EXHIBIT 10.27
U.S. $100,000,000
CREDIT AGREEMENT
(SHORT TERM FACILITY)
Dated as of September 15, 1994
Among
CSC ENTERPRISES,
a Delaware general partnership
as Borrower
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and
COMPUTER SCIENCES CORPORATION
a Nevada corporation
as Borrower and Guarantor
-- -------- --- ---------
and
THE BANKS NAMED HEREIN
as Banks
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and
CITICORP USA, INC.
as Agent
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS..................... 1
SECTION 1.01. Certain Defined Terms................................... 1
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SECTION 1.02. Computation of Time Periods............................. 13
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SECTION 1.03. Accounting Terms........................................ 13
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES.................... 14
SECTION 2.01. The Advances............................................ 14
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SECTION 2.02. Making the Advances..................................... 14
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SECTION 2.03. Facility Fees........................................... 18
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SECTION 2.04. Termination and Reduction of the Commitments............ 19
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SECTION 2.05. Repayment and Prepayment of Advances.................... 19
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SECTION 2.06. Interest on Advances.................................... 21
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SECTION 2.07. Interest Rate Determination............................. 21
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SECTION 2.08. Voluntary Conversion or Continuation of Advances........ 22
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SECTION 2.09. Increased Costs......................................... 23
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SECTION 2.10. Payments and Computations............................... 24
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SECTION 2.11. Taxes................................................... 25
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SECTION 2.12. Sharing of Payments, Etc................................ 27
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SECTION 2.13. Evidence of Debt........................................ 28
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SECTION 2.14. Use of Proceeds......................................... 28
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SECTION 2.15. Extension of the Commitment Termination Date............ 29
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SECTION 2.16. Substitution of Lenders................................. 30
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ARTICLE III
CONDITIONS OF LENDING.......................... 30
SECTION 3.01. Condition Precedent to Effective Date................... 30
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SECTION 3.02. Conditions Precedent to Each Borrowing.................. 32
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES...................... 32
SECTION 4.01. Representations and Warranties of the Partnership....... 32
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SECTION 4.02. Representations and Warranties of the Corporation....... 35
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ARTICLE V
COVENANTS................................ 40
SECTION 5.01. Affirmative Covenants of the Partnership................ 40
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SECTION 5.02. Negative Covenants...................................... 43
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SECTION 5.03. Affirmative Covenants of the Corporation................ 46
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SECTION 5.04. Negative Covenants of the Corporation................... 50
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ARTICLE VI
EVENTS OF DEFAULT............................ 52
SECTION 6.01. Events of Default....................................... 52
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ARTICLE VII
THE AGENT................................ 57
SECTION 7.01. Authorization and Action................................ 57
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SECTION 7.02. Agent's Reliance, Etc................................... 57
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SECTION 7.03. CUSA and Affiliates..................................... 58
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SECTION 7.04. Lender Credit Decision.................................. 58
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SECTION 7.05. Indemnification......................................... 58
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SECTION 7.06. Successor Agent......................................... 59
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ARTICLE VIII
THE GUARANTY............................... 59
SECTION 8.01. Guaranty of the Guarantied Obligations.................. 59
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SECTION 8.02. Liability of the Guarantor.............................. 60
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SECTION 8.03. Waivers by the Guarantor................................ 63
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SECTION 8.04. Payment by the Guarantor................................ 64
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SECTION 8.05. Subrogation............................................. 64
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SECTION 8.06. Subordination of Other Obligations...................... 65
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SECTION 8.07. Expenses................................................ 65
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SECTION 8.08. Continuing Guaranty; Termination of Guaranty............ 65
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SECTION 8.09. Authority of the Guarantor or the Partnership........... 65
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SECTION 8.10. Financial Condition of the Partnership.................. 65
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SECTION 8.11. Rights Cumulative....................................... 66
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SECTION 8.12. Bankruptcy; Post-Petition Interest;
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Reinstatement of the Guaranty........................... 66
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SECTION 8.13. Notice of Events........................................ 67
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SECTION 8.14. Set Off................................................. 68
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SECTION 8.15. Determination of the Guarantied Obligations............. 68
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SECTION 8.16. Successors and Assigns.................................. 68
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SECTION 8.17. Further Assurances...................................... 69
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ARTICLE IX
MISCELLANEOUS.............................. 69
SECTION 9.01. Amendments, Etc......................................... 69
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SECTION 9.02. Notices, Etc............................................ 69
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SECTION 9.03. No Waiver; Remedies..................................... 70
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SECTION 9.04. Costs, Expenses and Indemnification..................... 70
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SECTION 9.05. Right of Set-off........................................ 72
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SECTION 9.06. Binding Effect.......................................... 72
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SECTION 9.07. Assignments and Participations.......................... 72
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SECTION 9.08. Governing Law........................................... 75
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SECTION 9.09. Execution in Counterparts............................... 75
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SECTION 9.10. Consent to Jurisdiction; Waiver of Immunities........... 75
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SECTION 9.11. Waiver of Trial by Jury................................. 76
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SECTION 9.12. Limited Liability of Certain Partners of the Partnership 76
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SECTION 9.13. Survival of Warranties.................................. 77
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SECTION 9.14. Severability............................................ 77
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SECTION 9.15. Headings................................................ 77
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Schedule I - List of Applicable Lending Offices
Exhibit A - Notice of Borrowing
Exhibit B - Assignment and Acceptance
Exhibit C-1 - Form of Opinion of Special Counsel for the
Partnership and the Corporation
Exhibit C-2 - Form of Opinion of General Counsel of the
Corporation
Exhibit D - Form of Opinion of Counsel to the Agent
Exhibit E - Form of Extension Request
iii
Exhibit F - Schedule of Owned Real Estate (Partnership)
Exhibit G - Schedule of Owned Real Estate (Corporation)
iv
CREDIT AGREEMENT
(SHORT TERM FACILITY)
Dated as of September 15, 1994
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 banks (the "Banks")
listed on the signature pages hereof, and Citicorp USA, Inc. ("CUSA"), as agent
(the "Agent") for the Lenders hereunder, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Adjusted Eurodollar Rate" means, for any Interest Period for each
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Eurodollar Rate Advance comprising part of the same 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 Eurodollar Rate Advance comprising part of such
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 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
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Section 2.07.
"Advance" means an advance by a Lender to a Borrower as part of 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 Advance.
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"Affiliate" means, as to any Person, any other Person that, directly
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or indirectly, controls, is controlled by or is under common control with
such Person or is a director or 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 (Short Term Facility), as this
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Credit Agreement (Short Term Facility) may be 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.
"Applicable Margin" means, for any period for which any interest
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payment 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.
"Base Rate" means, for any period, a fluctuating interest rate per
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annum 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
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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 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
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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 Advance which bears interest as provided
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in Section 2.06(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
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of them, together.
"Borrowing" means a borrowing consisting of Advances of the same Type
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made on the same day to the same Borrower pursuant to the same Notice of
Borrowing by each of the Lenders pursuant to Section 2.01.
"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
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(whether 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.
3
"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(m).
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"Citibank" means Citibank, N.A.
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"Code" means the Internal Revenue Code of 1986, as amended.
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"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,
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September 14, 1995, or such later date to which the Commitment Termination
Date of such Lender may be extended from time to time pursuant to Section
2.15 (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
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(A) 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 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 of the Corporation and its Subsidiaries.
"Consolidated Total Capitalization" means, as of any date of
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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.
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"Convert," "Conversion" and "Converted" each refers to a conversion of
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Advances of one Type into Advances of another Type pursuant to Section
2.08.
"Corporation" means Computer Sciences Corporation, a Nevada
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corporation, in its capacity as a Borrower hereunder, in its capacity as
the Guarantor hereunder or both, as the context may require.
"CP Reduction" has the meaning specified in Section 2.01.
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"CSC Partners" means those partners of the Partnership which are
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wholly-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:
Daily Margin when
Daily Margin when Utilization Ratio
Utilization Ratio is greater than or
is less than 0.50:1.00 equal to 0.50:1.00
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Level 1 0.150% 0.250%
Level 2 0.175% 0.325%
Level 3 0.250% 0.400%
Level 4 0.325% 0.475%
For purposes of this definition, (a) "Utilization Ratio" means, as of any
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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), (b) if any
change in the rating established by S&P or Moody's with respect to Long-
Term Debt 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, (c) if the ratings established by S&P and Moody's with
respect to Long-Term Debt are both unavailable for any reason for any day,
then the applicable Level for such day shall be deemed to be Level 4 (or,
if the Majority Lenders
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consent in writing, such other Level as may be reasonably determined by the
Majority Lenders from a rating with respect to Long-Term Debt for such day
established by another rating agency reasonably acceptable to the Majority
Lenders), and (d) if the rating established by S&P or Moody's (but not both
ratings) with respect to Long-Term Debt is unavailable for any reason for
any day, then the applicable Level shall be set by reference to the rating
of S&P or Moody's that is available for such day.
"Debt" means, with respect to any Person, (i) indebtedness of such
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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.
"Domestic Lending Office" means, with respect to any Lender, the
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office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, 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 September 15, 1994, 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
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in 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
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be unreasonably withheld, and provided further that no such approval shall
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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,
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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
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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
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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.
"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
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office of such Lender specified as its
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"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 Advance which bears interest as
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provided in Section 2.06(b).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
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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 Short Term Facility Credit Agreement" means the Credit
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Agreement (Short Term Facility) dated as of November 2, 1993, among the
Partnership, the lenders party thereto and CUSA, as agent for such lenders.
"Existing Short Term Facility Guaranty Agreement" means the Guaranty
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Agreement (Short Term Facility) dated as of November 2, 1993, among the
Partnership and CUSA, as agent.
"Federal Funds Rate" means, for any period, a fluctuating interest
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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.
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"GAAP" means generally accepted accounting principles set forth in the
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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
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hereunder.
"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,
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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 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,
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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 Advances
comprising part of the same 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
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shall be extended to occur on the next succeeding Business Day,
provided, that if such extension would cause the last day of such
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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
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each Eligible Assignee that shall become a party hereto pursuant to Section
9.07.
"Level" means Level 1, Level 2, Level 3 or Level 4, as the case may
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be.
"Level 1" means that, as of any date of determination, the higher of
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the ratings established by S&P and Moody's with respect to Long-Term Debt
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
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the ratings established by S&P and Moody's with respect to Long-Term Debt
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
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the ratings established by S&P and Moody's with respect to Long-Term Debt
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
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the ratings established by S&P and Moody's with respect to Long-Term Debt
is equal to or lower than BBB+ or Baa1, as applicable, as of such date of
determination.
"Lien" means any lien, mortgage, pledge, security interest, charge or
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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.
"Long Term Facility Agent" means CUSA, or any Person serving as
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successor agent under the Long Term Facility Credit Agreement, in its
capacity as agent for the Long Term Facility Lenders under the Long Term
Facility Credit Agreement.
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"Long Term Facility Credit Agreement" means the Credit Agreement (Long
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Term Facility) of even date herewith among the Corporation, the
Partnership, the Long Term Facility Lenders and the Long Term Facility
Agent, as it may be amended, supplemented or otherwise modified from time
to time.
"Long Term Facility Lenders" means the lenders listed on the signature
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pages of the Long Term Facility Credit Agreement and each Eligible Assignee
(as such term is defined in the Long Term Facility Credit Agreement) that
has become a party to the Long Term Facility Credit Agreement pursuant to
Section 9.07 thereof.
"Majority Lenders" means at any time Lenders holding at least 66-2/3%
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of the then aggregate unpaid principal amount of the Advances held by
Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 66-2/3% of the Commitments (provided that, for purposes
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hereof, neither a Borrower, nor any of its Affiliates, if a Lender, shall
be included in (i) the Lenders holding such amount of the Advances or
having such amount of the Commitments or (ii) determining the aggregate
unpaid principal amount of the Advances or the total Commitments).
"Managing Partner" means CSC Enterprises, Inc., a Nevada corporation
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and an indirect wholly-owned Subsidiary of the Corporation.
"Moody's" means Moody's Investors Service, Inc.
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"Multiemployer Plan" means a "multiemployer plan" as defined in
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Section 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
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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
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capital stock or assets, merger or otherwise)
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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 Borrowing" has the meaning specified in Section 2.02(a).
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"Notice of Conversion/Continuation" has the meaning specified in
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Section 2.08.
"Partnership" means CSC Enterprises, a Delaware general partnership,
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in its capacity as a Borrower hereunder.
"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.
"Processing Agreement" has the meaning specified in Section 4.01(m).
--------------------
"Reference Banks" means Chemical Bank, Citibank and Morgan Guaranty Trust
Company of New York.
"Register" has the meaning specified in Section 9.07(c).
--------
"S&P" means Standard & Poor's Corporation.
---
12
"SEC" means the Securities and Exchange Commission and any successor
---
agency.
"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 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
2.04 or 6.01.
"Type" means, with reference to an 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
13
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 ADVANCES. Each Lender severally agrees, on the
------------
terms and conditions hereinafter set forth, to make 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 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 2.04 (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 principal amount of Commercial Paper
outstanding (such deemed use of the aggregate amount of the Commitments being a
"CP Reduction"), provided that the Commitments of the Lenders shall not be
-------- ----
deemed to be so used (and therefore the Commitments shall not be reduced by a CP
Reduction) in the case of any requested Borrowing the proceeds of which are used
to repay Commercial Paper. Each 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
shall consist of 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 2.05(c) and reborrow under this Section
2.01.
SECTION 2.02. MAKING THE ADVANCES. (a) Each 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 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
Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the
proposed Borrowing to the Agent, which shall give to each Lender prompt notice
thereof by telecopier, telex or cable. Each such notice of a Borrowing (a
"Notice of
14
Borrowing") shall be by telecopier, telex or cable, confirmed immediately in
writing, in substantially the form of Exhibit A hereto, specifying therein the
requested (i) date of such Borrowing, (ii) Type of Advances comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a
Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for
each such Advance. A Borrower may, subject to the conditions herein provided,
borrow more than one 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 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 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 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
Borrowing or with respect to the Conversion or continuance of any Borrowing
if the aggregate amount of such Borrowing or such Conversion or continuance
is less than $5,000,000;
(ii) there shall be no more than four 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 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
15
any, shall be Base Rate Advances; to the extent that such affected
Eurodollar Rate 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 Borrowing or any subsequent 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 Advance comprising such 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 Borrowing, the right of a Borrower
to select Eurodollar Rate Advances for such Borrowing or any subsequent
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 Advance comprising such 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 Borrowing, notify the Agent that the Adjusted
Eurodollar Rate for Eurodollar Rate Advances comprising such Borrowing will
not adequately reflect the cost to such Majority Lenders of making, funding
or maintaining their respective Eurodollar Rate Advances for such
Borrowing, the right of a Borrower to select Eurodollar Rate Advances for
such Borrowing or any subsequent 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 Advance comprising such
Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower requesting the proposed Borrowing. In the case of any Borrowing which
the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower requesting the proposed 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 Advance to be made by such Lender as part of such Borrowing
or by reason of the termination of hedging or other similar arrangements, in
each
16
case when such 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 Borrowing for such 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 Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such Borrowing, the Agent may assume that
such Lender has made such portion available to the Agent on the date of such
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 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 case of such
Borrower, the interest rate applicable at the time to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Agent such corresponding amount, such amount so repaid
shall constitute such Lender's Advance as part of such Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
17
SECTION 2.03. 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 CP 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, 1994, 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 CP Reduction) in effect during the period for which
such payment is to be made times (ii) the weighted average rate per annum that
is derived from the following rates: (a) a rate of 0.075% per annum with
respect to each day during such period that the higher of the ratings
established by S&P and Moody's with respect to Long-Term Debt was Level 1, (b) a
rate of 0.100% 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 0.150% 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 established
by S&P or Moody's with respect to Long-Term Debt 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 announced. If the ratings established by S&P and
Moody's with respect to Long-Term Debt are both unavailable 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 Level 4 (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 for such day established by
another rating agency reasonably acceptable to the Majority Lenders. If the
rating established by S&P or Moody's (but not both ratings) with respect to
Long-Term Debt is unavailable for any reason for any day, then the applicable
Level shall be set by reference to the rating of S&P or Moody's that is
available for such day.
18
SECTION 2.04. TERMINATION AND REDUCTION OF THE COMMITMENTS.
--------------------------------------------
(a) Mandatory Termination. In the event that a mandatory prepayment in
---------------------
full of the Advances is required by Section 2.05(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 sum of (i) the aggregate principal amount of the Advances then outstanding
and (ii) the aggregate principal amount of Commercial Paper 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 2.05. REPAYMENT AND PREPAYMENT OF ADVANCES.
------------------------------------
(a) Mandatory Repayment on Termination Date. Each Borrower shall repay
---------------------------------------
the outstanding principal amount of each 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 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
19
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 Advances made to the Partnership, together with all interest accrued thereon
to the date of prepayment, and will reimburse the Lenders in respect thereof
pursuant to Section 9.04(b).
(c) Voluntary Prepayments of Borrowings. Neither Borrower shall have
-----------------------------------
any right to prepay any principal amount of any Advances other than as provided
in this subsection (c). 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
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).
(d) 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 Advance made by such Lender to the other Borrower or to
pay any interest on any Advance made by such Lender to the other Borrower.
20
SECTION 2.06. INTEREST ON ADVANCES. Each Borrower shall pay interest
--------------------
accrued on the principal amount of each Advance that was made to such Borrower
outstanding from time to time from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such 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, 1994, and on the
Termination Date of the applicable Lender; provided that any amount of
--------
principal, interest, fees and other amounts payable under this Agreement (other
than the principal amount of Eurodollar Rate 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 Advance is a Eurodollar Rate
------------------------
Advance, a rate per annum equal at all times during the Interest Period for such
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 2.07. 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
21
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
2.06(a) or 2.06(b), and the applicable rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate under Section
2.06(b).
SECTION 2.08. VOLUNTARY CONVERSION OR CONTINUATION OF 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 Borrowing made to such
Borrower into Advances of another Type and (2) upon the expiration of any
Interest Period applicable to Advances which are Eurodollar Rate Advances made
to such Borrower, continue all (or, subject to Section 2.02(b), any portion of)
such Advances as Eurodollar Rate Advances and the succeeding Interest Period(s)
of such continued Advances shall commence on the last day of the Interest Period
of the Advances to be continued; provided, however, that any Conversion of any
-------- -------
Eurodollar Rate Advances into 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 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 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 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 2.08, 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
Advance be made or continued
22
as, or Converted into, a Eurodollar Rate Advance after the expiration of any
Interest Rate then in effect for that Advance.
SECTION 2.09. 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 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 2.09 and
2.11 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
23
request of a Borrower or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 2.10. 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 2.09 or 2.11 or, to the extent the Termination Date
is not the same for all Lenders, pursuant to Section 2.05(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 Advances (other than
amounts payable pursuant to Section 2.09 or 2.11) 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
24
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.
(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 2.11. TAXES. (a) Any and all payments by a Borrower hereunder
-----
shall be made, in accordance with Section 2.10, 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
25
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 2.11) 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
2.11) 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
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 2.11), 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
26
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 2.11(a).
(f) For any period with respect to which a Lender has failed to provide
a Borrower with the appropriate form described in Section 2.11(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 2.11(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 2.11 shall survive the payment in full of principal and interest
hereunder.
SECTION 2.12. 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 Advances made by it (other than
pursuant to Section 2.09 or 2.11 or, to the extent the Termination Date is not
the same for all Lenders, pursuant to Section 2.05(a)) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the 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 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
27
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 2.12 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 2.13. 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.
(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 2.14. USE OF PROCEEDS.
---------------
(a) Advances shall be used by the Borrowers for Commercial Paper
backup, for Non-Hostile Acquisitions and for general corporate purposes.
(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
G,
28
Regulation U, Regulation T, 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 2.15. EXTENSION OF THE COMMITMENT TERMINATION DATE. The
--------------------------------------------
Borrowers may, not later than 30 days prior to the Commitment Termination Date
then in effect for all Lenders (the "Current Date"), and not more than once in
any calendar year, from time to time jointly request that the Commitment
Termination Date of all Lenders 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 E hereto. The Agent shall promptly notify
each Lender of its receipt of such Extension Request. On or prior to the tenth
day (the "Determination Date") prior to the Current Date, each Lender shall
notify the Agent and the Borrowers of its willingness or unwillingness to extend
its Commitment Termination Date hereunder and its commitment termination date
under the Long Term Facility Credit Agreement. Any 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, Lenders representing 66-2/3% or more of the aggregate amount
of the Commitments of all 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 Lender (each a "Consenting Lender") that has
consented on or prior to the Determination Date to so extend shall be extended
to a date that is 364 days from the earliest date that Lenders representing at
least 66-2/3% of the aggregate amount of the Commitments shall have consented to
such extension, such date to be notified to the Borrowers and the Lenders by the
Agent; provided that no such consent of any Lender shall be effective prior to
--------
such earliest date. Thereafter, (i) for each Consenting Lender, the term
"Commitment Termination Date" shall at all times refer to such date, unless it
is later extended pursuant to this Section 2.15, and (ii) for each 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 Current Date. In the event that, as of the Determination
Date, the Consenting Lenders represent less than 66-2/3% of the aggregate amount
of the Commitments of all 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 and each Lender's Commitment Termination Date shall continue
to be the Current Date. In no event shall the
29
Commitment Termination Date of any Lender be extended to a date that is more
than 364 days from the earliest date that Lenders representing at least 66-2/3%
of the aggregate amount of the Commitments shall have consented to such
extension.
SECTION 2.16. SUBSTITUTION OF LENDERS. If any Lender requests
-----------------------
compensation from a Borrower under Section 2.09(a) or (b) or if any Lender
declines to extend its Commitment Termination Date pursuant to Section 2.15, 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 compensation under
Section 2.09 for any costs incurred by it prior to its replacement.
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 (k)) 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's counsel (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.
30
(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) Executed originals of this Agreement and the other documents to
which the Partnership or the Corporation is a party;
(i) A favorable opinion of Gibson, Dunn & Crutcher, special counsel for
the Partnership and the Corporation, substantially in the form of Exhibit C-1
hereto, and a favorable opinion of Hayward D. Fisk, Esq., General Counsel of
the Corporation, substantially in the form of Exhibit C-2 hereto;
(j) A favorable opinion of O'Melveny & Myers, counsel for the Agent,
substantially in the form of Exhibit D hereto;
(k) Financial statements of the Corporation and its Subsidiaries
specified in Section 4.02(e);
(l) Copies of the Long Term Facility Credit Agreement executed by the
Borrowers and each of the other parties thereto and;
31
(m) Evidence satisfactory to the Agent of (i) the absence of any
indebtedness of the Partnership under the Existing Short Term Facility Credit
Agreement (including Borrowings and accrued interest), and (ii) the payment
of fees payable, if any, by the Partnership or the Corporation under the
Existing Short Term Facility Credit Agreement and the Existing Short Term
Facility Guaranty Agreement.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING. The obligation
--------------------------------------
of each Lender to make an Advance on the occasion of each Borrowing (including
the initial Borrowing) shall be subject to the further conditions precedent that
(i) Agent shall have received a Notice of Borrowing with respect thereto in
accordance with Section 2.02 and (ii) on the date of such Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing and the acceptance by the applicable Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by the
Partnership and the Corporation that on the date of such 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
Borrowing, before and after giving effect to such 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
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, validly existing and in good standing under the laws of the
jurisdiction indicated at the beginning of this Agreement.
32
(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.
(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 1, 1994, 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 1, 1994.
(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.
33
(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 G, 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) 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.
(k) Insurance. The Partnership and its Subsidiaries have in full force
---------
insurance coverage of their respective properties, assets and business
(including casualty, general
34
liability, products liability and business interruption insurance) that is
(i) no less protective in any material respect than the insurance the
Partnership and its Subsidiaries have carried in accordance with their past
practices or (ii) prudent given the nature of the business of the Partnership
and its Subsidiaries and the prevailing practice among companies similarly
situated.
(l) 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. (S) 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 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. (S)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.
(m) Equifax Put. The Partnership has the right to sell to The Credit
-----------
Bureau, Incorporated of Georgia ("CBI"), and require CBI to purchase and
assume, the Accounts Management Assets and Liabilities and the Subsidiaries'
Assets and Liabilities (each as defined in the Processing Agreement referred
to below) on the terms set forth in Article IV of that certain Agreement for
Computerized Credit Reporting Services and Options to Purchase and Sell
Assets dated as of August 1, 1988, without giving effect to any amendments
thereto, among CBI, Equifax Inc., the Corporation and certain Subsidiaries of
the Corporation (the "Processing Agreement").
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
35
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 a corporation or a partnership, as the case may be, duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation. Each such Subsidiary is duly
qualified to do business as a foreign corporation or foreign partnership, as
the case may be, 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 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 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 1, 1994, 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,
36
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 1, 1994.
(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 G, 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
37
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.
(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.
38
(l) Insurance. The Corporation and its Subsidiaries 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 (i) no less protective in any material
respect than the insurance the Corporation and its Subsidiaries have carried
in accordance with their past practices or (ii) prudent given the nature of
the business of the Corporation and its Subsidiaries and the prevailing
practice among companies similarly situated.
(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. (S) 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. (S)6901 et seq. (1976) and the regulations
-- ---
thereunder, 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 to the Partnership. (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.
39
(o) Equifax Put. The Partnership has the right to sell to CBI, and
-----------
require CBI to purchase and assume, the Accounts Management Assets and
Liabilities and the Subsidiaries' Assets and Liabilities (each as defined in
the Processing Agreement) on the terms set forth in Article IV of the
Processing Agreement.
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 100 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
40
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;
(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;
41
(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;
(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(l)
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
42
on the financial condition of the Partnership and its Subsidiaries,
taken as a whole;
(xi) promptly after any change in the rating established by S&P or
Moody's, as applicable, with respect to Long-Term Debt, a notice of such
change, which notice shall specify the new rating, the date on which
such change was publicly announced, 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.
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:
43
(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
44
in excess of $5,000,000 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 Exhibit F 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 owns 80% or more of the voting stock thereof), or enter into any
partnership, joint venture, syndicate, pool or other combination, unless no
Event of Default or Potential Event of Default has occurred and is continuing
or would result therefrom.
(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
45
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:
(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 50 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 100 days after
the end of each fiscal year of the
46
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 or, if any such condition or event existed or exists,
specifying the nature and period of existence
47
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 certain of the restrictions
contained in Section 5.04.
(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 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;
48
(viii) 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.
(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 Corporation or any of its
Subsidiaries, of the type described in Section 4.02(f).
(x) 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;
(xi) promptly after any change in the rating established by S&P or
Moody's, as applicable, with respect to Long-Term Debt, a notice of such
change, which notice shall specify the new rating, the date on which
such change was publicly announced, and such other information with
respect to such change as any Lender through Agent may reasonably
request; and
(xii) 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.
(d) Maintenance of Insurance. The Corporation will and will cause each
------------------------
of its Subsidiaries to maintain insurance with
49
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.
(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
--------
50
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 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
$5,000,000 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 Exhibit G 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.
51
(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 owns 80% or more of the voting stock thereof), or enter into any
partnership, joint venture, syndicate, pool or other combination, unless no
Event of Default or Potential Event of Default has occurred and is continuing
or would result therefrom.
(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.
(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.
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
52
(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
(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) (i) 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 $25,000,000 in
the aggregate (but excluding Debt arising under this Agreement or under the
Long Term Facility Credit Agreement (but not excluding the Debt arising under
the Guaranty (as defined in the Long Term Facility Credit 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 (ii) either Borrower shall
53
fail to pay any principal of or premium or interest on any Debt of such
Borrower which is outstanding under the Long Term Facility Credit Agreement,
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
Long Term Facility Credit Agreement; or any other event shall occur or
condition shall exist under the Long Term Facility Credit Agreement and shall
continue after the applicable grace period, if any, specified in the Long
Term Facility Credit Agreement, 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
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 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 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
$25,000,000 shall be rendered against the
54
Corporation, the Partnership or any of their respective 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;
(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
55
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 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.
56
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
57
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 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 Advances then held by each of them (or if no
Advances are at the time outstanding or if any 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
58
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 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. (S)
362(a)). The term
59
"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.
(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
60
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 2.15 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 nonjudicial 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
61
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 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.
62
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, 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
63
(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. (S) 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
64
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 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 Loans may be
--------------------------------------
granted to the Partnership or continued from
65
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. (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
66
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.
67
SECTION 8.14. SET OFF. In addition to any other rights any Lender or
-------
Agent may have under law or in equity, if any amount shall at any time be due
and owing by the Guarantor to any Lender or Agent under this Guaranty, such
Lender or Agent is authorized at any time or from time to time, without 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 any Lender or Agent owing to the
Guarantor and any other property of the Guarantor held by any Lender or Agent to
or for the credit or the account of the Guarantor against and on account of the
Guarantied Obligations and liabilities of Guarantor to any Lender or Agent under
this Guaranty.
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
68
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 the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the 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 2.15 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.
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
69
delivered, if to the Corporation, at its address at Computer Sciences
Corporation, 2100 East Grand Avenue, El Segundo, California, 90245, Attention:
Leon J. Level; if to the Partnership, at its address at CSC Enterprises, 2100 E.
Grand Avenue, El Segundo, California 90245, Attention: Leon J. 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 Citicorp Securities, Inc., One Court Square, Long Island
City, New York 10020, Attention: Michael Wright/Ian Kelly, and (B) for all other
notices and communications at its address at Citicorp USA, Inc., One Sansome
Street, San Francisco, California 94104, Attention: Cindy Lee; 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.
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
70
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 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 2.05 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
71
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 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 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. 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 Short Term Facility Credit Agreement and (ii) the
Existing Short Term Facility Guaranty 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 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, (ii) after giving effect to
any such assignment, (1) the assigning Lender shall no longer have any
Commitment or (2)
72
the amount of the Commitment of both 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 the lesser of (A) $10,000,000 and (B) the quotient derived from dividing
the product of (x) $10,000,000 times (y) the aggregate amount of all Commitments
-----
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) by $250,000,000, (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 $2,500. 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 a Federal Reserve Bank; provided, that no
--------
such pledge or assignment shall release such Lender from any of its obligations
hereunder.
(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 or thereto; (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
73
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 $2,500 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, 2100 E. Grand Avenue, El Segundo,
California 90245, Attention: Leon J. Level, Telephone No.: (310) 615-1728,
Facsimile No.: (310) 322-9767.
74
(e) 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.
(f) 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
75
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 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 CERTAIN PARTNERS OF THE PARTNERSHIP.
--------------------------------------------------------
The Agent and each Lender agree for themselves and their successors and assigns
that any claim against Equifax Ventures Inc., CBI Ventures Inc. and Merel
Corporation or their
76
successors (collectively, the "Limited Liability Partners") 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 Partners, any right
to proceed against any Limited Liability Partner individually or any of their
respective assets, other than with respect to their 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, any of
the Limited Liability Partners for the purpose of obtaining jurisdiction over
the Partnership or any of the Limited Liability Partners.
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.
77
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.
COMPUTER SCIENCES CORPORATION,
a Nevada corporation,
as Borrower and as Guarantor
By:/s/ Leon J. Level
-------------
Title: Vice President
CSC ENTERPRISES,
a Delaware general partnership,
as Borrower
By CSC ENTERPRISES, INC.
Its Managing Partner
By:/s/ Leon J. Level
-------------
Title: Vice President
CITICORP USA, INC.,
as Agent
By:/s/ Barbara A. Cohen
----------------
Vice President
S-1
Commitment Banks
- ---------- -----
$10,000,000.00 CITICORP USA, INC.
By:/s/ Barbara A. Cohen
----------------
Title: Vice President
$10,000,000.00 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:/s/ Lori Kannegieter
----------------
Title: Vice President
$10,000,000.00 CHEMICAL BANK
By:/s/ Jeffery Howe
------------
Title: Vice President
$5,000,000.00 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By:/s/ Robert M. Osieski
-----------------
Title: Vice President
$5,000,000.00 J.P. MORGAN DELAWARE
By:/s/ Diana H. Imhof
--------------
Title: Vice President
$6,000,000.00 THE BANK OF NEW YORK
By:/s/ Daniel Black
------------
Title: Senior Vice President
S-2
$6,000,000.00 BARCLAYS BANK PLC
By:/s/ Philip S.A. Capparis
--------------------
Title: Associate Director
By__________________________
Title:
$6,000,000.00 THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ Randall Taylor
-------------
Title: Vice President
$6,000,000.00 MELLON BANK, N.A.
By:/s/ Edwin H. Wiest
--------------
Title: First Vice President
$6,000,000.00 NATIONSBANK OF TEXAS, N.A.
By:/s/ Michele M. Shaforth
-------------------
Title: Senior Vice President
$6,000,000.00 NBD BANK, N.A.
By:/s/ James R. Frye
-------------
Title: First Vice President
$4,000,000.00 BANK BRUSSELS LAMBERT
By:/s/ Eric Hollanders
---------------
Title: Senior Vice President
By:/s/ Gerrit Verlodt
--------------
Title: Senior Vice President
S-3
$4,000,000.00 THE BANK OF NOVA SCOTIA
By:/s/ James M. Spanier
----------------
Title: Relationship Manager
$4,000,000.00 CORESTATES BANK, N.A.
By:/s/ Susan M. Atkinson
-----------------
Title: Vice President
$4,000,000.00 FIRST INTERSTATE BANK OF CALIFORNIA
By:/s/ William J. Baird
----------------
Title: Vice President
$4,000,000.00 NATIONAL WESTMINSTER BANK PLC
By:/s/ Daniel R. Dornblaser
--------------------
Title: Vice President
$4,000,000.00 SOCIETE GENERALE
By:/s/ Jean-Gabriel Langlois
---------------------
Title: Vice President & Manager
$100,000,000 Total of the Commitments
S-4
SCHEDULE I
COMPUTER SCIENCES CORPORATION AND CSC ENTERPRISES
CREDIT AGREEMENT (SHORT TERM FACILITY)
Name of Bank Domestic Lending Office Eurodollar Lending Office
- ------------ ----------------------- -------------------------
CITICORP USA, INC. c/o Citicorp Securities, Inc . c/o Citicorp Securities, Inc.
One Court Square One Court Square
Long Island City, NY 11120 Long Island City, NY 11120
Attn: Mark Wilson Attn: Mark Wilson
Ian Kelly Ian Kelly
BANK OF AMERICA NATIONAL TRUST 1850 Gateway Blvd. 1850 Gateway Blvd.
AND SAVINGS ASSOCIATION 4th Floor 4th Floor
Concord, CA 94520 Concord, CA 94520
CHEMICAL BANK 277 Park Avenue 277 Park Avenue
6th Floor 6th Floor
New York, NY 10172 New York, NY 10172
MORGAN GUARANTY TRUST COMPANY 60 Wall Street J.P. Morgan Services, Inc.
OF NEW YORK New York, NY 10260-0060 500 Stanton-Christiana Road
Attn: Loan Department Newark, DE 19713-2107
Attention: Loan Department
J.P. MORGAN DELAWARE J.P. Morgan Services, Inc. J.P. Morgan Services, Inc.
500 Stanton-Christiana Road 500 Stanton-Christiana Road
Newark, DE 19713-2107 Newark, DE 19713-2107
Attention: Loan Department Attention: Loan Department
THE BANK OF NEW YORK 10990 Wilshire Blvd. 10990 Wilshire Blvd.
Suite 1700 Suite 1700
Los Angeles, CA 90024 Los Angeles, CA 90024
1
Name of Bank Domestic Lending offices Eurodollar Lending Office
- ------------ ------------------------ -------------------------
BARCLAYS BANK PLC 388 Market Street 388 Market Street
Suite 1700 Suite 1700
San Francisco, CA 94111 San Francisco, CA 94111
cc: 75 Wall Street cc: 75 Wall Street
16th Floor 16th Floor
New York, NY 10265 New York, NY 10265
Attn: CLAD Attn: CLAD
THE FIRST NATIONAL BANK OF 1 First National Plaza 1 First National Plaza
CHICAGO Suite 0324, 1-10 Suite 0324, 1-10
Chicago, IL 60670 Chicago, IL 60670
MELLON BANK, N.A. Three Mellon Bank Center Three Mellon Bank Center
Room 2332 Room 2332
Pittsburgh, PA 15259 Pittsburgh, PA 15259
NATIONSBANK OF TEXAS, N.A. 901 Main Street 901 Main Street
67th Floor 67th Floor
Dallas, TX 75202 Dallas, TX 75202
NBD BANK, N.A. 611 Woodward Avenue 611 Woodward Avenue
National Banking Division National Banking Division
Detroit, MI 48226 Detroit, MI 48226
BANK BRUSSELS LAMBERT, 630 Fifth Avenue 630 Fifth Avenue
NEW YORK BRANCH New York, NY 10111 New York, NY 10111
THE BANK OF NOVA SCOTIA 101 California Street 101 California Street
48th Floor 48th Floor
San Francisco, CA 94111 San Francisco, CA 94111
2
Name of Bank Domestic Lending offices Eurodollar Lending Office
- ------------ ------------------------ -------------------------
CORESTATES BANK, N.A. P. O. Box 7618 P. O. Box 7618
Broad & Chestnut Streets Broad & Chestnut Streets
Philadelphia, PA 19101-7618 Philadelphia, PA 19101-7618
FIRST INTERSTATE BANK OF CALIFORNIA 707 Wilshire Blvd. 707 Wilshire Blvd.
Suite W16-13 Suite W16-13
Los Angeles, CA 90017 Los Angeles, CA 90017
NATIONAL WESTMINSTER BANK PLC 350 South Grand Avenue Nassau Branch
39th Floor 175 Water Street
Los Angeles, CA 90071 New York, NY 10038-4924
SOCIETE GENERALE 2029 Century Park East 2029 Century Park East
Suite 2900 Suite 2900
Los Angeles, CA 90067 Los Angeles, CA 90067
3
EXHIBIT A
NOTICE OF BORROWING
Citicorp USA, Inc., as Agent
for the Lenders party
to the Credit Agreement
referred to below
c/o Citicorp Securities, Inc.
One Court Square
Long Island City, New York 10020 [Date]
Attention: Michael Wright/Ian Kelly
Gentlemen:
Each of the undersigned, CSC Enterprises (the "Partnership") and
Computer Sciences Corporation (the "Corporation"), refers to the Credit
Agreement (Short Term Facility) dated as of September 15, 1994 (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 Agent for said Lenders. The
[Partnership] [Corporation] hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the [Partnership] [Corporation] hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ___________, 19__.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$______________.
(iv) If the Type of Advances comprising the Proposed Borrowing is
Eurodollar Rate Advances, the Interest Period for each Advance made as part
of the Proposed Borrowing is __ month[s].
A-1
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
Borrowing:
(A) the representations and warranties contained in Article IV of the
Credit Agreement are correct, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or a Potential Event of Default; and
(C) either (i) the amount of the Proposed Borrowing does not exceed
the aggregate amount of the unused Commitments (without giving effect to
any CP Reductions) and the proceeds of the Proposed Borrowing will be used
to repay Commercial Paper, or (ii) the amount of the Proposed Borrowing
does not exceed the aggregate amount of the unused Commitments of the
Lenders after giving effect to any CP Reductions.
A-2
The Corporation hereby further certifies that after giving effect to
the Proposed 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:
A-3
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Dated ________, 19__
Reference is made to the Credit Agreement (Short Term Facility) dated
as of September 15, 1994 (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 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 which represents the percentage interest
specified on Schedule 1 of all outstanding rights and obligations under the
Credit Agreement, including, without limitation, such interest in the Assignor's
Commitment and the Advances owing to the Assignor. After giving effect to such
sale and assignment, the Assignee's Commitment, the amount of the Advances owing
to the Assignee, and the Commitment Termination Date of the Assignee will be as
set forth in Section 2 of Schedule 1. 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
B-1
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
_________________________
If the Assignee is organized under the laws of a jurisdiction outside the
United States.
B-2
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.
B-3
Schedule 1
to
Assignment and Acceptance
Dated _____, 19__
Section 1.
---------
Percentage Interest: ______%
Section 2.
---------
Assignee's Commitment: $______
Aggregate Outstanding Principal
Amount of Advances owing to the Assignee: $______
Advances payable to the Assignee
Principal amount: _______
Advances payable to the Assignor
Principal amount: _______
Assignee's Commitment Termination Date: _________, 199_
Section 3.
---------
Effective Date**: ________, 199_
[NAME OF ASSIGNOR]
By:____________________________
Title:
[NAME OF ASSIGNEE]
By:____________________________
Title:
_____________________
** This date should be no earlier than the date of acceptance by the
Agent.
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ____ day
of _____________, 199_
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 GIBSON, DUNN & CRUTCHER]
[EFFECTIVE DATE]
Citicorp USA, Inc., as 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")
725 South Figueroa Street
Los Angeles, California 90017
Re: Credit Agreement (Short Term Facility) dated as
of September 15, 1994, among CSC Enterprises,
Computer Sciences Corporation, the Banks and
Citicorp USA, Inc., as 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
(Short Term Facility) dated as of September 15, 1994 (the "Credit Agreement")
among the Partnership, the Corporation, the Banks and Citicorp USA, Inc., as
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(i) 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
C-1-1
Citicorp USA, Inc.
September __, 1994
Page 2
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 Hayward D. Fisk,
Esq., Vice President and General Counsel of the Corporation, dated the Effective
Date to such effect.
C-1-2
Citicorp USA, Inc.
September __, 1994
Page 3
(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:
C-1-3
Citicorp USA, Inc.
September __, 1994
Page 4
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 G, 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
C-1-4
Citicorp USA, Inc.
September __, 1994
Page 5
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
C-1-5
Citicorp USA, Inc.
September ___, 1994
Page 6
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.
C-1-6
Citicorp USA, Inc.
September __, 1994
Page 7
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,
GIBSON, DUNN & CRUTCHER
C-1-7
SCHEDULE I
Citicorp USA, Inc.
Bank of America National Trust and Savings Association
Chemical Bank
Morgan Guaranty Trust Company of New York
J. P. Morgan Delaware
The Bank of New York
Barclays Bank PLC
The First National Bank of Chicago
Mellon Bank, N.A.
NationsBank of Texas, N.A.
NBD Bank, N.A.
Bank Brussels Lambert
The Bank of Nova Scotia
CoreStates Bank, N.A.
First Interstate Bank of California
National Westminster Bank PLC
Societe Generale
C-1-8
EXHIBIT C-2
[FORM OF OPINION OF GENERAL COUNSEL OF
COMPUTER SCIENCES CORPORATION]
[EFFECTIVE DATE]
Citicorp USA, Inc., as 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")
725 South Figueroa Street
Los Angeles, California 90017
RE: Credit Agreement (Short Term Facility) dated as of
September 15, 1994, among Computer Sciences
Corporation, CSC Enterprises, the Banks and
Citicorp USA, Inc., as 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 (Short Term Facility) dated as of September 15, 1994 (the
"Credit Agreement") among the Corporation, CSC Enterprises, a Delaware general
partnership (the "Partnership"), the Banks and Citicorp USA, Inc., as 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-2-1
Citicorp USA, Inc.
September __, 1994
Page 2
(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 qualifi cation, 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.
C-2-2
Citicorp USA, Inc.
September __, 1994
Page 3
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
C-2-3
Citicorp USA, Inc.
September __, 1994
Page 4
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,
Hayward D. Fisk
C-2-4
SCHEDULE I
Citicorp USA, Inc.
Bank of America National Trust and Savings Association
Chemical Bank
Morgan Guaranty Trust Company of New York
J. P. Morgan Delaware
The Bank of New York
Barclays Bank PLC
The First National Bank of Chicago
Mellon Bank, N.A.
NationsBank of Texas, N.A.
NBD Bank, N.A.
Bank Brussels Lambert
The Bank of Nova Scotia
CoreStates Bank, N.A.
First Interstate Bank of California
National Westminster Bank PLC
Societe Generale
C-2-5
EXHIBIT D
[FORM OF OPINION OF O'MELVENY & MYERS]
[EFFECTIVE DATE]
Citicorp USA, Inc., as Agent
725 South Figueroa Street
Los Angeles, California 90017
and
The Banks Party to the Credit Agreement
Referred to Below
Re: Credit Agreement (Short Term Facility) Dated as of
September 15, 1994 among Computer Sciences
Corporation, CSC Enterprises, the Banks named
therein and Citicorp USA, Inc., as Agent
--------------------------------------------------
Gentlemen:
We have participated in the preparation of the Credit Agreement (Short
Term Facility) dated as of September 15, 1994 (the "Credit Agreement";
capitalized terms defined therein and not otherwise defined herein are used
herein as therein defined) among Computer Sciences Corporation, a Nevada
corporation (the "Corporation"), CSC Enterprises, a Delaware general partnership
(the "Partnership"), the Banks named therein (the "Banks") and Citicorp USA,
Inc., as Agent (the "Agent") and have acted as special counsel for the Agent for
the purpose of rendering this opinion pursuant to Section 3.01(j) of the Credit
Agreement.
We have participated in various conferences and telephone conferences
with representatives of the Partnership, the Corporation and the Agent and
conferences and telephone calls with Gibson, Dunn & Crutcher, special counsel to
the Partnership and the Corporation, and Hayward D. Fisk, Esq., Vice President
and General Counsel of the Corporation, and with your representatives, during
which the Credit Agreement and related matters have been discussed, and we have
also participated in the meeting held on the date hereof (the "Closing")
incident to the effectiveness of the Credit Agreement. We have reviewed the
forms of the Credit Agreement and the exhibits thereto, and the opinions of
Gibson, Dunn & Crutcher and Hayward D. Fisk, Esq.,
D-1
Page 2 - Citicorp USA, Inc. and Banks - September __, 1994 Party to the Credit
Agreement
Vice President and General Counsel of the Corporation (the "Opinions") and
officers' certificates and other documents delivered at the Closing. We have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals or copies, the due authority of all persons
executing the same, and we have relied as to factual matters on the documents
which we have reviewed.
Although we have not independently considered all of the matters
covered by the Opinions to the extent necessary to enable us to express the
conclusions therein stated, we believe that the Credit Agreement and the
exhibits thereto are in substantially acceptable legal form, and that the
Opinions and the certificates and other documents delivered in connection with
the execution and delivery of, and as conditions to the effectiveness of, the
Credit Agreement are substantially responsive to the requirements of the Credit
Agreement.
Respectfully submitted,
D-2
EXHIBIT E
[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 Lender]
Pursuant to that certain Credit Agreement (Short Term Facility) dated
as of September 15, 1994 (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 Agent for said Lenders,
this represents the Partnership's and the Corporation's joint request to extend
the Commitment Termination Date of each Lender pursuant to Section 2.15 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;
(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
___________, 199_[1], and the related statements of income and retained
earnings of the
____________________
[1] Insert date of the most recent audited balance sheet of the Corporation
and its Subsidiaries.
E-1
Corporation and its Subsidiaries for the fiscal year then ended, and the
balance sheet of the Partnership and its Subsidiaries as at _________,
199_[1], 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 __________, 199_[1], and ___________, 199_[2],
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.
____________________
[2] Insert date of the most recent audited balance sheet of the Partnership
and its Subsidiaries.
E-2
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 [1 ].
Very truly yours,
CSC ENTERPRISES, a Delaware
general partnership
By CSC ENTERPRISES, INC.,
Its Managing Partner
By _____________________
Title:
COMPUTER SCIENCES CORPORATION
By:__________________________
Title:
The undersigned Lender
hereby consents to the extension
of its Commitment Termination
Date as requested above. This
consent is subject to the terms
of Section 2.15 of the Credit
Agreement.
DATED: ___________________
[LENDER]
By: ______________________
Title:____________________
____________________
[3 ] Insert tenth day prior to the Current Date (as defined in Section 2.15
of Credit Agreement).
E-3
EXHIBIT F
SCHEDULE OF OWNED REAL ESTATE (PARTNERSHIP)
Approx.
Address Description Acreage Mkt. Value
------- ----------- ------- ----------
(millions)
1. 100 Winnenden Road Office Building 51.00 $ 9.6
Norwich, CT & Data Center
2. 5021 Kearney Villa Road Office Building 9.5 19.0
San Diego, CA & Data Center ------
Total $ 28.6
F-1
EXHIBIT G
SCHEDULE OF OWNED REAL ESTATE (CORPORATION)
Approx.
Address Description Acreage Mkt. Value
------- ----------- ------- ----------
(millions)
1. 4515 Eagle Rock Blvd. Office Building 1.34 $ 2.4
Eagle Rock, CA
2. 2100 E. Grand Avenue Office Building & Data 5.90 29.0
El Segundo, CA Center
3. 3001 Centreville Road Office Building 16.52 6.6
Herndon, VA
4. 301 Harper Drive Office Building 4.21 4.0
Moorestown, NJ
5. 304 West Route 38 Office Building 5.55 5.7
Moorestown, NJ
6. 300 Fellowship Road Office Building 8.30 2.4
Mt. Laurel, NJ
7. 100 Winnenden Road Office Building & Data 51.00 9.6*
Norwich, CT Center
8. 5021 Kearney Villa Road Office Building & Data 9.5 19.0*
San Diego, CA Center
9. 3170 Fairview Park Drive Office Building 5.34 22.0
Falls Church, VA
10. 3180 Fairview Park Drive Vacant Lot 5.76 3.6
Falls Church, VA -------
Total $ 104.3
____________________
* Owned by the Partnership and also listed on Exhibit F.
G-1