EXHIBIT 10.28
U.S. $150,000,000
CREDIT AGREEMENT
(LONG 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
-- -----
and
CITICORP USA, INC.
as Agent
-- -----
TABLE OF CONTENTS
Page
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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................................ 14
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SECTION 1.03. Accounting Terms........................................... 14
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES...................... 15
SECTION 2.01. The A Advances............................................. 15
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SECTION 2.02. Making the A Advances...................................... 15
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SECTION 2.03. The B Advances............................................. 18
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SECTION 2.04. Facility Fees.............................................. 23
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SECTION 2.05. Termination and Reduction of the Commitments............... 24
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SECTION 2.06. Repayment and Prepayment of A Advances..................... 24
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SECTION 2.07. Interest on A Advances..................................... 26
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SECTION 2.08. Interest Rate Determination................................ 27
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SECTION 2.09. Voluntary Conversion or Continuation of A Advances......... 28
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SECTION 2.10. Increased Costs............................................ 28
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SECTION 2.11. Payments and Computations.................................. 29
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SECTION 2.12. Taxes...................................................... 31
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SECTION 2.13. Sharing of Payments, Etc................................... 33
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SECTION 2.14. Evidence of Debt........................................... 34
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SECTION 2.15. Use of Proceeds............................................ 34
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SECTION 2.16. Extension of the Commitment Termination Date............... 34
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SECTION 2.17. Substitution of Lenders.................................... 36
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ARTICLE III
CONDITIONS OF LENDING........................... 36
SECTION 3.01. Condition Precedent to Effective Date...................... 36
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SECTION 3.02. Conditions Precedent to Each A Borrowing................... 38
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SECTION 3.03. Conditions Precedent to Each B Borrowing................... 38
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES....................... 39
SECTION 4.01. Representations and Warranties of the Partnership............ 39
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SECTION 4.02. Representations and Warranties of the Corporation............ 42
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ARTICLE V
COVENANTS................................. 47
SECTION 5.01. Affirmative Covenants of the Partnership .................. 47
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SECTION 5.02. Negative Covenants of the Partnership...................... 51
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SECTION 5.03. Affirmative Covenants of the Corporation .................. 53
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SECTION 5.04. Negative Covenants of the Corporation ..................... 57
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ARTICLE VI
EVENTS OF DEFAULT............................. 60
SECTION 6.01. ............................................................ 60
ARTICLE VII
THE AGENT................................. 65
SECTION 7.01. Authorization and Action................................... 65
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SECTION 7.02. Agent's Reliance, Etc...................................... 65
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SECTION 7.03. CUSA and Affiliates........................................ 66
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SECTION 7.04. Lender Credit Decision..................................... 66
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SECTION 7.05. Indemnification............................................ 66
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SECTION 7.06. Successor Agent............................................ 67
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ARTICLE VIII
THE GUARANTY................................ 68
SECTION 8.01. Guaranty of the Guarantied Obligations..................... 68
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SECTION 8.02. Liability of the Guarantor................................. 68
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SECTION 8.03. Waivers by the Guarantor................................... 71
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SECTION 8.04. Payment by the Guarantor................................... 72
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SECTION 8.05. Subrogation................................................ 72
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SECTION 8.06. Subordination of Other Obligations......................... 73
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SECTION 8.07. Expenses .................................................. 73
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SECTION 8.08. Continuing Guaranty; Termination of Guaranty............... 74
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SECTION 8.09. Authority of the Guarantor or the Partnership.............. 74
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SECTION 8.10. Financial Condition of the Partnership..................... 74
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SECTION 8.11. Rights Cumulative.......................................... 74
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SECTION 8.12. Bankruptcy; Post-Petition Interest; Reinstatement of the
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Guaranty................................................... 74
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SECTION 8.13. Notice of Events........................................... 75
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SECTION 8.14. Set Off.................................................... 76
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SECTION 8.15. Determination of the Guarantied Obligations................ 76
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SECTION 8.16. Successors and Assigns..................................... 77
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SECTION 8.17. Further Assurances......................................... 77
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ARTICLE IX
MISCELLANEOUS............................... 78
SECTION 9.01. Amendments, Etc............................................ 78
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SECTION 9.02. Notices, Etc............................................... 78
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SECTION 9.03. No Waiver; Remedies........................................ 79
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SECTION 9.04. Costs, Expenses and Indemnification........................ 79
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SECTION 9.05. Right of Set-off........................................... 80
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SECTION 9.06. Binding Effect............................................. 81
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SECTION 9.07. Assignments and Participations............................. 81
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SECTION 9.08. Governing Law.............................................. 84
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SECTION 9.09. Execution in Counterparts.................................. 84
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SECTION 9.10. Consent to Jurisdiction; Waiver of Immunities.............. 84
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SECTION 9.11. Waiver of Trial by Jury.................................... 85
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SECTION 9.12. Limited Liability of Certain Partners of the Partnership... 85
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SECTION 9.13. Survival of Warranties..................................... 86
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SECTION 9.14. Severability............................................... 86
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SECTION 9.15. Headings................................................... 86
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Schedule I - List of Applicable Lending Offices
Exhibit A-1 - Notice of A Borrowing
Exhibit A-2 - Notice of B 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
(LONG 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):
"A Advance" means an advance by a Lender to a Borrower as part of an A
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Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of A Advance.
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"A Borrowing" means a borrowing consisting of A Advances of the same
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Type made on the same day to the same Borrower pursuant to the same Notice
of A Borrowing by each of the Lenders pursuant to Section 2.01.
"Adjusted Eurodollar Rate" means, for any Interest Period for each
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Eurodollar Rate Advance comprising part of the same A Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) the average (rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the rate per annum at
which deposits in U.S. dollars are offered by the principal office of each
of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to the
respective Reference Bank's Eurodollar Rate Advance comprising part of such
A Borrowing and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage. The Adjusted Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
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Section 2.08.
"Advance" means an A Advance or a B Advance.
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"Affiliate" means, as to any Person, any other Person that, directly
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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 (Long Term Facility), as this
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Credit Agreement (Long 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 and, in the case of a B Advance, the office of such Lender notified
by such Lender to the Agent as its Applicable Lending Office with respect
to such B Advance.
"Applicable Margin" means, for any period for which any interest
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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.
"B Advance" means an advance by a Lender to a Borrower as part of a B
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Borrowing resulting from the auction bidding procedure described in Section
2.03.
"B Borrowing" means a borrowing consisting of B Advances made on the
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same day to the same Borrower pursuant to the same Notice of B Borrowing by
each of the Lenders
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whose offer to make one or more B Advances as part of such borrowing has
been accepted by a Borrower under the auction bidding procedure described
in Section 2.03.
"B Reduction" has the meaning specified in Section 2.01.
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"Base Rate" means, for any period, a fluctuating interest rate per
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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 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.
3
"Base Rate Advance" means an A Advance which bears interest as
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provided in Section 2.07(a).
"Borrower" means (i) the Partnership, or (ii) the Corporation, in the
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Corporation's capacity as a borrower hereunder, and "Borrowers" means both
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of them, together.
"Borrowing" means an A Borrowing or a B Borrowing.
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"Business Day" means a day of the year on which banks are not required
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or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Capital Expenditures" means, for any period, the expenditures
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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.
"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
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or 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 15, 1998, or such later date to which the Commitment Termination
Date of such Lender may be extended from time to time pursuant to Section
2.16 (or if any such date is not a Business Day, the next preceding
Business Day).
"Consolidated Gross Cash Flow" means, for any period, (i) the sum of
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(A) net income, plus (B) taxes on income, plus (C) net interest expense,
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plus (D) depreciation
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expense, plus (E) amortization expense of goodwill, financing costs and
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other intangibles, plus (F) extraordinary losses, plus (G) other non-cash
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charges to the extent deducted from net income, minus (ii) the sum of (A)
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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.
"Convert," "Conversion" and "Converted" each refers to a conversion of
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A Advances of one Type into A Advances of another Type pursuant to Section
2.09.
"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:
5
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 0.125% 0.225%
Level 2 0.150% 0.300%
Level 3 0.225% 0.375%
Level 4 0.275% 0.425%
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 and without
giving effect to any B Reduction), (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
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
6
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, 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
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(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 "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrowers and the Agent.
"Eurodollar Rate Advance" means an A Advance which bears interest as
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provided in Section 2.07(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
8
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 Long Term Facility Credit Agreement" means the Credit
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Agreement (Long Term Facility) dated as of November 2, 1993, among the
Partnership, the lenders party thereto and CUSA, as agent for such lenders.
"Existing Long Term Facility Guaranty Agreement" means the Guaranty
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Agreement (Long 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.
"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 A Borrowing, the period commencing on the date of such
Eurodollar Rate Advance, or on the date of continuation of such Advance as
a Eurodollar Rate Advance upon expiration of successive Interest Periods
applicable thereto, or on the date of Conversion of a Base Rate Advance
into a Eurodollar Rate Advance, and ending on the last day of the period
selected by the applicable Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the applicable Borrower may select in the Notice of Borrowing or
the Notice of Conversion/Continuation for such Advance; provided, however,
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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 A Advances
comprising part of the same A Borrowing shall be of the same duration;
and
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, that if such extension would cause the last
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day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day.
"Lenders" means the Banks listed on the signature pages hereof and
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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
10
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.
"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 A 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 A Advances or
having such amount of the Commitments or (ii) determining the aggregate
unpaid principal amount of the A Advances or the total Commitments).
"Managing Partner" means CSC Enterprises, Inc., a Nevada corporation
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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
11
Affiliate and at least one Person other than such Borrower and its ERISA
Affiliates or (ii) was so maintained and in respect of which either
Borrower or an ERISA Affiliate could have liability under Section 4063,
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Non-Hostile Acquisition" means an acquisition (whether by purchase of
-----------------------
capital stock or assets, merger or otherwise) which has been approved by
resolutions of the Board of Directors of the Person being acquired or by
similar action if the Person is not a corporation and as to which such
approval has not been withdrawn.
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
---------------------
"Notice of a B Borrowing" has the meaning specified in Section
-----------------------
2.03(a).
"Notice of Borrowing" means the Notice of A Borrowing or the Notice of
-------------------
B Borrowing or both, as the context may require.
"Notice of Conversion/Continuation" has the meaning specified in
---------------------------------
Section 2.09.
"Partnership" means CSC Enterprises, a Delaware general partnership,
-----------
in its capacity as a Borrower hereunder.
"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
12
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.
---
"SEC" means the Securities and Exchange Commission and any successor
---
agency.
"Short Term Facility Agent" means CUSA, or any Person serving as
-------------------------
successor agent under the Short Term Facility Credit Agreement, in its
capacity as agent for the Short Term Facility Lenders under the Short Term
Facility Credit Agreement.
"Short Term Facility Credit Agreement" means the Credit Agreement
------------------------------------
(Short Term Facility) of even date herewith among the Corporation, the
Partnership, the Short Term Facility Lenders and the Short Term Facility
Agent, as it may be amended, supplemented or otherwise modified from time
to time.
"Short Term Facility Lenders" means the lenders listed on the
---------------------------
signature pages of the Short Term Facility Credit Agreement and each
Eligible Assignee (as such term is defined in the Short Term Facility
Credit Agreement) that has become a party to the Short Term Facility Credit
Agreement pursuant to Section 9.07 thereof.
"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
13
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
2.05 or 6.01.
"Type" means, with reference to an A Advance, a Base Rate Advance or a
----
Eurodollar Rate Advance.
"Withdrawal Liability" has the meaning given such term under Part I of
--------------------
Subtitle E of Title IV of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
----------------
specifically defined herein shall be construed in accordance with GAAP
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(e) or Section 4.02(e), as the case may be. All
computations determining compliance with financial covenants or terms, including
definitions used therein, shall be prepared in accordance with generally
accepted accounting principles in effect at the time of the preparation of, and
in conformity with those used to prepare, the historical financial statements
delivered to the Lenders pursuant to Section 4.01(e) or Section 4.02(e), as the
case may be. If at any time the computations for determining compliance with
financial covenants or provisions relating thereto utilize generally accepted
accounting principles different than those then being utilized in the financial
statements being delivered to the Lenders, such financial statements shall be
accompanied by a reconciliation statement.
14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE A ADVANCES. Each Lender severally agrees, on the
--------------
terms and conditions hereinafter set forth, to make A Advances to either
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date of such Lender in an aggregate amount
(together with the aggregate amount of A Advances made to the other Borrower
that is outstanding at such time) not to exceed at any time outstanding the
amount set opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Agent pursuant to Section 9.07(c), as such
amount may be reduced pursuant to Section 2.05 (such Lender's "Commitment"),
provided that (a) the aggregate amount of the Commitments of the Lenders shall
- --------
be deemed used from time to time to the extent of the aggregate amount of the B
Advances then outstanding and at any time of determination, such deemed use of
the aggregate amount of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments in effect at such time of
determination (such deemed use of the aggregate amount of the Commitments being
a "B Reduction") and (b) the aggregate amount of the Commitments of the Lenders
shall be deemed used from time to time to the extent of the excess of (i) the
aggregate principal amount of Commercial Paper outstanding over (ii) the
aggregate amount of the commitments of the Short Term Facility Lenders under the
Short Term Facility Credit Agreement less the aggregate principal amount of
advances outstanding thereunder (without giving effect to any "CP Reduction"
thereunder) (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 under this clause (b) (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 A 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 A Advances of the same Type
made on the same day to the same Borrower by the Lenders ratably according to
their respective Commitments. Within the limits of each Lender's Commitment,
each Borrower may from time to time borrow, prepay pursuant to Section 2.06(d)
and reborrow under this Section 2.01.
SECTION 2.02. MAKING THE A ADVANCES. (a) Each A Borrowing shall be
---------------------
made on notice, given not later than (x) 10:00 A.M. (New York City time) on the
date of a proposed A Borrowing
15
consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the
third Business Day prior to the date of a proposed A Borrowing consisting of
Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to
the Agent, which shall give to each Lender prompt notice thereof by telecopier,
telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing")
shall be by telecopier, telex or cable, confirmed immediately in writing, in
substantially the form of Exhibit A-1 hereto, specifying therein the requested
(i) date of such A Borrowing, (ii) Type of A Advances comprising such A
Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of
an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest
Period for each such A Advance. A Borrower may, subject to the conditions herein
provided, borrow more than one A Borrowing on any Business Day. Each Lender
shall, before 1:00 P.M. (New York City time) in the case of a Borrowing
consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in
the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on
the date of such A Borrowing, make available for the account of its Applicable
Lending Office to the Agent at its address referred to in Section 9.02, in same
day funds, such Lender's ratable portion of such A Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A
Borrowing or with respect to the Conversion or continuance of any A
Borrowing if the aggregate amount of such A Borrowing or such Conversion or
continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to
Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date
of any requested A Borrowing, notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or that any central bank or other governmental authority asserts
that it is unlawful, for such Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate Advances or to
fund or
16
maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender
to make Eurodollar Rate Advances or to Convert all or any portion of Base
Rate Advances shall forthwith be suspended until the Agent shall notify the
Borrowers that such Lender has determined that the circumstances causing
such suspension no longer exist and such Lender's then outstanding
Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the
extent that such affected Eurodollar Rate Advances become Base Rate
Advances, all payments of principal that would have been otherwise applied
to such Eurodollar Rate Advances shall be applied instead to such Lender's
Base Rate Advances; provided that if Majority Lenders are subject to the
--------
same illegality or assertion of illegality, then the right of a Borrower to
select Eurodollar Rate Advances for such A Borrowing or any subsequent A
Borrowing or to Convert all or any portion of Base Rate Advances shall
forthwith be suspended until the Agent shall notify the Borrowers that the
circumstances causing such suspension no longer exist, and each A Advance
comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to
the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar
Rate Advances comprising any requested A Borrowing, the right of a Borrower
to select Eurodollar Rate Advances for such A Borrowing or any subsequent A
Borrowing shall be suspended until the Agent shall notify the Borrowers and
the Lenders that the circumstances causing such suspension no longer exist,
and each A Advance comprising such A Borrowing shall be made as a Base Rate
Advance; and
(v) if the Majority Lenders shall, at least one Business Day before
the date of any requested A Borrowing, notify the Agent that the Adjusted
Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing
will not adequately reflect the cost to such Majority Lenders of making,
funding or maintaining their respective Eurodollar Rate Advances for such A
Borrowing, the right of a Borrower to select Eurodollar Rate Advances for
such A Borrowing or any subsequent A Borrowing shall be suspended until the
Agent shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist, and each A Advance comprising such
A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on
the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing
which the related Notice of A
17
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
requesting the proposed A Borrowing shall indemnify each Lender against any
loss, cost or expense incurred by such Lender by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the A
Advance to be made by such Lender as part of such A Borrowing or by reason of
the termination of hedging or other similar arrangements, in each case when such
A Advance is not made on such date, including without limitation, as a result of
any failure to fulfill on or before the date specified in such Notice of A
Borrowing for such A Borrowing the applicable conditions set forth in Article
III.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any A Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such A Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such A Borrowing in accordance with subsection (a) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the Borrower
requesting the proposed A Borrowing on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such ratable portion
available to the Agent, such Lender and such Borrower severally agree to repay
to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
such Borrower until the date such amount is repaid to the Agent, at (i) in the
case of such Borrower, the interest rate applicable at the time to A Advances
comprising such A Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lender's A Advance as part of such A
Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. THE B ADVANCES. (a) Each Lender severally agrees that
--------------
either Borrower may make B Borrowings under this Section 2.03 from time to time
on any Business Day during the period from the date hereof until the date
occurring 30 days prior to the latest Commitment Termination Date of any Lender
then in effect in the manner set forth below; provided that,
--------
18
(i) following the making of each B Borrowing, (1) the aggregate amount of the
Advances then outstanding to both Borrowers shall not exceed the aggregate
amount of the Commitments of the Lenders then in effect (computed without regard
to any B Reduction), and (2) the aggregate amount of the B Advances scheduled to
be outstanding to both Borrowers at any time through the maturity of such B
Advances shall not exceed the aggregate amount of the Commitments of the Lenders
scheduled to be in effect at such time (computed without regard to any B
Reduction), and (ii) no Lender may make a B Advance if the maturity date of such
B Advance occurs after the Commitment Termination Date of such Lender.
(i) Either Borrower may request a B Borrowing under this Section 2.03
by delivering to the Agent, by telecopier, telex or cable, confirmed
immediately in writing, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit A-2 hereto, specifying
the date and aggregate amount of the proposed B Borrowing, the maturity
date for repayment of each B Advance to be made as part of such B Borrowing
(which maturity date (x) in the case of a fixed rate B Borrowing may not be
earlier than the date occurring 14 days after the date of such B Borrowing
or later than the date occurring 180 days after the date of such B
Borrowing, and (y) in the case of any other B Borrowing may not be earlier
than the date occurring 30 days after the date of such B Borrowing or later
than the date occurring 180 days after the date of such B Borrowing), the
interest payment date or dates relating thereto, and any other terms to be
applicable to such B Borrowing, not later than 11:00 A.M. (New York City
time) (A) at least one Business Day prior to the date of the proposed B
Borrowing, if such Borrower shall specify in the Notice of B Borrowing that
the rates of interest to be offered by the Lenders shall be fixed rates per
annum and (B) at least four Business Days prior to the date of the proposed
B Borrowing, if such Borrower shall instead specify in the Notice of B
Borrowing the basis to be used by the Lenders in determining the rates of
interest to be offered by them. A Borrower may not select a maturity date
for any B Borrowing which ends after the latest Commitment Termination Date
of any Lender then in effect. The Agent shall in turn promptly notify each
Lender of each request for a B Borrowing received by it from a Borrower by
sending such Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more B Advances to such Borrower as part
of such proposed B Borrowing at a rate or rates of interest specified by
such
19
Lender in its sole discretion, by notifying the Agent (which shall give
prompt notice thereof to such Borrower), before 11:00 A.M. (New York City
time) (A) on the date of such proposed B Borrowing, in the case of a Notice
of B Borrowing delivered pursuant to clause (A) of paragraph (i) above and
(B) three Business Days before the date of such proposed B Borrowing, in
the case of a Notice of B Borrowing delivered pursuant to clause (B) of
paragraph (i) above, of the minimum amount and maximum amount of each B
Advance which such Lender would be willing to make as part of such proposed
B Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's Commitment), the
rate or rates of interest therefor and such Lender's Applicable Lending
Office with respect to such B Advance; provided that if the Agent in its
--------
capacity as a Lender shall, in its sole discretion, elect to make any such
offer, it shall notify such Borrower of such offer before 10:00 A.M. (New
York City time) on the date on which notice of such election is to be given
to the Agent by the other Lenders. If any Lender shall elect not to make
such an offer, such Lender shall so notify the Agent, before 10:00 A.M.
(New York City time) on the date on which notice of such election is to be
given to the Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any B Advance as part of such B
Borrowing; provided that the failure by any Lender to give such notice
--------
shall not cause such Lender to be obligated to make any B Advance as part
of such proposed B Borrowing.
(iii) Such Borrower shall, in turn, (A) before 12:00 noon (New York
City time) on the date of such proposed B Borrowing, in the case of a
Notice of B Borrowing delivered pursuant to clause (A) of paragraph (i)
above and (B) before 1:00 P.M. (New York City time) three Business Days
before the date of such proposed B Borrowing, in the case of a Notice of B
Borrowing delivered pursuant to clause (B) of paragraph (i) above, either
(x) cancel such B Borrowing by giving the Agent notice to that
effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above (which acceptance shall be
irrevocable) in its sole discretion, by giving notice to the Agent of
the amount of each B Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the maximum
amount, notified to such Borrower by the Agent on behalf of such
Lender for such B Advance
20
pursuant to paragraph (ii) above) to be made by each Lender as part of
such B Borrowing (provided that the aggregate amount of such B
Borrowing shall not exceed the amount specified on the Notice of B
Borrowing delivered by such Borrower pursuant to paragraph (i) above),
and reject any remaining offers made by Lenders pursuant to paragraph
(ii) above by giving the Agent notice to that effect; provided that
--------
acceptance of offers may only be made on the basis of ascending rates
for B Borrowings of the same type and duration for up to the maximum
amounts offered by Lenders; and provided further that if offers are
-------- -------
made by two or more Lenders for the same type of B Borrowing for the
same duration and with the same rate of interest, in an aggregate
amount which is greater than the amount requested, such offers shall
be accepted on a pro rata basis based on the maximum amounts offered
by such Lenders at such rate of interest.
(iv) If such Borrower notifies the Agent that such B Borrowing is
cancelled pursuant to paragraph (iii)(x) above or if such Borrower rejects
any offers made by Lenders pursuant to paragraph (iii)(y) above, the Agent
shall give prompt notice thereof to the Lenders or affected Lenders, as the
case may be, and in the case of a cancellation, such B Borrowing shall not
be made.
(v) If such Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall in
turn promptly notify (A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such B Borrowing
and whether or not any offer or offers made by such Lender pursuant to
paragraph (ii) above have been accepted by such Borrower, (B) each Lender
that is to make a B Advance as part of such B Borrowing, of the amount of
each B Advance to be made by such Lender as part of such B Borrowing, and
(C) each Lender that is to make a B Advance as part of such B Borrowing,
upon receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a B Advance as part of such B Borrowing shall, before 1:00
P.M. (New York City time) on the date of such B Borrowing specified in the
notice received from the Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice from
the Agent pursuant to clause (C) of the preceding sentence, make available
for the account of its Applicable Lending Office to the Agent at its
address referred to in Section 9.02 such
21
Lender's portion of such B Borrowing, in same day funds. Upon fulfillment
of the applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will make such funds available to such
Borrower at the Agent's aforesaid address. Promptly after each B Borrowing,
the Agent will notify each Lender of the amount of the B Borrowing, the
consequent B Reduction and the dates upon which such B Reduction commenced
and will terminate.
(vi) Each Borrower agrees to pay to the Agent for the Agent's account
an auction fee of $2,500 for each Notice of B Borrowing delivered by such
Borrower to the Agent pursuant to this Section 2.03(a), whether or not a B
Borrowing is made pursuant thereto.
(b) Each B Borrowing shall be in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each B Borrowing, the Borrowers and each Lender shall be
in compliance with the limitations set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, either Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, and more than one B Borrowing may be made on a Business Day;
provided that, except for B Borrowings made on the same Business Day, a B
- --------
Borrowing shall not be made within three Business Days of the date of any other
B Borrowing.
(d) Each Borrower shall repay to the Agent for the account of each
Lender which has made a B Advance to such Borrower, on the maturity date of each
B Advance made to such Borrower (such maturity date being that specified by such
Borrower for repayment of such B Advance in the related Notice of B Borrowing
delivered pursuant to subsection (a)(i) above), the then unpaid principal amount
of such B Advance. Neither Borrower shall have any right to prepay any
principal amount of any B Advance unless, and then only on the terms, specified
by such Borrower for such B Advance in the related Notice of B Borrowing
delivered pursuant to subsection (a)(i) above.
(e) Each Borrower shall pay interest on the unpaid principal amount
of each B Advance made to such Borrower from the date of such B Advance to the
date the principal amount of such B Advance is repaid in full, at the rate of
interest for such B Advance specified by the Lender making such B Advance in its
notice with respect thereto delivered pursuant to subsection
22
(a)(ii) above, payable on the interest payment date or dates specified by such
Borrower for such B Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above; provided that any principal amount of any B
--------
Advance which is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall bear interest from the date on which such amount is due
until such amount is paid in full, payable on demand, at a rate per annum equal
at all times to (A) until the stated maturity date of such B Advance, the
greater of (x) 2% per annum above the Base Rate in effect from time to time and
(y) 2% above the stated rate per annum of such B Advance, and (B) after the
stated maturity of such B Advance, 2% per annum above the Base Rate in effect
from time to time.
(f) Subject to the obligations of the Guarantor under the Guaranty,
neither Borrower shall have any obligation to repay to any Lender any B Advance
made by such Lender to the other Borrower or to pay any interest on any B
Advance made by such Lender to the other Borrower.
SECTION 2.04. 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 or B
Reduction, from the date hereof in the case of each Bank and from the effective
date specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date of such
Lender, payable in arrears on the last day of each March, June, September and
December during the term of such Lender's Commitment, commencing September 30,
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 B Reduction or CP Reduction) in
effect during the period for which such payment that is to be made times (ii)
the weighted average rate per annum that is derived from the following rates:
(a) a rate of 0.100% 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 0.125% per annum with respect to each day
during such period that the higher of such ratings was Level 2, (c) a rate of
0.150% per annum with respect to each day during such period that the higher of
such ratings was Level 3, and (d) a rate of 0.200% 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
23
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.
SECTION 2.05. TERMINATION AND REDUCTION OF THE COMMITMENTS.
--------------------------------------------
(a) Mandatory Termination. In the event that a mandatory prepayment
---------------------
in full of the A Advances is required by Section 2.06(b), the Commitments of the
Lenders shall immediately terminate.
(b) Optional Reductions. The Borrowers shall have the right, upon at
-------------------
least four Business Days' notice to the Agent by both Borrowers, to terminate in
whole or reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that the aggregate amount of the
--------
Commitments of the Lenders shall not be reduced to an amount which is less than
the sum of (i) the aggregate principal amount of the Advances then outstanding
and (ii) the excess of the aggregate principal amount of Commercial Paper then
outstanding over the aggregate amount of unused Commitments available under the
Short Term Facility Credit Agreement without giving effect to any "CP Reduction"
thereunder, and provided, further, that each partial reduction shall be in the
-------- -------
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
SECTION 2.06. REPAYMENT AND PREPAYMENT OF A ADVANCES.
--------------------------------------
(a) Mandatory Repayment on Termination Date. Each Borrower shall
---------------------------------------
repay the outstanding principal amount of each A Advance made by each Lender to
such Borrower on the Termination Date of such Lender.
(b) Mandatory Prepayment in Certain Events. If any one of the
--------------------------------------
following events shall occur:
(i) Representatives of CSC Partners shall cease to constitute a
majority of the Partnership's Partnership
24
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 substantially the same ability to
control the operations or policies of the Partnership as it has on the date
hereof; or
(iii) The Partnership shall transfer a majority of its assets to
any Person other than the Corporation or one or more Subsidiaries of the
Corporation of which the Corporation owns at least 80% of the voting stock;
or
(iv) The Corporation shall cease to directly or indirectly
(through its Subsidiaries of which it owns at least 80% of the voting
stock) own more than 50% of the outstanding partnership interest of the
Partnership;
then, and in any such event, the Partnership shall immediately prepay in full
the A Advances made to the Partnership, and shall immediately make an offer to
all Lenders which have made B Advances to the Partnership to prepay such B
Advances, and shall immediately prepay in full the B Advances of all Lenders
accepting such offer, and in the case of all Advances so prepaid the Partnership
will pay interest accrued to the date of prepayment and will reimburse the
Lenders in respect thereof pursuant to Section 9.04(b).
(c) Mandatory Prepayment Due to Reductions of Commitments. Each
-----------------------------------------------------
Borrower shall from time to time prepay the A Advances made to such Borrower or
repay Commercial Paper issued by such Borrower, in each case to the extent
necessary so that the sum of the aggregate principal amount of the Advances and
the aggregate principal amount of Commercial Paper then outstanding does not
exceed the aggregate amount of the Commitments of the
25
Lenders then in effect (computed without regard to any CP Reduction or B
Reduction).
(d) Voluntary Prepayments of A Borrowings. Neither Borrower shall
-------------------------------------
have any right to prepay any principal amount of any A Advances other than as
provided in this subsection (d). Each Borrower may, upon at least one Business
Day's notice to the Agent in the case of Base Rate Advances and at least three
Business Days' notice to the Agent in the case of Eurodollar Rate Advances
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given such Borrower shall, prepay the outstanding principal
amounts of the Advances made to such Borrower comprising part of the same A
Borrowing in whole or ratably in part; provided, however, that (x) each partial
-------- -------
prepayment shall be in an aggregate principal amount not less than $5,000,000
and integral multiples of $1,000,000 in excess thereof and (y) in the case of
any such prepayment of any Eurodollar Rate Advance, such Borrower shall pay all
accrued interest to the date of such prepayment on the portion of such
Eurodollar Rate Advance being prepaid and shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(b).
(e) Certain Obligations Several. Subject to the obligations of the
---------------------------
Guarantor under the Guaranty, neither Borrower shall have any obligation to
repay to any Lender any A Advance made by such Lender to the other Borrower or
to pay any interest on any A Advance made by such Lender to the other Borrower.
SECTION 2.07. INTEREST ON A ADVANCES. Each Borrower shall pay
----------------------
interest accrued on the principal amount of each A Advance that was made to such
Borrower outstanding from time to time from the date of such A Advance until
such principal amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such A Advance is a Base Rate Advance, a
------------------
rate per annum equal at all times to the Base Rate in effect from time to time,
payable in arrears on the last day of each March, June, September and December
during the term of this Agreement, commencing September 30, 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
(including, without limitation, the principal amount of Base Rate Advances, but
excluding the principal amount of Eurodollar Rate Advances and B Advances) which
is not paid when due (whether at stated maturity, by acceleration or otherwise)
shall bear interest from the date on which such amount is due until such amount
is paid in full,
26
payable on demand, at a rate per annum equal at all times to 2% per annum above
the Base Rate in effect from time to time.
(b) Eurodollar Rate Advances. If such A Advance is a Eurodollar Rate
------------------------
Advance, a rate per annum equal at all times during the Interest Period for such
A Advance to the sum of the Adjusted Eurodollar Rate for such Interest Period
plus the Applicable Margin, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three months, on
the day which occurs during such Interest Period three months from the first day
of such Interest Period; provided that any principal amount of any Eurodollar
--------
Rate Advance which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to (A) during the Interest Period applicable to
such Eurodollar Rate Advance, the greater of (x) 2% per annum above the Base
Rate in effect from time to time and (y) 2% per annum above the rate per annum
required to be paid on such amount immediately prior to the date on which such
amount became due and (B) after the expiration of such Interest Period, 2% per
annum above the Base Rate in effect from time to time.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Each Reference Bank
---------------------------
agrees to furnish to the Agent timely information for the purpose of determining
each Adjusted Eurodollar Rate. If any one or more of the Reference Banks shall
not furnish such timely information to the Agent for the purpose of determining
any such interest rate, the Agent shall determine such interest rate on the
basis of timely information furnished by the remaining Reference Banks, subject
to Section 2.02(b)(iv).
(b) The Agent shall give prompt notice to the Borrowers and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a) or 2.07(b), and the applicable rate, if any, furnished by each
Reference Bank for the purpose of determining the applicable interest rate under
Section 2.07(b).
27
SECTION 2.09. VOLUNTARY CONVERSION OR CONTINUATION OF A ADVANCES.
--------------------------------------------------
(a) Each Borrower may on any Business Day, upon notice given to the
Agent not later than 12:00 noon (New York City time) on the third Business Day
prior to the date of the proposed Conversion or continuance (a "Notice of
Conversion/Continuation") and subject to the provisions of Section 2.02(b), (1)
Convert all Advances of one Type comprising the same A Borrowing made to such
Borrower into A Advances of another Type and (2) upon the expiration of any
Interest Period applicable to A Advances which are Eurodollar Rate Advances made
to such Borrower, continue all (or, subject to Section 2.02(b), any portion of)
such A Advances as Eurodollar Rate Advances and the succeeding Interest
Period(s) of such continued A Advances shall commence on the last day of the
Interest Period of the A Advances to be continued; provided, however, that any
-------- -------
Conversion of any Eurodollar Rate Advances into A Advances of another Type shall
be made on, and only on, the last day of an Interest Period for such Eurodollar
Rate Advances. Each such Notice of Conversion/Continuation shall, within the
restrictions specified above, specify (i) the date of such continuation or
Conversion, (ii) the A Advances (or, subject to Section 2.02(b), any portion
thereof) to be continued or Converted, (iii) if such continuation is of, or such
Conversion is into, Eurodollar Rate Advances, the duration of the Interest
Period for each such A Advance and (iv) that no Potential Event of Default or
Event of Default has occurred and is continuing.
(b) If upon the expiration of the then existing Interest Period
applicable to any A Advance which is a Eurodollar Rate Advance made to either
Borrower, such Borrower shall not have delivered a Notice of
Conversion/Continuation in accordance with this Section 2.09, then such Advance
shall upon such expiration automatically be Converted to a Base Rate Advance.
(c) After the occurrence of and during the continuance of a Potential
Event of Default or an Event of Default, a Borrower may not elect to have an A
Advance be made or continued as, or Converted into, a Eurodollar Rate Advance
after the expiration of any Interest Rate then in effect for that A Advance.
SECTION 2.10. INCREASED COSTS. (a) If, due to either (i) the
---------------
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements in the case of Eurodollar Rate Advances
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority (whether or
28
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 2.10
and 2.12 than the amount such Lender would have been entitled to receive if it
had not changed its Applicable Lending Office, unless such change was made at
the request of a Borrower or at a time when the circumstances giving rise to
such greater payment did not exist.
SECTION 2.11. PAYMENTS AND COMPUTATIONS. (a) Each Borrower shall
-------------------------
make each payment hereunder not later than 1:00 P.M. (New York City time) on the
day when due in U.S. dollars to the Agent at its address referred to in Section
9.02 in same day funds. Subject to the immediately succeeding sentence, the
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.03,
29
2.10 or 2.12 or, to the extent the Termination Date is not the same for all
Lenders, pursuant to Section 2.06(a)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon receipt of principal or interest paid after an
Event of Default and an acceleration or a deemed acceleration of amounts due
hereunder, the Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest ratably in accordance with each
Lender's outstanding A Advances and B Advances (other than amounts payable
pursuant to Section 2.10 or 2.12) to the Lenders for the account of their
respective Applicable Lending Offices. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 9.07(d), from and after the effective date specified in such
Assignment and Acceptance, the Agent shall make all payments hereunder in
respect of the interest assigned thereby to the Lender assignee thereunder, and
the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest based on the Base Rate shall be made
by the Agent on the basis of a year of 365 or 366 days, as the case may be, and
all computations of interest based on the Adjusted Eurodollar Rate or the
Federal Funds Rate and of facility fees shall be made by the Agent on the basis
of a year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or such fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or facility fee, as the case may be;
provided, however, if such extension would cause payment of interest on or
- -------- -------
principal of Eurodollar Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
(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
30
in full, the Agent may assume that such Borrower has made such payment in full
to the Agent on such date and the Agent may, in reliance upon such assumption,
cause to be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent that such Borrower shall not
have so made such payment in full to the Agent, each Lender shall repay to the
Agent forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.
SECTION 2.12. TAXES. (a) Any and all payments by a Borrower
-----
hereunder shall be made, in accordance with Section 2.11, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, (i) taxes imposed on its
- ---------
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Lender or the Agent (as the case may be) is organized or any
political subdivision thereof or in which its principal office is located, (ii)
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof, (iii) taxes imposed upon or measured by the overall net
income of such Lender by the United States of America or any political
subdivision or taxing authority thereof or therein, and (iv) United States
income taxes (including withholding taxes with respect to payments hereunder)
payable with respect to payments hereunder under laws (including without
limitation any statute, treaty, ruling, determination or regulation) in effect
on the date hereof in the case of each Bank and on the effective date of the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If a Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder to any Lender or the Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
31
(b) In addition, the Borrowers jointly and severally agree to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from the execution, delivery or
registration of, or otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (to the extent specifically attributable to
Borrowings made by such Borrower) (including, without limitation, any Taxes or
Other Taxes (to the extent specifically attributable to Borrowings made by such
Borrower) imposed by any jurisdiction on amounts payable under this Section
2.12) and the Borrowers jointly and severally will indemnify each Lender and the
Agent for the full amount of Taxes or Other Taxes (to the extent not
specifically attributable to Borrowings made by a particular Borrower)
(including, without limitation, any Taxes or Other Taxes (to the extent not
specifically attributable to Borrowings made by a particular Borrower) imposed
by any jurisdiction on amounts payable under this Section 2.12), in each case
paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrowers, or either of them, will furnish to the Agent, at its address referred
to in Section 9.02, the original or a certified copy of a receipt evidencing
payment thereof.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by either
Borrower (but only so long as such Lender remains lawfully able to do so), shall
provide such Borrower with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the rate of withholding tax
on payments of interest or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a trade or business
in the United States. If the form provided by a Lender at the
32
time such Lender first becomes a party to this Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from "Taxes" as defined in Section 2.12(a).
(f) For any period with respect to which a Lender has failed to
provide a Borrower with the appropriate form described in Section 2.12(e) (other
than if such failure is due to a change in law occurring subsequent to the date
on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.12(a) with
respect to Taxes imposed by the United States; provided, however, that should a
-------- -------
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, such Borrower shall, at the expense of such Lender, take such steps
as the Lender shall reasonably request to assist the Lender to recover such
Taxes.
(g) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.12 shall survive the payment in full of principal and interest
hereunder.
SECTION 2.13. SHARING OF PAYMENTS, ETC. If any Lender shall obtain
------------------------
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.10 or 2.12 or, to the extent the Termination Date is not
the same for all Lenders, pursuant to Section 2.06(a)) in excess of its ratable
share of payments on account of the A Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the A Advances made by them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them, provided, however,
-------- -------
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.13
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such
33
Lender were the direct creditor of the applicable Borrower in the amount of such
participation.
SECTION 2.14. EVIDENCE OF DEBT.
----------------
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(b) The Register maintained by the Agent pursuant to Section 9.07(c)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date, amount and
tenor, as applicable, of each Borrowing, the Borrower that received the proceeds
of such Borrowing, the Type of Advances comprising such Borrowing and the
Interest Period applicable thereto, (ii) the terms of each Assignment and
Acceptance delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder, and (iv) the amount of any sum received by the Agent from each
Borrower hereunder and each Lender's share thereof.
(c) The entries made in the Register shall be conclusive and binding
for all purposes, absent manifest error.
SECTION 2.15. USE OF PROCEEDS.
---------------
(a) Advances shall be used by the Borrowers for Commercial Paper
backup, for Non-Hostile Acquisitions and for general corporate purposes.
(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, 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 2.16. EXTENSION OF THE COMMITMENT TERMINATION DATE. The
--------------------------------------------
Borrowers may, not later than 30 days prior to each anniversary of the Effective
Date (the "Current Anniversary Date"), and not more than once in any calendar
year, commencing
34
not later than 30 days prior to the first anniversary of the Effective Date,
from time to time jointly request that the Commitment Termination Date for all
Eligible Lenders (as defined below) be extended by delivering to the Agent a
copy of an extension request signed by both Borrowers (an "Extension Request")
in substantially the form of Exhibit 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 Anniversary Date, each
Eligible 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 Short Term Facility Credit Agreement. Any
Eligible Lender that shall fail to so notify the Agent and the Borrowers on or
prior to the Determination Date shall be deemed to have declined to so extend.
In the event that, on or prior to the Determination Date, Eligible Lenders
representing 66-2/3% or more of the aggregate amount of the Commitments of all
Eligible Lenders then in effect shall consent to such extension, the Agent shall
so advise the Lenders and the Borrowers, and, subject to execution of
documentation evidencing such extension and consents, the Commitment Termination
Date of each Eligible Lender (each a "Consenting Lender") that has consented on
or prior to the Determination Date to so extend shall be extended to the date
indicated in the Extension Request. Thereafter, (i) for each Consenting Lender,
the term "Commitment Termination Date" shall at all times refer to such date,
unless it is later extended pursuant to this Section 2.16, and (ii) for each
Lender that is not an Eligible Lender and for each Eligible Lender that either
has declined on or prior to the Determination Date to so extend or is deemed to
have so declined, the term "Commitment Termination Date" shall at all times
refer to the date which was the Commitment Termination Date of such Lender
immediately prior to the delivery to the Agent of such Extension Request. In the
event that, as of the Determination Date, the Consenting Lenders represent less
than 66-2/3% of the aggregate amount of the Commitments of all Eligible Lenders
then in effect, the Agent shall so advise the Lenders and the Borrowers, and
none of the Lenders' Commitment Termination Dates shall be extended to the date
indicated in the Extension Request and each Lender's Commitment Termination Date
shall continue to be the date which was the Commitment Termination Date of such
Lender immediately prior to the delivery to the Agent of such Extension Request.
For purposes of this Section 2.16, the term "Eligible Lenders" means, with
respect to any Extension Request, (i) all Lenders if no Lender's Commitment
Termination Date had been extended pursuant to this Section 2.16 prior to the
delivery to the Agent of such Extension Request, and (ii) in all other cases,
those Lenders which had extended their Commitment Termination Date in
35
the most recent extension of any Commitment Termination Date effected pursuant
to this Section 2.16.
SECTION 2.17. SUBSTITUTION OF LENDERS. If any Lender requests
-----------------------
compensation from a Borrower under Section 2.10(a) or (b) or if any Lender
declines to extend its Commitment Termination Date pursuant to Section 2.16, the
Borrowers shall have the right, with the assistance of the Agent, to seek one or
more substitute banks or financial institutions (which may be one or more of the
Lenders) reasonably satisfactory to the Agent and the Borrowers to purchase the
Advances and assume the Commitments of such Lender, and the Borrowers, the
Agent, such Lender, and such substitute banks or financial institutions shall
execute and deliver an appropriately completed Assignment and Acceptance
pursuant to Section 9.07(a) hereof to effect the assignment of rights to and the
assumption of obligations by such substitute banks or financial institutions;
provided that such requesting Lender shall be entitled to compensation under
- --------
Section 2.10 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.
(c) A certificate of the Secretary or an Assistant Secretary of the
Managing Partner of the Partnership
36
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 Short Term Facility Credit Agreement executed by
the Borrowers and each of the other parties thereto; and
37
(m) Evidence satisfactory to the Agent of (i) the absence of any
indebtedness of the Partnership under the Existing Long 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 Long Term Facility Credit Agreement and the Existing
Long Term Facility Guaranty Agreement.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH A BORROWING. The
----------------------------------------
obligation of each Lender to make an A Advance on the occasion of each A
Borrowing (including the initial A Borrowing) shall be subject to the further
conditions precedent that (i) Agent shall have received a Notice of A Borrowing
with respect thereto in accordance with Section 2.02 and (ii) on the date of
such A Borrowing the following statements shall be true (and each of the giving
of the applicable Notice of A Borrowing and the acceptance by the applicable
Borrower of the proceeds of such A Borrowing shall constitute a representation
and warranty by the Partnership and the Corporation that on the date of such A
Borrowing such statements are true):
(a) The representations and warranties of the Partnership and the
Corporation contained in Article IV are correct on and as of the date of
such A Borrowing, before and after giving effect to such A Borrowing and to
the application of the proceeds therefrom, as though made on and as of such
date, except to the extent that any such representation or warranty
expressly relates only to an earlier date, in which case they were correct
as of such earlier date; and
(b) No event has occurred and is continuing, or would result from
such A Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or a Potential Event of Default.
SECTION 3.03. CONDITIONS PRECEDENT TO EACH B BORROWING. The
----------------------------------------
obligation of each Lender which is to make a B Advance on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing is subject to the conditions precedent that (i) the Agent shall
have received the written confirmatory Notice of B Borrowing with respect
thereto in accordance with Section 2.03 and (ii) on the date of such B Borrowing
the following statements shall be true (and each of the giving of the applicable
Notice of B Borrowing and the acceptance by the applicable Borrower of the
proceeds of such B Borrowing shall constitute a representation and warranty
38
by the Partnership and the Corporation that on the date of such B Borrowing such
statements are true):
(a) The representations and warranties of the Partnership and the
Corporation contained in Article IV are correct on and as of the date of
such B Borrowing, before and after giving effect to such B Borrowing and to
the application of the proceeds therefrom, as though made on and as of such
date, except to the extent that any such representation or warranty
expressly relates only to an earlier date, in which case they were correct
as of such earlier date, and
(b) No event has occurred and is continuing, or would result from
such B Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or a Potential Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The
-------------------------------------------------
Partnership represents and warrants as follows:
(a) Due Organization, etc. The Partnership is a general partnership
----------------------
duly organized, validly existing and in good standing under the laws of the
jurisdiction indicated at the beginning of this Agreement.
(b) Due Authorization, etc. The execution, delivery and performance
-----------------------
by the Partnership of this Agreement are within the Partnership's
partnership powers, have been duly authorized by all necessary partnership
action, and do not contravene (i) the Partnership's Partnership Agreement
or (ii) applicable law or any material contractual restriction binding on
or affecting the Partnership.
(c) Governmental Consent. No authorization or approval or other
--------------------
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance
by the Partnership of this Agreement.
(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,
39
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.
(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
40
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 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
41
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 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
42
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, 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.
43
(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 that would
limit the ability of the Partnership or the Corporation to enter into or
perform their respective obligations under this Agreement.
44
(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.
(l) Insurance. The Corporation and its Subsidiaries have in full
---------
force insurance coverage of their respective
45
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.
(o) Equifax Put. The Partnership has the right to sell to CBI, and
-----------
require CBI to purchase and assume, the
46
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.
47
(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 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
48
and each Potential Event of Default, continuing on the date of such
statement, a statement of an authorized financial officer of the
Partnership setting forth details of such Event of Default or
Potential Event of Default and the action which the Partnership has
taken and proposes to take with respect thereto;
(iv) promptly after any significant change in accounting policies
or reporting practices, notice and a description in reasonable detail
of such change;
(v) promptly and in any event within 30 days after the
Partnership or any ERISA Affiliate knows or has reason to know that
any ERISA Event referred to in clause (i) of the definition of ERISA
Event with respect to any Pension Plan has occurred which might result
in liability to the PBGC a statement of the chief accounting officer
of the Partnership describing such ERISA Event and the action, if any,
that the Partnership or such ERISA Affiliate has taken or proposes to
take with respect thereto;
(vi) promptly and in any event within 10 days after the
Partnership or any ERISA Affiliate knows or has reason to know that
any ERISA Event (other than an ERISA Event referred to in (v) above)
with respect to any Pension Plan has occurred which might result in
liability to the PBGC, a statement of the chief accounting officer of
the Partnership describing such ERISA Event and the action, if any,
that the Partnership or such ERISA Affiliate has taken or proposes to
take with respect thereto;
(vii) promptly and in any event within five Business Days after
receipt thereof by the Partnership or any ERISA Affiliate from the
PBGC, copies of each notice from the PBGC of its intention to
terminate any Pension Plan or to have a trustee appointed to
administer any Pension Plan;
(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,
49
(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 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
50
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:
(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;
51
(v) Liens on assets of any Subsidiary of the Partnership
existing at the time such Person becomes a Subsidiary (other than any
such Lien created in contemplation of becoming a Subsidiary);
(vi) purchase money Liens upon or in any property acquired or
held by the Partnership or any Subsidiary in the ordinary course of
business to secure the purchase price of such property or to secure
Debt incurred solely for the purpose of financing the acquisition of
such property (provided that the amount of Debt secured by such Lien
does not exceed 100% of the purchase price of such property and
transaction costs relating to such acquisition) and Liens existing on
such property at the time of its acquisition (other than any such Lien
created in contemplation of such acquisition); and the interest of the
lessor thereof in any property that is subject to a Capital Lease;
(vii) Liens, other than Liens described in clauses (i) through
(vi) and in clause (ix), to secure Debt not in excess of $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
52
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 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,
53
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 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
54
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 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
55
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;
(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
56
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 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
57
or suffer to exist, any Lien, upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign, or permit
any of its Subsidiaries to assign, any right to receive income, in each
case to secure or provide for the payment of any Debt of any Person, unless
the Corporation's obligations hereunder shall be secured equally and
ratably with, or prior to, any such Debt; provided however that the
-------- -------
foregoing restriction shall not apply to the following Liens which are
permitted:
(i) set-off rights, arising by operation of law or under any
contract entered into in the ordinary course of business, and bankers'
Liens, Liens of carriers, warehousemen, mechanics, workmen, employees,
materialmen and other Liens imposed by law;
(ii) Liens in favor of the United States of America to secure
amounts paid to the Corporation or any of its Subsidiaries as advance
or progress payments under government contracts entered into by it so
long as such Liens cover only (x) special bank accounts into which
only such advance or progress payments are deposited and (y) supplies
covered by such government contracts and material and other property
acquired for or allocated to the performance of such government
contracts;
(iii) attachment, judgment and other similar Liens arising in
connection with legal proceedings, provided that the execution or
--------
other enforcement of such Liens is effectively stayed and the claims
secured thereby are being contested in good faith by appropriate
proceedings, and provided that any such judgment does not constitute
--------
an Event of Default;
(iv) Liens on accounts receivable resulting from the sale of such
accounts receivable;
(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
58
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.
(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.
59
(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
(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
60
(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 Short Term Facility Credit Agreement (but not excluding the Debt
arising under the Guaranty (as defined in the Short 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
fail to pay any principal of or premium or interest on any Debt of such
Borrower which is outstanding under the Short 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 Short Term Facility Credit Agreement; or any other event shall occur
or condition shall exist under the Short Term Facility Credit Agreement and
shall continue after the applicable grace period, if any, specified in the
Short Term Facility Credit Agreement, if the effect of such event or
condition is to accelerate, or
61
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 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;
62
(i) Any provision of the Guaranty shall for any reason cease to be
valid and binding on the Guarantor or the Guarantor shall so state in
writing; or
(j)
(i) Any ERISA Event with respect to a Pension Plan shall have
occurred and, 30 days after notice thereof shall have been given to
the Borrowers by the Agent, (x) such ERISA Event shall still exist and
(y) the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Pension Plan and the Insufficiency
of any and all other Pension Plans with respect to which an ERISA
Event shall have occurred and then exist (or in the case of a Pension
Plan with respect to which an ERISA Event described in clause (iii)
through (vi) of the definition of ERISA Event shall have occurred and
then exist, the liability related thereto) is equal to or greater than
$15,000,000; or
(ii) Either Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
an aggregate Withdrawal Liability for all years to such Multiemployer
Plan in an amount that, when aggregated with all other amounts
required to be paid to Multiemployer Plans by such Borrower and its
ERISA Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $15,000,000; or
(iii) Either Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV or ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of
such Borrower and its ERISA Affiliates to all Multiemployer Plans that
are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for
the plan year of such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an
amount exceeding $15,000,000; or
(k) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange
63
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.
64
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
65
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 A Advances then held by each of them (or if
no A Advances are at the time outstanding or if any A Advances are held by
Persons which are not Lenders, ratably according to the respective amounts of
their Commitments), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
- --------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or
66
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.
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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 "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.
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(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 a judgment in any suit brought to enforce the Guarantor's
covenant to pay a portion of the Guarantied Obligations, such judgment
shall not be deemed to release the Guarantor from its covenant to pay the
portion of the Guarantied Obligations that is not the subject of such suit.
(d) The Agent or any Lender, upon such terms as it deems appropriate,
without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any reduction,
limitation, impairment, discharge or termination of the Guarantor's
liability hereunder, from time to time may (i) renew, extend (whether
pursuant to Section 2.16 or otherwise), accelerate (in accordance with the
terms of this Agreement), increase the rate of interest on, or otherwise
change the time, place, manner or terms of payment of the Guarantied
Obligations, (ii) settle, compromise, release or discharge, or accept or
refuse any offer of performance with respect to, or substitutions for, the
Guarantied Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii)
request and accept other guaranties of the Guarantied Obligations and take
and hold security for the payment of this Guaranty or the Guarantied
Obligations; (iv) release, surrender, exchange, substitute, compromise,
settle, rescind, waive, alter, subordinate or modify, with or without
consideration, any security for payment of the Guarantied Obligations, any
other guaranties of the Guarantied Obligations, or any other obligation of
any Person with respect to the Guarantied Obligations; (v) enforce and
apply any security now or hereafter held by or for the benefit of Agent or
any Lender in respect of this Guaranty or the Guarantied Obligations and
direct the order or manner of sale thereof, or exercise any other right or
remedy that Agent or Lenders, or any of them, may have
69
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 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
70
corporate or partnership structure or existence of the Partnership or any
of its Subsidiaries and to any corresponding restructuring of the
Guarantied Obligations; (vi) any failure to perfect or continue perfection
of a security interest in any collateral which secures any of the
Guarantied Obligations; (vii) any defenses which the Partnership may allege
or assert against Agent or any Lender in respect of the Guarantied
Obligations, including but not limited to statute of frauds, statute of
limitations, and usury; and (viii) any other act or thing or omission, or
delay to do any other act or thing, which may or might in any manner or to
any extent vary the risk of the Guarantor as an obligor in respect of the
Guarantied Obligations.
SECTION 8.03. WAIVERS BY THE GUARANTOR. The Guarantor hereby waives,
------------------------
for the benefit of Lenders and Agent:
(a) any right to require Agent or Lenders, as a condition of payment
or performance by the Guarantor, to (i) proceed against the Partnership,
any other guarantor of the Guarantied Obligations or any other Person, (ii)
proceed against or exhaust any security held from the Partnership, any
other guarantor of the Guarantied Obligations or any other Person, (iii)
proceed against or have resort to any balance of any deposit account or
credit on the books of Agent or any Lender in favor of the Partnership or
any other Person, or (iv) pursue any other remedy in the power of Agent or
any Lender whatsoever;
(b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of the Partnership including,
without limitation, any defense based on or arising out of the lack of
validity or the unenforceability of the Guarantied Obligations or any
agreement or instrument relating thereto or by reason of the cessation of
the liability of the Partnership from any cause other than indefeasible
payment in full of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
(d) (i) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of this Guaranty and any
legal or equitable discharge of the Guarantor's obligations hereunder, (ii)
the benefit of any statute of limitations affecting the Guarantor's
71
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
(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
72
benefit of, and any right to participate in, any security now or hereafter held
by Agent or any Lender. The Guarantor further agrees that, to the extent that
its agreement to defer exercising any of its rights of subrogation and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation the Guarantor
may have against the Partnership or against any collateral or security, and any
rights of contribution the Guarantor may have against any other guarantor, shall
be junior and subordinate to any rights Agent or Lenders may have against the
Partnership, to all right, title and interest Agent or Lenders may have in any
such collateral or security, and to any right Agent or Lenders may have against
such other guarantor. Agent, on behalf of Lenders, may use, sell or dispose of
any item of collateral or security as it sees fit without regard to any
subrogation rights the Guarantor may have, and upon any such disposition or sale
any rights of subrogation the Guarantor may have shall terminate. If any amount
shall be paid to the Guarantor on account of such subrogation rights at any time
when all Guarantied Obligations shall not have been paid in full, such amount
shall be held in trust for Agent on behalf of Lenders and shall forthwith be
paid over to Agent for the benefit of Lenders to be credited and applied against
the Guarantied Obligations in accordance with the terms of this Agreement or any
applicable security agreement.
SECTION 8.06. SUBORDINATION OF OTHER OBLIGATIONS. Any indebtedness
----------------------------------
of the Partnership or any Subsidiary of the Partnership now or hereafter held by
the Guarantor is hereby subordinated in right of payment to the Guarantied
Obligations, and any such 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.
73
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 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
74
of this Agreement, commence or join with any other Person in commencing any
bankruptcy, reorganization or insolvency proceedings of or against the
Partnership. The obligations of the Guarantor under this Guaranty shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of the Partnership or
by any defense which the Partnership may have by reason of the order, decree or
decision of any court or administrative body resulting from any such proceeding.
(b) The Guarantor acknowledges and agrees that any interest on any
portion of the Guarantied Obligations which accrues after the commencement of
any proceeding referred to in clause (a) above (or, if interest on any portion
of the Guarantied Obligations ceases to accrue by operation of law by reason of
the commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceedings had not been
commenced) shall be included in the Guarantied Obligations because it is the
intention of the Guarantor and Agent that the Guarantied Obligations which are
guarantied by the Guarantor pursuant to this Guaranty should be determined
without regard to any rule of bankruptcy or other similar laws or which may
relieve the Partnership of any portion of such Guarantied Obligations. The
Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession,
assignee for the benefit of creditors or similar person to pay Agent, or allow
the claim of Agent in respect of, any such interest accruing after the date on
which such proceeding is commenced.
(c) In the event that all or any portion of the Guarantied
Obligations are paid by the Partnership, the obligations of the Guarantor
hereunder shall continue and remain in full force and effect or be reinstated,
as the case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from Agent or any Lender as a
preference, fraudulent transfer or otherwise, and any such payments which are so
rescinded or recovered shall constitute Guarantied Obligations for all purposes
under this Guaranty.
SECTION 8.13. NOTICE OF EVENTS. As soon as the Guarantor obtains
----------------
knowledge thereof, the Guarantor shall give Agent written notice of any
condition or event which has resulted or might reasonably be expected to result
in (a) a material adverse change in the financial condition of the Guarantor or
the Partnership, or (b) a breach of or noncompliance with any term, condition or
covenant contained in this Agreement or in any document delivered pursuant
hereto, or (c) a material breach of,
75
or material noncompliance with, any material term, condition or covenant of any
material contract to which the Guarantor or the Partnership is a party or by
which the Guarantor or the Partnership or the Guarantor's or the Partnership's
property may be bound, or (d) the Guarantor or any of its Subsidiaries being
suspended or debarred by any governmental entity from entering into any
government contract or government subcontract, from otherwise engaging in any
business relating to government contracts or from participation in government
non-procurement programs, if such suspension or debarment may have a material
adverse effect on the business, condition (financial or otherwise), operations
or properties of the Guarantor and its Subsidiaries, taken as a whole.
SECTION 8.14. SET OFF. In addition to any other rights any Lender 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
76
the amount and payment terms of the Guarantied Obligations and does not
otherwise limit the Guarantor's obligations under this Guaranty.
SECTION 8.16. SUCCESSORS AND ASSIGNS. This Guaranty is a continuing
----------------------
guaranty and shall be binding upon the Guarantor and its successors and assigns.
This Guaranty shall inure to the benefit of Lenders, Agent and their respective
successors and assigns. The Guarantor shall not assign this Guaranty or any of
the rights or obligations of the Guarantor hereunder without the prior written
consent of all Lenders. Any Lender may, without notice or consent, assign its
interest in this Guaranty in whole or in part. The terms and provisions of this
Guaranty shall inure to the benefit of any assignee or transferee of any rights
and obligations under this Agreement, and in the event of such transfer or
assignment the rights and privileges herein conferred upon Lenders and Agent
shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof.
SECTION 8.17. FURTHER ASSURANCES. At any time or from time to time,
------------------
upon the request of Agent or Majority Lenders, the Guarantor shall execute and
deliver such further documents and do such other acts and things as Agent or
Majority Lenders may reasonably request in order to effect fully the purposes of
this Guaranty.
77
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 A Advances or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the A Advances or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the A Advances, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action
hereunder, (f) limit or release the liability of the Guarantor under the
Guaranty, (g) postpone any date fixed for payment under the Guaranty or (h)
amend Section 2.16 or this Section 9.01; and provided, further, that no
-------- -------
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement; and provided further, that any
-------- -------
amendment, modification, termination or waiver of the principal amount of any B
Advance or payments or prepayments by either Borrower in respect thereof, the
scheduled maturity dates of any B Advance, the dates on which interest is
payable and decreases in interest rates borne by B Advances shall not be
effective without the written concurrence of the Lender which has funded such B
Advance.
SECTION 9.02. NOTICES, ETC. All notices and other communications
-------------
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Corporation, at its address at Computer Sciences
Corporation, 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
78
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 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
79
delivered hereunder, including, without limitation, reasonable counsel fees and
out-of-pocket expenses in connection with the enforcement of rights under this
Section 9.04(a).
(b) If any payment of principal of any Eurodollar Rate Advance or B
Advance extended to either Borrower is made other than on the last day of the
interest period for such Advance, as a result of a payment pursuant to Section
2.06 or acceleration of the maturity of the Advances pursuant to Section 6.01 or
for any other reason, such Borrower shall, upon demand by any Lender (with a
copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses which it may reasonably incur as a result of such payment,
including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(c) The Partnership and the Corporation jointly and severally agree
to indemnify and hold harmless the Agent, each Lender and each director,
officer, employee, agent, attorney and affiliate of the Agent and each Lender
(each an "indemnified person") in connection with any expenses, losses, claims,
damages or liabilities to which the Agent, a Lender or such indemnified persons
may become subject, insofar as such expenses, losses, claims, damages or
liabilities (or actions or other proceedings commenced or threatened in respect
thereof) arise out of the transactions referred to in this Agreement or arise
from any use or intended use of the proceeds of the Advances, or in any way
arise out of activities of the Borrowers or the Guarantor that violate
Environmental Laws, and to reimburse the Agent, each Lender and each indemnified
person, upon their demand, for any reasonable legal or other out-of-pocket
expenses incurred in connection with investigating, defending or participating
in any such loss, claim, damage, liability, or action or other proceeding,
whether commenced or threatened (whether or not the Agent, such Lender or any
such person is a party to any action or proceeding out of which any such expense
arises). Notwithstanding the foregoing, the Corporation and the Partnership
shall have no obligation hereunder to an indemnified person with respect to
indemnified liabilities which have resulted from the gross negligence, bad faith
or willful misconduct of such indemnified person.
SECTION 9.05. RIGHT OF SET-OFF. Upon (i) the occurrence and during
----------------
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section
80
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 Long Term Facility Credit Agreement and (ii) the
Existing Long 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 A Advances owing to it); provided, however,
-------- -------
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement (other than any B
Advances), (ii) after giving effect to any such assignment, (1) the assigning
Lender shall no longer have any Commitment or (2) the amount of the Commitment
of 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
81
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; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and Section 4.02, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
82
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.
(e) Each Lender may assign to one or more banks or other entities any
B Advance or B Advances made by it.
(f) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment and
the Advances
83
owing to it; provided, however, that (i) such Lender's obligations under this
-------- -------
(including, without limitation, its Commitment to the Agreement Borrowers
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Advance for all purposes
of this Agreement, (iv) the Borrowers, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and (v) no Lender shall
grant any participation under which the participant shall have rights to require
such Lender to take or omit to take any action hereunder or approve any
amendment to or waiver of this Agreement, except to the extent such amendment or
waiver would: (A) extend the Termination Date of such Lender; or (B) reduce the
interest rate or the amount of principal or fees applicable to Advances or the
Commitment in which such participant is participating.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Partnership or the Corporation
furnished to such Lender by or on behalf of the Partnership or the Corporation;
provided that, prior to any such disclosure, the assignee or Participant or
- --------
proposed assignee or participant shall agree to preserve the confidentiality of
any confidential information relating to the Partnership or the Corporation
received by it from such Lender.
SECTION 9.08. GOVERNING LAW. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York.
SECTION 9.09. EXECUTION IN COUNTERPARTS. This Agreement may be
-------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 9.10. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. The
---------------------------------------------
Partnership and the Corporation hereby irrevocably submit to the jurisdiction of
any New York state or Federal court sitting in New York, New York in any action
or proceeding arising out of or relating to this Agreement, and the Partnership
and the Corporation hereby irrevocably agree that all claims in respect of such
action or proceeding may be heard and determined in such New York state or
Federal court. The Partnership and the Corporation hereby irrevocably waive, to
the
84
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 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
85
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.
86
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
----------------
Title: Vice President
S-1
Commitment Banks
- ---------- -----
$15,000,000.00 CITICORP USA, INC.
By:/s/ Barbara A. Cohen
----------------
Title: Vice President
$15,000,000.00 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:/s/ Lori Kannegieter
----------------
Title: Vice President
$15,000,000.00 CHEMICAL BANK
By:/s/ Jeffery Howe
------------
Title: Vice President
$7,500,000.00 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:/s/ Robert M. Osieske
-----------------
Title: Vice President
$7,500,000.00 J.P. MORGAN DELAWARE
By__________________________
Title:
$9,000,000.00 THE BANK OF NEW YORK
By:/s/ Daniel Black
------------
S-2
Title: Senior Vice President
$9,000,000.00 BARCLAYS BANK PLC
By:/s/ Philip S.A. Caparis
-------------------
Title: Associate Director
$9,000,000.00 THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ Randall Taylor
--------------
Title: Vice President
$9,000,000.00 MELLON BANK, N.A.
By:/s/ Edwin H. Wiest
--------------
Title: First Vice President
$9,000,000.00 NATIONSBANK OF TEXAS, N.A.
By:/s/ Michele M. Shaforth
-------------------
Title: Senior Vice President
$9,000,000.00 NBD BANK, N.A.
By:/s/ James R. Frye
-------------
Title: First Vice President
S-3
$6,000,000.00 BANK BRUSSELS LAMBERT
By:/s/ Eric Hollanders
---------------
Title: Senior Vice President
By:/s/ Gerrit Verlodt
--------------
Title: Senior Vice President
$6,000,000.00 THE BANK OF NOVA SCOTIA
By:/s/ James M. Spanier
----------------
Title: Relationship Manager
$6,000,000.00 CORESTATES BANK, N.A.
By:/s/ Susan M. Atkinson
-----------------
Title: Vice President
$6,000,000.00 FIRST INTERSTATE BANK OF CALIFORNIA
By:/s/ William J. Baird
----------------
Title: Vice President
$6,000,000.00 NATIONAL WESTMINSTER BANK PLC
By:/s/ Daniel R. Dornblaser
--------------------
Title: Vice President
$6,000,000.00 SOCIETE GENERALE
By:/s/ Jean-Gabriel Langlois
---------------------
Title: Vice President & Manager
S-4
$150,000,000 Total of the Commitments
S-5
SCHEDULE I
COMPUTER SCIENCE CORPORATION and CSC ENTERPRISES
CREDIT AGREEMENT (LONG 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 AND 1850 Gateway Blvd. 1850 Gateway Blvd.
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 OF NEW 60 Wall Street J.P. Morgan Services, Inc.
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
Name of Bank Domestic Lending Office 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 CHICAGO 1 First National Plaza 1 First National Plaza
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 Office 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-1
NOTICE OF A 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 (Long 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 an A Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such A Borrowing (the "Proposed A
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is ___________,
19__.
(ii) The Type of A Advances comprising the Proposed A Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$______________.
A-1-1
(iv) If the Type of A Advances comprising the Proposed A Borrowing
is Eurodollar Rate Advances, the Interest Period for each A Advance made as
part of the Proposed A Borrowing is __ month[s].
Each of the undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed A
Borrowing:
(A) the representations and warranties contained in Article IV of the
Credit Agreement are correct, before and after giving effect to the
Proposed A Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(B) no event has occurred and is continuing, or would result from
such Proposed A Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or a Potential Event of
Default; and
(C) either (i) the amount of the Proposed A Borrowing does not exceed
the aggregate amount of the unused Commitments of the Lenders (after giving
effect to any B Reductions but without giving effect to any CP Reductions)
and the proceeds of the Proposed A Borrowing will be used to repay
Commercial Paper, or (ii) the amount of the Proposed A Borrowing does not
exceed the aggregate amount of the unused Commitments of the Lenders after
giving effect to any CP Reductions and (unless the proceeds of the Proposed
A Borrowing will be used to repay the principal amount of B Advances) any B
Reductions.
A-1-2
The Corporation hereby further certifies that after giving effect to
the Proposed A Borrowing, the aggregate amount of the Guarantied Obligations (as
defined in the Credit Agreement), together with all other Debt (including any
Advances under the Credit Agreement) incurred by the Corporation pursuant to the
resolutions of the Board of Directors of the Corporation authorizing the Credit
Agreement, does not exceed the aggregate amount of Debt authorized by such
resolutions.
Very truly yours,
CSC ENTERPRISES, a Delaware general
partnership
By CSC Enterprises, Inc.,
Its Managing Partner
By:______________________
Title:
COMPUTER SCIENCES CORPORATION
By:___________________________
Title:
A-1-3
EXHIBIT A-2
NOTICE OF B 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 (Long 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 pursuant to Section 2.03 of
the Credit Agreement that the [Partnership] [Corporation] hereby requests a B
Borrowing under the Credit Agreement, and in that connection sets forth the
terms on which such B Borrowing (the "Proposed B Borrowing") is requested to be
made:
(A) Date of B Borrowing _________________________
(B) Amount of B Borrowing _________________________
(C) Maturity Date _________________________
(D) Interest Rate Basis _________________________
(E) Interest Payment Date(s) _________________________
(F) __________________ _________________________
(G) __________________ _________________________
(H) __________________ _________________________
Each of the undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed B
Borrowing:
A-2-1
(a) the representations and warranties contained in Article IV of the
Credit Agreement are correct, before and after giving effect to the
Proposed B Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed B Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default or a Potential Event of Default;
(c) the aggregate amount of the Proposed B Borrowing and all other
Borrowings to be made on the same day under the Credit Agreement is within
the aggregate amount of the unused Commitments of the Lenders; and
(d) the aggregate amount of all B Advances (including the Proposed B
Borrowing) scheduled to be outstanding at any time through the maturity of
such B Advances does not exceed the aggregate amount of the Commitments of
the Lenders scheduled to be in effect at such time (giving effect to any CP
Reductions but without giving effect to any B Reductions).
The [Partnership] [Corporation] hereby confirms that the Proposed B
Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of
the Credit Agreement.
A-2-2
The Corporation hereby further certifies that after giving effect to
the Proposed B Borrowing, the aggregate amount of the Guarantied Obligations (as
defined in the Credit Agreement), together with all other Debt (including any
Advances under the Credit Agreement) incurred by the Corporation pursuant to the
resolutions of the Board of Directors of the Corporation authorizing the Credit
Agreement, does not exceed the aggregate amount of Debt authorized by such
resolutions.
Very truly yours,
CSC ENTERPRISES, a Delaware general
partnership
CSC ENTERPRISES, INC.,
Its Managing Partner
By_______________________
Title:
COMPUTER SCIENCES CORPORATION
By:___________________________
Title:
A-2-3
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Dated ________, 19__
Reference is made to the Credit Agreement (Long 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 (other than in respect of B Advances) which
represents the percentage interest specified on Schedule 1 of all outstanding
rights and obligations under the Credit Agreement (other than in respect of B
Advances), including, without limitation, such interest in the Assignor's
Commitment and the A Advances owing to the Assignor. After giving effect to
such sale and assignment, the Assignee's Commitment, the amount of the A
Advances owing to the Assignee, and the Commitment Termination Date of the
Assignee will be as set forth in Section 2 of Schedule 1. 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
B-1
thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Partnership or the
Corporation or the performance or observance by the Partnership or the
Corporation of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 and Section 4.02 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) specifies as
its Domestic Lending Office (and address for notices) and Eurodollar Lending
Office the offices set forth beneath its name on the signature pages hereof [and
(vii) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement or such other documents as
are necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty]./1/
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").
_____________________
/1/ If the Assignee is organized under the laws of a jurisdiction outside
the United States.
B-2
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit Agreement
in respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement for periods prior to the Effective Date directly
between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
B-3
Schedule 1
to
Assignment and Acceptance
Dated _____, 19__
Section 1.
---------
Percentage Interest: ______%
Section 2.
---------
Assignee's Commitment: $______
Aggregate Outstanding Principal
Amount of A Advances owing to the Assignee: $______
A Advances payable to the Assignee
Principal amount: _______
A Advances payable to the Assignor
Principal amount: ______
Assignee's Commitment Termination Date: _________, 199__
Section 3.
---------
Effective Date/2/: ________, 199__
[NAME OF ASSIGNOR]
By:____________________________
Title:
[NAME OF ASSIGNEE]
By:____________________________
Title:
_________________________
/2/ 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 (Long 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
(Long 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 respect of the Credit Agreement and the transactions contemplated
C-1-1
Citicorp USA, Inc.
September __, 1994
Page 2
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.
(b) To the extent that the obligations of the Obligors may be
dependent upon such matters, each of the Banks and the
C-1-2
Citicorp USA, Inc.
September __, 1994
Page 3
Agent has all requisite power and authority to execute, deliver and perform its
obligations under the Credit Agreement; the execution and delivery of the Credit
Agreement and performance of such obligations have been duly authorized by all
necessary action on the part of such Bank and the Agent; the Credit Agreement
has been duly executed and delivered by such Bank or the Agent; and the Credit
Agreement is the legal, valid and binding obligation of such Bank or the Agent,
enforceable against it in accordance with its terms.
(c) The signatures on all documents examined by us are genuine, and,
except as to the Partnership (with respect to which the following assumption in
this clause (c) does not apply), all individuals executing such documents were
thereunto duly authorized.
(d) The documents submitted to us as originals are authentic and the
documents submitted to us as certified or reproduction copies conform to the
originals.
With respect to questions of fact material to the opinions expressed
below, we have, with your consent, relied upon certificates of public officials
and officers of the Managing Partner and the Corporation, in each case without
having independently verified the accuracy or completeness thereof.
With respect to any opinion herein in regard to the existence or
absence of facts that is stated to be to our actual knowledge, such statement
means that, during the course of our representation of the Obligors, no
information has come to the attention of the lawyers in our Firm participating
in such representation that has given them actual knowledge of facts contrary to
the existence or absence of the facts indicated. No inference as to our
knowledge of the existence or absence of such facts should be drawn from our
representation of the Obligors.
Based upon the foregoing, and subject to the qualifications,
exceptions, limitations and assumptions hereinafter set forth, we are of the
opinion that:
1. The Partnership is a general partnership validly existing and in
good standing under the laws of the State of Delaware and has all requisite
partnership power and authority to
C-1-3
Citicorp USA, Inc.
September __, 1994
Page 4
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 performance
by such Obligor of the Credit Agreement, except such filings as may be required
in the ordinary course to keep in full
C-1-4
Citicorp USA, Inc.
September __, 1994
Page 5
force and effect rights and franchises material to the business of the Obligors
and in connection with the payment of taxes.
6. Neither Obligor is an "investment company" or a Person directly
or indirectly "controlled" by or "acting on behalf of" an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
Each of the opinions set forth, above are subject to the following
qualifications, exceptions, limitations and assumptions:
(a) Our opinions are subject to (i) the effect of bankruptcy,
insolvency, reorganization, moratorium, arrangement or other similar laws
affecting enforcement of creditors' rights generally, including, without
limitation, the effect of statutory or other laws regarding fraudulent
conveyances or transfers, preferential transfers or laws affecting distributions
by corporations to stockholders and (ii) general principles of equity,
regardless of whether enforceability is considered in a proceeding in equity or
at law, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance or other equitable relief (whether sought in a proceeding at law or
in equity).
(b) We have assumed that no agreement exists that would expand,
modify or otherwise affect the respective rights or obligations of the parties
to the Credit Agreement. We have no actual knowledge of any such agreement.
(c) We express no opinion with respect to the legality, validity,
binding effect or enforceability of (i) any provision of the Credit Agreement
regarding the remedies available to any party which permit any party to take
discretionary action which is arbitrary, unreasonable or capricious, or is not
taken in good faith or in a commercially reasonable manner, whether or not such
action is permitted under the Credit Agreement; (ii) any provision of the Credit
Agreement to the effect that rights or remedies are not exclusive or may be
exercised without notice, that every right or remedy is cumulative and may be
exercised in addition to any other right or remedy, that the election of some
particular remedy does not
C-1-5
Citicorp USA, Inc.
September __, 1994
Page 6
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 (Long 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 (Long 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.
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
C-2-2
Citicorp USA, Inc.
September __, 1994
Page 3
execution and delivery of the Credit Agreement by the Managing Partner, acting
in its capacity as the managing general partner of the Partnership, has been
duly authorized by all necessary corporate action on behalf of the Managing
Partner, and the Credit Agreement has been duly executed and delivered by the
Managing Partner.
3. Neither the execution and delivery of the Credit Agreement by the
Corporation, nor the consummation of the transactions contemplated thereby, nor
compliance on or prior to the date hereof with the terms and conditions thereof,
conflicts with or results in a breach of the certificate of incorporation or
bylaws of the Corporation, each as in effect on the date hereof.
4. Neither the execution and delivery by the Corporation of the Credit
Agreement, performance of its respective obligations thereunder, nor the
consummation of the transactions contemplated thereby, constitutes a violation
of the General Corporation Law of the State of Nevada.
5. No consent, approval or authorization of, and no registration,
declaration or filing with, any administrative, governmental or other public
authority is required to be obtained or made by the Corporation under the
General Corporation Law of the State of Nevada for the execution, delivery and
performance by the Corporation of the Credit Agreement, except such filings as
may be required in the ordinary course to keep in full force and effect rights
and franchises material to the business of the Corporation and in connection
with the payment of taxes.
I am admitted to the practice of law before the United States Supreme Court and
several lower federal courts as well as the state courts of Kansas, Pennsylvania
and the District of Columbia. My opinion with respect to foreign qualification
contained in numbered paragraph 1 is based solely upon a review of unofficial
compilations of the provisions of the statutory laws of the relevant
jurisdictions. I expressly disclaim any obligation or undertaking to update or
modify this opinion as a consequence of any future changes in the applicable
laws or in the facts bearing upon this opinion.
I call to your attention that I am not admitted to the practice of law in the
State of Nevada; however I am familiar with the
C-2-3
Citicorp USA, Inc.
September __, 1994
Page 4
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 (Long 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 (Long
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., Vice President and General
Counsel of the Corporation (the
D-1
Page 2 - Citicorp USA, Inc. and Banks - September __, 1994
Party to the Credit Agreement
"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 Eligible Lender]
Pursuant to that certain Credit Agreement (Long 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 Eligible Lender to []/1/ pursuant to
Section 2.16 of the Credit Agreement.
Each of the undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the effectiveness
of the extension requested hereby ("Proposed Extension"):
(a) the representations and warranties contained in Article IV of the
Credit Agreement are correct, before and after giving effect to the
Proposed Extension;
(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
___________________
/]]/]Insert date which is one year after the latest Commitment Termination Date
in effect.
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(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 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__[2], and ___________, 199__[3],
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.
______________________
/]]/] Insert date of the most recent audited balance sheet of the Corporation
and its Subsidiaries.
/]]/] Insert date of the most recent audited balance sheet of the Partnership
and its Subsidiaries.
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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 Eligible Lender
hereby consents to the extension
of its Commitment Termination
Date as requested above. This
consent is subject to the terms
of Section 2.16 of the Credit
Agreement.
DATED: ___________________
[ELIGIBLE LENDER]
By: ______________________
_______________________
/]]/]Insert tenth day prior to the Current Anniversary Date (as defined in
Section 2.16 of Credit Agreement).
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Title:______________________
E-4
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 Office Building 9.5 19.0
Road & Data Center -------
San Diego, CA
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