corporation in effect on the date hereof;
(c) a certificate of even date herewith of the corporate secretary
of the Managing Partner as to corporate resolutions in respect of the Credit
Agreement and the transactions contemplated thereby, incumbencies of certain
officers and a copy of the certificate of incorporation and by-laws of the
Managing Partner in effect on the date hereof; and
(d) certificates of recent date of the Secretary of State of the
State of Nevada as to the legal existence of each of the Corporation and the
Managing Partner in good standing under the laws of the State of Nevada.
I have also reviewed such other documents, certificates or statements of
public officials and such other persons, and have made such other
investigation of fact and law, as I deem necessary for purposes of this
opinion.
With respect to questions of fact material to the opinions expressed
below, I have, with your consent, relied upon certificates of public officials
and officers of the Corporation and the Managing Partner, in each case without
having independently verified the accuracy or completeness thereof.
Based upon the foregoing, I am of the opinion that:
1. The Corporation is a validly existing corporation in good
standing under the laws of the State of Nevada, and is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions
which require such qualification, except to the extent that failure to so
qualify would not have a material adverse effect on the Corporation. The
Corporation has all requisite corporate power and authority to own and operate
its properties, to conduct its business as presently conducted, and to
execute, deliver and perform its obligations under the Credit Agreement. The
Managing Partner is a corporation validly existing and in good standing under
the laws of the State of Nevada and has all requisite corporate power and
authority to own and operate its properties, to conduct its business as
presently conducted and to execute and deliver the Credit Agreement on behalf
of the Partnership.
2. The Credit Agreement has been duly authorized by all necessary
corporate action on the part of the Corporation, and has been duly executed
and delivered by the Corporation. The execution and delivery of the Credit
Agreement by the Managing Partner, acting in its capacity as the managing
general partner of the Partnership, has been duly authorized by all necessary
corporate action on behalf of the Managing Partner, and the Credit Agreement
has been duly executed and delivered by the Managing Partner.
3. Neither the execution and delivery of the Credit Agreement by
the Corporation, nor the consummation of the transactions contemplated
thereby, nor compliance on or prior to the date hereof with the terms and
conditions thereof, conflicts with or results in a breach of the certificate
of incorporation or bylaws of the Corporation, each as in effect on the date
hereof.
4. Neither the execution and delivery by the Corporation of the
Credit Agreement, performance of its respective obligations thereunder, nor
the consummation of the transactions contemplated thereby, constitutes a
violation of the General Corporation Law of the State of Nevada.
5. No consent, approval or authorization of, and no registration,
declaration or filing with, any administrative, governmental or other public
authority is required to be obtained or made by the Corporation under the
General Corporation Law of the State of Nevada for the execution, delivery and
performance by the Corporation of the Credit Agreement, except such filings as
may be required in the ordinary course to keep in full force and effect rights
and franchises material to the business of the Corporation and in connection
with the payment of taxes.
I am admitted to the practice of law before the United States Supreme
Court and several lower federal courts as well as the state courts of Kansas,
Pennsylvania and the District of Columbia. My opinion with respect to foreign
qualification contained in numbered paragraph 1 is based solely upon a review
of unofficial compilations of the provisions of the statutory laws of the
relevant jurisdictions. I expressly disclaim any obligation or undertaking to
update or modify this opinion as a consequence of any future changes in the
applicable laws or in the facts bearing upon this opinion.
I call to your attention that I am not admitted to the practice of law in
the State of Nevada; however I am familiar with the General Corporation Law of
the State of Nevada and have made such inquiries as I consider necessary to
render the opinions expressed herein with respect to the General Corporation
Law of the State of Nevada.
This opinion is limited to the effect of the present state of the General
Corporation Law of the State of Nevada and the laws of the relevant
jurisdictions, to the extent set forth in the preceding two paragraphs. In
rendering this opinion, I assume no obligation to revise or supplement this
opinion should the present laws, or the interpretation thereof, be changed.
This opinion is rendered to the Agent and the Banks as of the date hereof
in connection with the Credit Agreement, and may not be relied upon by any
person other than the Agent and the Banks and their permitted assignees, or by
them in any other context, and may not be furnished to any other person or
entity without my prior written consent, provided that each Bank and its
permitted assignees may provide this opinion (i) to bank examiners and other
regulatory authorities should they so request or in connection with their
normal examination, (ii) to the independent auditors and attorneys of such
Bank, (iii) pursuant to order or legal process of any court or governmental
agency, (iv) in connection with any legal action to which the Bank is a party
arising out of the transactions contemplated by the Credit Agreement, or (v)
in connection with the assignment of or sale of participations in the
Advances.
Very truly yours,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Schedule I
to
[FORM OF OPINION OF GENERAL COUNSEL OF
COMPUTER SCIENCES CORPORATION]
[List lending institutions party to Credit Agreement]
EXHIBIT D
[FORM OF EXTENSION REQUEST]
CSC ENTERPRISES,
A DELAWARE GENERAL PARTNERSHIP
COMPUTER SCIENCES CORPORATION
REQUEST FOR EXTENSION OF COMMITMENT
TERMINATION DATE
[Date]
[Name and Address of Eligible Lender]
Pursuant to that certain Credit Agreement (Long Term Facility) dated
as of August 20, 1999 (as amended from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined) among Computer
Sciences Corporation (the "Corporation"), CSC Enterprises (the "Partnership"),
certain Lenders party thereto and Citicorp USA, Inc., as Administrative Agent
for said Lenders (the "Agent"), this represents the Partnership's and the
Corporation's joint request to extend the Commitment Termination Date of each
Eligible Lender to __________, ______ pursuant to Section 2.16 of the
Credit Agreement.
Each of the undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
effectiveness of the extension requested hereby ("Proposed Extension"):
(a) the representations and warranties contained in Article IV of
the Credit Agreement are correct, before and after giving
effect to the Proposed Extension, except to the extent that
any such representation and warranty expressly relates only to
an earlier date, in which case they were correct as of such
earlier date;
(b) no event has occurred and is continuing, or would result from
the Proposed Extension, which constitutes an Event of Default
or a Potential Event of Default; and
(c) the balance sheet of the Corporation and its Subsidiaries as
at ___________, ______ , and the related statements of
[FN]
Insert date which is one year after the latest Commitment Termination
Date in effect.
Insert date of the most recent audited balance sheet of the Corporation
and its Subsidiaries.
income and retained earnings of the Corporation and its
Subsidiaries for the fiscal year then ended, and the balance
sheet of the Partnership and its Subsidiaries as at
_________, ______ , and the related statements of income
and retained earnings of the Partnership for the fiscal year
then ended, copies of each of which have been furnished to
each Lender, fairly present the financial condition of the
Corporation and its Subsidiaries or the Partnership and its
Subsidiaries, as the case may be, as at such applicable date
and the results of the operations of Corporation and its
Subsidiaries or the Partnership and its Subsidiaries, as the
case may be, for the fiscal year ended on such applicable
date, all in accordance with GAAP consistently applied, and
since __________, ____ , and ___________, ____,
respectively, there has been no material adverse change in the
business, condition (financial or otherwise), operations or
properties of the Corporation and its Subsidiaries, taken as a
whole, or of the Partnership and its Subsidiaries, taken as a
whole.
The Corporation hereby further certifies that after giving effect to
the Proposed Extension, the aggregate amount of the Guarantied Obligations (as
defined in the Credit Agreement), together with all other Debt (including any
Advances under the Credit Agreement) incurred by Corporation pursuant to the
resolutions of the Board of Directors of the Corporation authorizing the
Credit Agreement, does not exceed the aggregate amount of Debt authorized by
such resolutions.
Please indicate your consent to such extension of the Commitment
Termination Date by signing the attached copy of this request in the space
provided below and returning the same to the undersigned by _______________,
_____ .
Very truly yours,
CSC ENTERPRISES, a Delaware general
partnership
By CSC ENTERPRISES, INC.,
Its Managing Partner
By: _____________________
Title:
[FN]
Insert date of the most recent audited balance sheet of the Partnership
and its Subsidiaries.
Insert fifteenth day prior to the Current Anniversary Date (as defined
in Section 2.16 of Credit Agreement).
COMPUTER SCIENCES CORPORATION
By: __________________________
Title:
The undersigned Eligible Lender
hereby consents to the extension
of its Commitment Termination
Date as requested above. This
consent is subject to the terms
of Section 2.16 of the Credit
Agreement.
DATED: ___________________
[ELIGIBLE LENDER]
By: _____________________
Title: