EXHIBIT 10.26
AMENDMENT AGREEMENT
TO CREDIT AGREEMENT (Short Term Facility)
This AMENDMENT AGREEMENT TO CREDIT AGREEMENT (Short Term Facility)
(this "Amendment Agreement") is dated as of August 18, 2000 and entered into
by and among CSC Enterprises, a Delaware general partnership (the
"Partnership"), as a Borrower, Computer Sciences Corporation, a Nevada
corporation (the "Corporation"), as a Borrower and as the Guarantor, the
financial institutions (the "Banks") listed on the signature pages hereof, and
Citicorp USA, Inc. ("CUSA"), as administrative agent (the "Agent") for the
Lenders, and is made with reference to that certain Credit Agreement (Short
Term Facility) dated as of August 20, 1999 (the "Existing Agreement"), by and
among the Partnership, the Corporation, the lenders listed on the signature
pages thereof, and the Agent. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Amended and
Restated Credit Agreement (as defined below).
RECITALS
WHEREAS, the Corporation, the Partnership, the Agent and the Lenders
desire, subject to the terms and conditions hereinafter set forth, to
effectuate an extension of the Termination Date of each Lender and make
certain other changes to the Existing Agreement by amending and restating the
Existing Agreement together with all schedules and exhibits thereto in its
entirety in the form of the Amended and Restated Credit Agreement:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as
follows:
Section 1. AMENDMENT AND RESTATEMENT OF EXISTING CREDIT AGREEMENT
On the Amended and Restated Credit Agreement Effective Date (as
defined below), the Existing Agreement (including all schedules and exhibits
thereto) shall be and is hereby amended and restated to read in its entirety
as set forth in Annex A hereto (as set forth in such Annex A, the "Amended and
Restated Credit Agreement"), and as so amended and restated is hereby
ratified, approved and confirmed in each and every respect. The rights and
obligations of the parties to the Existing Agreement with respect to the
period prior to the Amended and Restated Credit Agreement Effective Date shall
not be affected by such amendment and restatement.
Section 2. CONDITIONS TO EFFECTIVENESS
The amendments and modifications referred to in Section 1 of this
Amendment Agreement shall become effective only upon the satisfaction on or
prior to August 18, 2000 of all of the following conditions precedent and the
conditions set forth in Section 5E hereof (the date of satisfaction of such
conditions being referred to herein as the "Amended and Restated Credit
Agreement Effective Date"):
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A. On or before the Amended and Restated Credit Agreement Effective
Date, the Corporation and the Partnership shall deliver to the Lenders (or to
the Agent for the Lenders with sufficient originally executed copies, where
appropriate, for each Lender) the following, each, unless otherwise noted,
dated the Amended and Restated Credit Agreement Effective Date:
1. A certificate of an authorized officer of the Managing Partner
to the effect that the copy of the Partnership's Partnership Agreement dated
as of December 28, 1990 and previously delivered to the Agent is a complete
and correct copy of the Partnership's Partnership Agreement, as amended to
date.
2. Certified copies of resolutions of the Board of Directors of the
Managing Partner of the Partnership approving this Amendment Agreement, and of
all documents evidencing other necessary partnership action and governmental
approvals, if any, with respect to this Amendment Agreement.
3. A certificate of the Secretary or an Assistant Secretary of the
Managing Partner of the Partnership certifying the names and true signatures
of the officers of the Managing Partner authorized to sign this Amendment
Agreement and the other documents to be delivered by the Partnership
hereunder.
4. Certified copies of the resolutions of the Board of Directors of
the Corporation approving this Amendment Agreement, and of all documents
evidencing other necessary corporate action and governmental approvals, if
any, with respect to this Amendment Agreement;
5. 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 Amendment Agreement and the other
documents to be delivered by the Corporation hereunder; and
6. A certificate of the Secretary or Assistant Secretary of the
Corporation and of the Managing Partner of the Partnership, dated the Amended
and Restated Credit Agreement Effective Date, certifying the correctness and
completeness of the copies of Corporation's and the Managing Partner's
Certificate of Incorporation and Bylaws previously delivered to the Agent,
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 Amended and Restated Credit Agreement
Effective Date.
B. A favorable opinion of Hayward D. Fisk, Esq., General Counsel of
the Corporation in form and substance satisfactory to the Agent.
Section 3. THE CORPORATION'S REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Amendment Agreement and to amend and restate the Credit Agreement as described
herein, the Corporation represents and warrants to the Agent and each Lender
that the following
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statements are true, correct and complete on and as of the Amended and
Restated Credit Agreement Effective Date:
A. Due Authorization, etc. The execution, delivery and performance
----------------------
by the Corporation of this Amendment 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.
B. 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 Amendment Agreement.
C. Validity. This Amendment Agreement has been duly executed and
--------
delivered by the Corporation, and each of this Amendment Agreement and the
Amended and Restated Credit 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.
D. Incorporation of Representations and Warranties From the Amended
----------------------------------------------------------------
and Restated Credit Agreement. The representations and warranties contained
-----------------------------
in Section 4.02 of the Amended and Restated Credit Agreement are true, correct
and complete in all material respects on and as of the Amended and Restated
Credit Agreement Effective Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
E. Absence of Default. No event has occurred and is continuing or
------------------
will result from the consummation of the transactions contemplated by this
Amendment Agreement that would constitute an Event of Default or a Potential
Event of Default.
Section 4. THE PARTNERSHIP'S REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Amendment Agreement and to amend and restate the Credit Agreement as described
herein, the Partnership represents and warrants to the Agent and each Lender
that the following statements are true, correct and complete on and as of the
Amended and Restated Credit Agreement Effective Date:
A. Due Authorization, etc. The execution, delivery and performance
----------------------
by the Partnership of this Amendment 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.
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B. 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 Amendment Agreement.
C. Validity. This Amendment Agreement has been duly executed and
--------
delivered by the Partnership, and each of this Amendment Agreement and the
Amended and Restated Credit Agreement is the legal, valid and binding
obligation of the Partnership enforceable against the Partnership in
accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency, arrangement, moratorium and other similar laws affecting
creditors' rights generally and to the application of general principles of
equity.
D. Incorporation of Representations and Warranties From the Amended
----------------------------------------------------------------
and Restated Credit Agreement. The representations and warranties contained
-----------------------------
in Section 4.01 of the Amended and Restated Credit Agreement are true, correct
and complete in all material respects on and as of the Amended and Restated
Credit Agreement Effective Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
E. Absence of Default. No event has occurred and is continuing or
------------------
will result from the consummation of the transactions contemplated by this
Amendment Agreement that would constitute an Event of Default or a Potential
Event of Default.
Section 5. MISCELLANEOUS
A. Acknowledgement by the Corporation. The Corporation hereby
----------------------------------
acknowledges that it has reviewed the terms and provisions of the Existing
Agreement and this Amendment Agreement and consents to the amendment and
restatement of the Existing Agreement effected pursuant to this Amendment
Agreement. The Corporation hereby confirms that the Guaranty will continue to
guaranty to the fullest extent possible the payment and performance of all
Guarantied Obligations, including without limitation the payment and
performance of all such Guarantied Obligations in respect of the obligations
of the Partnership now or hereafter existing under or in respect of the
Amended and Restated Credit Agreement. The Corporation acknowledges and
agrees that the Guaranty shall continue in full force and effect and that all
of its obligations thereunder shall be valid and enforceable and shall not be
impaired or limited by the execution or effectiveness of this Amendment
Agreement.
B. References. Reference to and effect on the Existing Agreement.
(i) On and after the Amended and Restated Credit Agreement
Effective Date, each reference in the to this "Agreement", "thereunder",
"thereof" or words of like import referring to the Existing Agreement shall
mean and be a reference to the Amended and Restated Credit Agreement.
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(ii) Except as specifically amended by this Amendment Agreement,
the Existing Agreement shall remain in full force and effect and are hereby
ratified and confirmed.
(i) The execution, delivery and performance of this Amendment
Agreement shall not, except as expressly provided herein, constitute a waiver
of any provision of, or operate as a waiver of any right, power or remedy of
the Agent or any Lender under, the Existing Agreement.
C. Headings. Section and subsection headings in this Amendment
--------
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Amendment Agreement for any other purpose or be
given any substantive effect.
D. Applicable Law. THIS AMENDMENT AGREEMENT AND THE RIGHTS AND
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OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
E. Counterparts; Effectiveness. This Amendment Agreement may be
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executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but
one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document. This Amendment
Agreement (other than Section 1 hereof, the effectiveness of which is governed
by Section 2 hereof) shall become effective upon the execution of a
counterpart hereof by the Corporation, the Partnership, Majority Lenders, and
the Agent and receipt by the Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
CSC ENTERPRISES, a Delaware partnership
By: CSC Enterprises, Inc., its Managing
Partner
By /s/ H.D. Fisk
-------------------------------
Name: H.D. Fisk
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
CSC ENTERPRISES, a Delaware partnership
By: CSC Enterprises, Inc., its Managing
Partner
By /s/ Leon J. Level
----------------------------
Name: Leon J. Level
Title: Vice President
COMPUTER SCIENCES CORPORATION,
a Nevada corporation
By /s/ Leon J. Level
-------------------------------
Name: Leon J. Level
Title: Vice President
CITICORP USA, INC.
(As Agent and a Lender)
By /s/ Walter Larsen
-------------------------------
Name: Walt Larsen
Title: Vice President
BANCA DI ROMA (As a Lender)
By /s/ Thomas C. Woodruff
-------------------------------
Name: Thomas C. Woodruff (97969)
Title: Vice President
By /s/ Richard G. Dietz
-------------------------------
Name: Richard G. Diegz (97271)
Title: Vice President
BANCA NAZIONALE DEL LAVORO S.p.A.
(As a Lender)
By /s/ Roberto Mancone
-------------------------------
Name: Roberto Mancone
Title: Vice President
By /s/ Leonardo Valentini
-------------------------------
Name: Leonardo Valentini
Title: First Vice President
Dresdner Bank AG,
New York and Grand Cayman Branches
(As a Lender)
By /s/ Deborah Slusarczyk
-------------------------------
Name: Deborah Slusarczyk
Title: First Vice President
By /s/ Richard Morris
-------------------------------
Name: Richard Morris
Title: Senior Vice President
Mellon Bank N.A. (As a Lender)
By /s/ Lawrence C. Ivey
-------------------------------
Name: Lawrence C. Ivey
Title: Vice President
FIRST UNION NATIONAL BANK (As a Lender)
By /s/ Mark B. Felker
-------------------------------
Name: Mark B. Felker
Title: Senior Vice President
THE BANK OF NOVA SCOTIA (As a Lender)
By /s/ Ed Kofman
-------------------------------
Name: Ed Kofman
Title: Director
THE BANK OF NEW YORK (As a Lender)
By /s/ Jennifer S. Ellerman
-------------------------------
Name: Jennifer S. Ellerman
Title: Vice President
BANK ONE, NA (fka)
THE FIRST NATIONAL BANK OF CHICAGO
(As a Lender)
By /s/ Stephanie A. Mack
-------------------------------
Name: Stephanie A. Mack
Title: Commercial Banking Officer
WELLS FARGO BANK, NA (As a Lender)
By /s/ Catherine M. Wallace
-------------------------------
Name: Catherine M. Wallace
Title: Vice President
By /s/ Beth Filipponi
-------------------------------
Name: Beth Filipponi
Title: Vice President
NATIONAL WESTMINSTER BANK, Plc
(As a Lender)
By /s/ Phil Boyall
-------------------------------
Name: Phil Boyall
Title: Senior Relationship Manager
STANDARD CHARTERED BANK(As a Lender)
By /s/ Mary Machado-Schammel
-------------------------------
Name: Mary Machado-Schammel
Title: Senior Vice President
By /s/ Beth Corey
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Name: Beth Corey
Title: Vice President
REVOLVING COMMITMENT VEHICLE
CORPORATION (As a Lender)
MORGAN GUARANTY TRUST CO. OF NEW YORK AS
ATTORNEY-IN FACT FOR THE REVOLVING
COMMITMENT VEHICLE CORPORATION
By /s/ David Weintrob
-------------------------------
Name: David Weintrob
Title: Vice President
BBL International (U.K.) Limited
(As a Lender)
By /s/ G.R.M. Walker
-------------------------------
Name: G.R.M. Walker
Title: Authorised Signatory
By /s/ C.F. Wright
-------------------------------
Name: C.F. Wright
Title: Authorised Signatory
The undersigned hereby agrees to be bound by the Amended and Restated
Credit Agreement annexed to this Amendment Agreement.
DEN DANSKE BANK AKTIESELSKAB
(As a Lender)
By /s/ Daniel F. Lenzo
-------------------------------
Name: Daniel F. Lenzo
Title: Vice President
By /s/ John A. O'Neill
-------------------------------
Name: John A. O'Neill
Title: Vice President
The undersigned Lender hereby executes this Amendment Agreement
evidencing its approval of (a) the Amended and Restated Credit Agreement, and
(b) the substitution of a new bank to replace the undersigned Lender in the
Amended and Restated Credit Agreement. By executing this Amendment Agreement,
the Administrative Agent and the Borrowers acknowledge that the Commitment of
the undersigned Lender is hereby terminated.
BANCA COMMERCIALE ITALIANA
Los Angeles Foreign Branch (As a Lender)
By /s/ C. Dougherty
-------------------------------
Name: C. Dougherty
Title: Vice President
By /s/ J. Dickerhof
-------------------------------
Name: J. Dickerhof
Title: Vice President
Annex A
U.S. $321,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
(Short Term Facility)
Dated as of August 18, 2000
Among
CSC ENTERPRISES
as Borrower
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and
COMPUTER SCIENCES CORPORATION
as Borrower and Guarantor
-------------------------
and
THE BANKS NAMED HEREIN
as Lenders
----------
and
CITICORP USA, INC.
as Administrative Agent
-----------------------
and
SALOMON SMITH BARNEY INC.
as Arranger
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..................... 1
Section 1.01 Certain Defined Terms................................ 1
Section 1.02 Computation of Time Periods..........................12
Section 1.03 Accounting Terms.....................................12
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES....................12
Section 2.01 The A Advances.......................................12
Section 2.02 Making the A Advances................................13
Section 2.03 The B Advances.......................................15
Section 2.04 Fees.................................................18
Section 2.05 Termination and Reduction of the Commitments.........19
Section 2.06 Repayment and Prepayment of A Advances...............19
Section 2.07 Interest on A Advances...............................21
Section 2.08 Interest Rate Determination..........................21
Section 2.09 Voluntary Conversion or Continuation of A Advances...22
Section 2.10 Increased Costs......................................22
Section 2.11 Payments and Computations............................23
Section 2.12 Taxes................................................24
Section 2.13 Sharing of Payments, Etc.............................26
Section 2.14 Evidence of Debt.....................................26
Section 2.15 Use of Proceeds......................................27
Section 2.16 Extension of the Commitment Termination Date.........27
Section 2.17 Substitution of Lenders..............................28
Section 2.18 Increased Commitments; Additional Lenders............28
Section 2.19 Term Loan............................................29
Section 2.20 Special Purpose Funding Vehicles.....................30
ARTICLE III CONDITIONS OF LENDING................................30
Section 3.01 Condition Precedent to Effective Date................30
Section 3.02 Conditions Precedent to Each A Borrowing.............31
Section 3.03 Conditions Precedent to Each B Borrowing.............32
ARTICLE IV REPRESENTATIONS AND WARRANTIES.......................32
Section 4.01 Representations and Warranties of the Partnership....32
Section 4.02 Representations and Warranties of the Corporation....35
ARTICLE V COVENANTS............................................38
Section 5.01 Affirmative Covenants of the Partnership.............38
Section 5.02 Negative Covenants of the Partnership................41
Section 5.03 Affirmative Covenants of the Corporation.............43
Section 5.04 Negative Covenants of the Corporation................46
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VI EVENTS OF DEFAULT 49
Section 6.01 Events of Default....................................49
ARTICLE VII THE AGENT............................................52
Section 7.01 Authorization and Action.............................52
Section 7.02 Agent's Reliance, Etc................................52
Section 7.03 CUSA and Affiliates..................................52
Section 7.04 Lender Credit Decision...............................53
Section 7.05 Indemnification......................................53
Section 7.06 Successor Agent......................................53
ARTICLE VIII THE GUARANTY.........................................54
Section 8.01 Guaranty of the Guarantied Obligations...............54
Section 8.02 Liability of the Guarantor...........................54
Section 8.03 Waivers by the Guarantor.............................56
Section 8.04 Payment by the Guarantor.............................57
Section 8.05 Subrogation..........................................57
Section 8.06 Subordination of Other Obligations...................57
Section 8.07 Expenses.............................................58
Section 8.08 Continuing Guaranty; Termination of Guaranty.........58
Section 8.09 Authority of the Guarantor or the Partnership........58
Section 8.10 Financial Condition of the Partnership...............58
Section 8.11 Rights Cumulative....................................58
Section 8.12 Bankruptcy; Post-Petition Interest;
Reinstatement of the Guaranty......................59
Section 8.13 Notice of Events.....................................59
Section 8.14 Set Off..............................................60
Section 8.15 Determination of the Guarantied Obligations..........60
Section 8.16 Successors and Assigns...............................60
Section 8.17 Further Assurances...................................60
ARTICLE IX MISCELLANEOUS........................................61
Section 9.01 Amendments, Etc......................................61
Section 9.02 Notices, Etc.........................................61
Section 9.03 No Waiver; Remedies..................................62
Section 9.04 Costs, Expenses and Indemnification..................62
Section 9.05 Right of Set-off.....................................63
Section 9.06 Binding Effect.......................................63
Section 9.07 Assignments and Participations.......................63
Section 9.08 Governing Law........................................65
Section 9.09 Execution in Counterparts............................65
Section 9.10 Consent to Jurisdiction; Waiver of Immunities........66
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TABLE OF CONTENTS
(continued)
Page
Section 9.11 Waiver of Trial by Jury..............................66
Section 9.12 Limited Liability of Merel Corporation...............66
Section 9.13 Survival of Warranties...............................67
Section 9.14 Severability.........................................67
Section 9.15 Headings.............................................67
SCHEDULES
Schedule I List of Applicable Lending Offices
Schedule II Property of Partnership
Schedule III Property of Corporation
Schedule IV Lenders' Commitments
EXHIBITS
Exhibit A-1 Form of Notice of A Borrowing
Exhibit A-2 Form of Notice of B Borrowing
Exhibit B Form of Assignment and Acceptance
Exhibit C-1 Form of Opinion of Gibson, Dunn & Crutcher, Counsel for the
Borrower
Exhibit C-2 Form of Opinion of Hayward D. Fisk, Esq., Counsel for the
Borrower
Exhibit D Form of Extension Request
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AMENDED AND RESTATED CREDIT AGREEMENT
(Short Term Facility)
Dated as of August 18, 2000
This Amended and Restated Credit Agreement is entered into as of
August 18, 2000, among CSC Enterprises, a Delaware general partnership (the
"Partnership"), as a Borrower, Computer Sciences Corporation, a Nevada
corporation (the "Corporation"), as a Borrower and as the Guarantor, the
financial institutions (the "Banks") listed on the signature pages hereof, and
Citicorp USA, Inc. ("CUSA"), as administrative agent (the "Agent") for the
Lenders hereunder.
WHEREAS, the Corporation, the Partnership, the Banks, and the Agent
entered into a Credit Agreement (Short Term Facility) as of August 20, 1999
(the "Existing Agreement");
WHEREAS, certain Lenders entered into an Agreement Increasing
Commitments dated June 26, 2000, whereby the Commitment of such Lenders and
the aggregate Commitments were increased pursuant to Section 2.18 of the
Existing Agreement; and
WHEREAS, the Lenders, the Corporation, the Partnership and the Agent
have entered into an Amendment Agreement dated as of August 18, 2000 pursuant
to which the Existing Agreement has been amended and restated ("Amended and
Restated Credit Agreement").
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Corporation, the Partnership,
the Lenders and the Agent agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms.
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As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both
the singular and plural forms of the terms defined):
"A Advance" means an advance by a Lender to a Borrower as part of an
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A Borrowing (and after the making of the Term Loans, the Term Loans), and
refers to a Base Rate Advance or a Eurodollar Rate Advance, each of which
shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of A Advances of the same
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Type made on the same day to the same Borrower pursuant to the same Notice of
A Borrowing by each of the Lenders pursuant to Section 2.01.
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"Adjusted Eurodollar Rate" means, for any Interest Period for each
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Eurodollar Rate Advance comprising part of the same A Borrowing, an interest
rate per annum equal to the rate per annum obtained by dividing (a) the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum,
if such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the respective
Reference Bank's (or, in the case of Citibank, CUSA's) Eurodollar Rate Advance
comprising part of such A Borrowing and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage. The Adjusted Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
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Article II.
"Advance" means an A Advance or a B Advance.
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"Affiliate" means, as to any Person, any other Person that, directly
---------
or 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.
"Amended and Restated Credit Agreement" has the meaning set forth in
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the recitals.
"Agreement" means this Amended and Restated Credit Agreement, as
---------
this Amended and Restated Credit Agreement may be amended, supplemented or
otherwise modified from time to time.
"Amended and Restated Credit Agreement Effective Date" means
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August 18, 2000.
"Applicable Lending Office" means, with respect to each Lender, such
-------------------------
Lender's Domestic Lending Office in the case of a Base Rate Advance, and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance
and, in the case of a B Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office with respect to such B
Advance.
"Applicable Margin" means, for any period for which any interest
-----------------
payment 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.
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"Assignment and Acceptance" means an assignment and acceptance
-------------------------
entered 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
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B Borrowing resulting from the auction bidding procedure described in Section
2.03.
"B Borrowing" means a borrowing consisting of B Advances made on the
-----------
same day to the same Borrower pursuant to the same Notice of B Borrowing by
each of the Lenders whose offer to make one or more B Advances as part of such
borrowing has been accepted by a Borrower under the auction bidding procedure
described in Section 2.03.
"B Reduction" has the meaning specified in Section 2.01.
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"Base Rate" means, for any period, a fluctuating interest rate per
---------
annum 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 three-week period of the daily net annual assessment rates estimated by
Citibank for determining the current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation for insuring three-month deposits in
the United States; or
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an A Advance which bears interest as
-----------------
provided in Section 2.07(a).
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"Borrower" means (i) the Partnership, or (ii) the Corporation, in
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the Corporation's capacity as a borrower hereunder, and "Borrowers" means both
---------
of them, together.
"Borrowing" means an A Borrowing or a B Borrowing.
---------
"Business Day" means a day of the year on which banks are not
------------
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Capital Expenditures" means, for any period, the expenditures
--------------------
(whether 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
-------------
property by that Person as lessee which would, in conformity with GAAP, be
required to be accounted for as a capital lease on the balance sheet of that
Person.
"CBI" has the meaning specified in Section 4.01(n).
---
"Citibank" means Citibank, N.A.
--------
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Commercial Paper" means commercial paper issued by the Partnership
----------------
or the Corporation from time to time.
"Commitment" has the meaning specified in Section 2.01.
----------
"Commitment Termination Date" means, with respect to any Lender,
---------------------------
August 17, 2001, the date that occurs 364 days from the Amended and Restated
Credit Agreement Effective Date; provided, however, that, subject to the
--------
provisions of Section 2.16, if any Lender has consented to an Extension
Request with regard to the then existing Commitment Termination Date, the then
existing Commitment Termination Date as to such Lender shall be automatically
extended for 364 days from the then existing Termination Date.
"Consolidated Gross Cash Flow" means, for any period, (i) the sum of
----------------------------
(A) net income, plus (B) taxes on income, plus (C) net interest expense, plus
---- ---- ----
(D) depreciation expense, plus (E) amortization expense of goodwill, financing
----
costs and other intangibles, plus (F) extraordinary losses, plus (G) other
---- ----
non-cash charges to the extent deducted from net income, minus (ii) the sum of
-----
(A) extraordinary gains and (B) the aggregate amount of Capital Expenditures,
all of the foregoing shall be on a consolidated basis for the Corporation and
its Subsidiaries.
4
<PAGE>
"Consolidated Interest Expense" means, for any period, consolidated
-----------------------------
total net interest expense in respect of Debt of the Corporation and its
Subsidiaries.
"Consolidated Total Capitalization" means, as of any date of
---------------------------------
determination, the sum of (a) consolidated stockholders' equity of the
Corporation and its Subsidiaries determined in accordance with GAAP and (b)
Consolidated Total Debt.
"Consolidated Total Debt" means, as of any date of determination,
-----------------------
all Debt of the Corporation and its Subsidiaries on a consolidated basis.
"Convert," "Conversion" and "Converted" each refers to a conversion
------- ---------- ---------
of A Advances of one Type into A Advances of another Type pursuant to Section
2.09.
"Corporation" means Computer Sciences Corporation, a Nevada
-----------
corporation, in its capacity as a Borrower hereunder, in its capacity as the
Guarantor hereunder or both, as the context may require.
"CSC Partners" means those partners of the Partnership which are
------------
wholly-owned direct or indirect Subsidiaries of the Corporation.
"Daily Margin" means, for any date of determination, the interest
------------
rate per annum set forth in the table below that corresponds to (i) the Level
applicable to such date of determination and (ii) the Utilization Ratio
applicable to such date of determination:
Daily Margin when Daily Margin when Daily Margin when
Utilization Ratio Utilization Ratio is greater Utilization Ratio
is equal to or than 0.35:1.00 but less is greater than
less than 0.35:1.00 than or equal to 0.65:1.00 0.65:1.00
------------------- ---------------------------- -----------------
Level 1 0.145% 0.195% 0.32%
Level 2 0.17% 0.22% 0.345%
Level 3 0.25% 0.35% 0.60%
Level 4 0.325% 0.425% 0.675%
For purposes of this definition, (a) "Utilization Ratio" means, as
of any date of determination, the ratio of (1) the aggregate outstanding
principal amount of all Advances as of such date to (2) the aggregate amount
of all Commitments in effect as of such date (whether used or unused and
without giving effect to any B Reduction), (b) if any change in the Rating
established by S&P or Moody's shall result in a change in the Level, the
change in the Daily Margin shall be effective as of the date on which such
rating change is publicly announced (in the case of a public rating) or is
disclosed to the Corporation (in
5
<PAGE>
the case of a private rating), (c) if Ratings are unavailable from both S&P
and Moody's 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 of the Corporation for such day
established by another rating agency reasonably acceptable to the Majority
Lenders) and (d) if a Rating is not available from S&P or Moody's (but not
both) for any reason for any day, then the applicable Level shall be set by
reference to the Rating of S&P or Moody's that is available for such day.
"Debt" means, with respect to any Person, (i) indebtedness of such
----
Person for borrowed money, (ii) obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) obligations of such
Person to pay the deferred purchase price of property or services, excluding
trade payables or accrued expenses arising in the ordinary course of business,
(iv) obligations of such Person as lessee under Capital Leases, and (v)
obligations of such Person under direct or indirect guaranties in respect of,
and obligations of such Person (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to in clauses
(i) through (iv) above, provided that "Debt" shall not include borrowings
--------
against the cash surrender value of life insurance policies covering employees
of Borrowers or their Affiliates and owned by the Corporation or the
Partnership so long as (x) recourse for such borrowings is limited to such
policies and the proceeds thereof and (y) any value assigned to such policies
on the consolidated financial statements of the Corporation and its
Subsidiaries is net of the amount of such borrowings.
"Domestic Lending Office" means, with respect to any Lender, the
-----------------------
office 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 August 20, 1999.
--------------
"Eligible Assignee" means any financial institution or entity
-----------------
engaged 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 be
--------
unreasonably withheld, and provided further that no such approval shall be
-------- -------
required in the case of an assignment by a Bank to an Affiliate of such Bank.
"Environmental Law" means any and all statutes, laws, regulations,
-----------------
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.
6
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974,
-----
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV of
---------------
ERISA is a member of either Borrower's controlled group, or under common
control with such Borrower, within the meaning of Section 414 of the Code and
the regulations promulgated and rulings issued thereunder.
"ERISA Event" means (i) the occurrence of a reportable event, within
-----------
the meaning of Section 4043 of ERISA, unless the 30-day notice requirement
with respect thereto has been waived by the PBGC; (ii) the provision by the
administrator of any Pension Plan of a notice of intent to terminate such
Pension Plan pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (iii) the cessation of operations at a facility in the circumstances
described in Section 4062(e) of ERISA; (iv) the withdrawal by either Borrower
or an ERISA Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (v) the failure by either Borrower or any ERISA Affiliate to make a
payment to a Pension Plan required under Section 302(f)(1) of ERISA, which
Section imposes a lien for failure to make required payments; (vi) the
adoption of an amendment to a Pension Plan requiring the provision of security
to such Pension Plan, pursuant to Section 307 of ERISA; or (vii) the
institution by the PBGC of proceedings to terminate a Pension Plan, pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition which,
in the reasonable judgment of either Borrower, might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, a Pension Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
------------------------
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
-------------------------
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may from
time to time specify to the Borrowers and the Agent.
"Eurodollar Rate Advance" means an A Advance which bears interest as
-----------------------
provided in Section 2.07(b).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
----------------------------------
Period for any Eurodollar Rate Advance means the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
7
<PAGE>
maximum reserve requirements (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Lender with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
-----------------
"Existing Credit Agreement" means the Credit Agreement dated as of
-------------------------
September 15, 1995, among the Partnership, the Corporation, the lenders party
thereto and CUSA, as agent for such lenders, as amended.
"Federal Funds Rate" means, for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by it.
"GAAP" means generally accepted accounting principles set forth in
----
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guarantied Obligations" has the meaning assigned to that term in
----------------------
Section 8.01.
"Guarantor" means the Corporation, in its capacity as the guarantor
---------
hereunder.
"Guaranty" shall have the meaning set forth in Section 8.01.
--------
"Insufficiency" means, with respect to any Pension Plan, the amount,
-------------
if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18)
of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same A Borrowing, the period commencing on the date of such
Eurodollar Rate Advance, or on the date of continuation of such Advance as a
Eurodollar Rate Advance upon expiration of successive Interest Periods
applicable thereto, or on the date of Conversion of a Base Rate Advance into a
Eurodollar Rate Advance, and ending on the last day of the period selected by
the applicable Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be one, two, three or six months, as the
applicable Borrower may select in the Notice of Borrowing or the Notice of
Conversion/Continuation for such Advance; provided, however, that:
-------- -------
8
<PAGE>
(i) a Borrower may not select any Interest Period which
ends after the earliest Commitment Termination Date of any Lender then in
effect (or after the Term Loan Maturity Date if such Advances comprise all or
a part of the Term Loan);
(ii) Interest Periods commencing on the same date for A
Advances comprising part of the same A Borrowing shall be of the same
duration; and
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business
Day, provided, that if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business Day.
"Lenders" means the Banks listed on the signature pages hereof and
-------
each 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
-----
be.
"Level 1" means that, as of any date of determination, the higher of
-------
the Ratings is equal to or better than A+ or A1, as applicable, as of such
date of determination.
"Level 2" means that, as of any date of determination, the higher of
-------
the Ratings is equal to A or A2, as applicable, as of such date of
determination.
"Level 3" means that, as of any date of determination, the higher of
-------
the Ratings is equal to A- or A3, as applicable, as of such date of
determination.
"Level 4" means that, as of any date of determination, the higher of
-------
the Ratings is equal to or lower than BBB+ or Baa1, as applicable, as of such
date of determination, or the only Rating is a private rating and the
Corporation will not authorize the applicable rating agency to make such
Rating available to the Agent and the Lenders.
"Lien" means any lien, mortgage, pledge, security interest, charge
----
or encumbrance of any kind (including any conditional sale or other title
retention agreement and any lease in the nature thereof).
"Long-Term Debt" means senior, unsecured, long term debt securities
--------------
of the Corporation.
"Majority Lenders" means at any time Lenders holding greater than
----------------
50% 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
greater than 50% of the Commitments (provided that, for purposes hereof,
--------
neither a Borrower, nor any of its Affiliates, if a Lender, shall be included
in (i) the Lenders holding such amount of the A
9
<PAGE>
Advances or having such amount of the Commitments or (ii) determining the
aggregate unpaid principal amount of the A Advances or the total Commitments)
"Managing Partner" means CSC Enterprises, Inc., a Nevada corporation
----------------
and an indirect wholly-owned Subsidiary of the Corporation.
"Moody's" means Moody's Investors Service, Inc.
-------
"Multiemployer Plan" means a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA to which either Borrower or any ERISA Affiliate of
such Borrower is making, or is obligated to make, contributions or has within
any of the preceding six plan years been obligated to make or accrue
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
----------------------
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of either
Borrower or an ERISA Affiliate and at least one Person other than such
Borrower and its ERISA Affiliates or (ii) was so maintained and in respect of
which either Borrower or an ERISA Affiliate could have liability under Section
4063, 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Non-Hostile Acquisition" means an acquisition (whether by purchase
-----------------------
of capital stock or assets, merger or otherwise) which has been approved by
resolutions of the Board of Directors of the Person being acquired or by
similar action if the Person is not a corporation and as to which such
approval has not been withdrawn.
"Notice of A Borrowing" has the meaning specified in Section
---------------------
2.02(a).
"Notice of a B Borrowing" has the meaning specified in Section
-----------------------
2.03(a).
"Notice of Borrowing" means the Notice of A Borrowing or the Notice
-------------------
of B Borrowing or both, as the context may require.
"Notice of Conversion/Continuation" has the meaning specified in
---------------------------------
Section 2.09.
"Partnership" means CSC Enterprises, a Delaware general partnership,
-----------
in its capacity as a Borrower hereunder.
"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.
10
<PAGE>
"Person" means an individual, partnership, corporation, business
------
trust, joint stock company, trust, unincorporated association, joint venture
or other entity, or a government or any political subdivision or agency
thereof.
"Potential Event of Default" means a condition or event which, after
--------------------------
notice or lapse of time or both, would constitute an Event of Default if that
condition or event were not cured or removed within any applicable grace or
cure period.
"Rating" means a public or private rating established by S&P or
------
Moody's with respect to the Long-Term Debt or, if there is no Long-Term Debt
outstanding, a private rating established by S&P or Moody's with respect to
the Corporation.
"Reference Banks" means Citibank, Morgan Guaranty Trust Company of
---------------
New York and Bank One, NA.
"Register" has the meaning specified in Section 9.07(c).
--------
"S&P" means Standard & Poor's Ratings Group.
---
"SEC" means the Securities and Exchange Commission and any successor
---
agency.
"Significant Subsidiary" means, at any time, any Subsidiary of the
----------------------
Partnership or of the Corporation which accounts for more than 5% of
consolidated total assets or 5% of consolidated revenue of the Corporation and
its Subsidiaries determined in accordance with GAAP.
"Single Employer Plan" means a single employer plan, as defined in
--------------------
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of either
Borrower or any ERISA Affiliate and no Person other than such Borrower and its
ERISA Affiliates or (ii) was so maintained and in respect of which either
Borrower or an ERISA Affiliate could have liability under Section 4062 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, association,
----------
partnership or other business entity of which at least 50% of the total voting
power of shares of stock or other securities entitled to vote in the election
of directors, managers or trustees thereof is 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.
"Term Loans" shall have the meaning assigned to that term in
----------
Section 2.19.
11
<PAGE>
"Term Loan Maturity Date" shall be the date occurring one year after
-----------------------
the date on which the Term Loan is made.
"Type" means, with reference to an A Advance, a Base Rate Advance or
----
a Eurodollar Rate Advance.
"Withdrawal Liability" has the meaning given such term under Part I
--------------------
of Subtitle E of Title IV of ERISA.
Section 1.02 Computation of Time Periods.
---------------------------
In this Agreement in the computation of periods of time
from a specified date to a later specified date, the word "from" means "from
and including" and the words "to" and "until" each means "to but excluding".
Section 1.03 Accounting Terms.
----------------
All accounting terms not specifically defined herein
shall be construed in accordance with GAAP consistent with those applied in
the preparation of the financial statements referred to in Section 4.01(e) or
Section 4.02(e), as the case may be. All computations determining compliance
with financial covenants or terms, including definitions used therein, shall
be prepared in accordance with generally accepted accounting principles in
effect at the time of the preparation of, and in conformity with those used to
prepare, the historical financial statements delivered to the Lenders pursuant
to Section 4.01(e) or Section 4.02(e), as the case may be. If at any time the
computations for determining compliance with financial covenants or provisions
relating thereto utilize generally accepted accounting principles different
than those then being utilized in the financial statements being delivered to
the Lenders, such financial statements shall be accompanied by a
reconciliation statement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The A Advances.
--------------
Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make A Advances to either Borrower from
time to time on any Business Day during the period from the Effective Date
until the Termination Date of such Lender in an aggregate amount (together
with the aggregate amount of A Advances made to the other Borrower that is
outstanding at such time) not to exceed at any time outstanding the amount set
opposite such Lender's name on the Schedule IV hereto or, if such Lender has
entered into any Assignment and Acceptance, set forth for such Lender in the
Register maintained by the Agent pursuant to Section 9.07(c), as such amount
may be reduced pursuant to Section 2.05 (such Lender's "Commitment"); provided
--------
that the aggregate amount of the Commitments of the Lenders shall be deemed
used from time to time to the extent of the aggregate amount of the B Advances
then outstanding and at any time of determination, such deemed use of the
aggregate amount of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments in effect at such time of
determination (such deemed use of the aggregate amount of the Commitments
being a "B Reduction"). Each A Borrowing shall be in an aggregate amount not
less than $5,000,000 or an integral multiple of $1,000,000 in 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
12
<PAGE>
limits of each Lender's Commitment, each Borrower may from time to time
borrow, prepay pursuant to Section 2.06(d) and reborrow under this Section
2.01.
Section 2.02 Making the A Advances.
---------------------
(a) Each A Borrowing shall be made on notice, given not later than
(x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing
consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on
the third Business Day prior to the date of a proposed A Borrowing consisting
of Eurodollar Rate Advances, by the Borrower requesting the proposed A
Borrowing to the Agent, which shall give to each Lender prompt notice thereof
by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice
of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately
in writing, in substantially the form of Exhibit A-1 hereto, specifying
therein the requested (i) date of such A Borrowing, (ii) Type of A Advances
comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and
(iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the
initial Interest Period for each such A Advance. A Borrower may, subject to
the conditions herein provided, borrow more than one A Borrowing on any
Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the
case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M.
(New York City time) in the case of a Borrowing consisting of Eurodollar Rate
Advances, in each case on the date of such A Borrowing, make available for the
account of its Applicable Lending Office to the Agent at its address referred
to in Section 9.02, in same day funds, such Lender's ratable portion of such A
Borrowing. After the Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Agent will make such
funds available to the Borrower requesting the proposed A Borrowing at the
Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for
any A Borrowing or with respect to the Conversion or continuance of any A
Borrowing if the aggregate amount of such A Borrowing or such Conversion or
continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods
relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or that any central bank or other governmental
authority asserts that it is unlawful, for such Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances hereunder, the
Commitment of such Lender to make Eurodollar Rate Advances or to Convert all
or any portion of Base Rate Advances shall forthwith be suspended until the
Agent shall notify the Borrowers that such Lender has determined that the
circumstances causing such suspension no longer exist and such Lender's then
outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to
the extent that such affected Eurodollar Rate Advances become Base Rate
Advances, all payments of principal that
13
<PAGE>
would have been otherwise applied to such Eurodollar Rate Advances shall be
applied instead to such Lender's Base Rate Advances; provided that if Majority
Lenders are subject to the same illegality or assertion of illegality, then
the right of a Borrower to select Eurodollar Rate Advances for such A
Borrowing or any subsequent A Borrowing or to Convert all or any portion of
Base Rate Advances shall forthwith be suspended until the Agent shall notify
the Borrowers that the circumstances causing such suspension no longer exist,
and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely
information to the Agent for determining the Adjusted Eurodollar Rate for any
Eurodollar Rate Advances comprising any requested A Borrowing, the right of a
Borrower to select Eurodollar Rate Advances for such A Borrowing or any
subsequent A Borrowing shall be suspended until the Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist, and each A Advance comprising such A Borrowing shall be made as
a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business
Day before the date of any requested A Borrowing, notify the Agent that the
Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A
Borrowing will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances
for such A Borrowing or any subsequent A Borrowing shall be suspended until
the Agent shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist, and each A Advance comprising such A
Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on
the Borrower requesting the proposed A Borrowing. In the case of any A
Borrowing which the related Notice of A Borrowing specifies is to be comprised
of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the A Advance to be made by such Lender as
part of such A Borrowing or by reason of the termination of hedging or other
similar arrangements, in each case when such A Advance is not made on such
date, including without limitation, as a result of any failure to fulfill on
or before the date specified in such Notice of A Borrowing for such A
Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any A Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such A Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such A Borrowing in accordance with subsection (a) of this Section 2.02 and
the Agent may, in reliance upon such assumption, make available to the
Borrower requesting the proposed A Borrowing on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Agent, such Lender and such Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is
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<PAGE>
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, (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
15
<PAGE>
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 Lender in its sole discretion, by notifying the Agent (which shall give
prompt notice thereof to such Borrower), before 11:00 A.M. (New York City
time) (A) on the date of such proposed B Borrowing, in the case of a Notice of
B Borrowing delivered pursuant to clause (A) of paragraph (i) above and (B)
three Business Days before the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant to clause (B) of paragraph (i)
above, of the minimum amount and maximum amount of each B Advance which such
Lender would be willing to make as part of such proposed B Borrowing (which
amounts may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to such B
Advance; provided that if the Agent in its capacity as a Lender shall, in its
sole discretion, elect to make any such offer, it shall notify such Borrower
of such offer before 10:00 A.M. (New York City time) on the date on which
notice of such election is to be given to the Agent by the other Lenders. If
any Lender shall elect not to make such an offer, such Lender shall so notify
the Agent, before 10:00 A.M. (New York City time) on the date on which notice
of such election is to be given to the Agent by the other Lenders, and such
Lender shall not be obligated to, and shall not, make any B Advance as part of
such B Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any B Advance as part of
such proposed B Borrowing.
(iii) Such Borrower shall, in turn, (A) before 12:00 noon
(New York City time) on the date of such proposed B Borrowing, in the case of
a Notice of B Borrowing delivered pursuant to clause (A) of paragraph (i)
above and (B) before 1:00 P.M. (New York City time) three Business Days before
the date of such proposed B Borrowing, in the case of a Notice of B Borrowing
delivered pursuant to clause (B) of paragraph (i) above, either
(x) cancel such B Borrowing by giving the Agent notice to that
effect, or
(y) accept one or more of the offers made by any Lender or Lenders
pursuant to paragraph (ii) above (which acceptance shall be irrevocable) in
its sole discretion, by giving notice to the Agent of the amount of each B
Advance (which amount shall be equal to or greater than the minimum amount,
and equal to or less than the maximum amount, notified to such Borrower by the
Agent on behalf of such Lender for such B Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such B Borrowing (provided that
the aggregate amount of such B Borrowing shall not exceed the amount specified
on the Notice of B Borrowing delivered by such Borrower pursuant to paragraph
(i) above), and reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Agent notice to that effect; provided that
--------
acceptance of offers may only be made on the basis of ascending rates for B
Borrowings of the same type and
16
<PAGE>
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 Lender's
portion of such B Borrowing, in same day funds. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by the Agent
of such funds, the Agent will make such funds available to such Borrower at
the Agent's aforesaid address. Promptly after each B Borrowing, the Agent
will notify each Lender of the amount of the B Borrowing, the consequent B
Reduction and the dates upon which such B Reduction commenced and will
terminate.
(vi) Each Borrower agrees to pay to the Agent for the
Agent's account an auction fee in an amount agreed to in a separate letter
agreement between the Borrowers and the Agent for each Notice of B Borrowing
delivered by such Borrower to the Agent pursuant to this Section 2.03(a),
whether or not a B Borrowing is made pursuant thereto.
(b) Each B Borrowing shall be in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each B Borrowing, the Borrowers and each Lender shall
be in compliance with the limitations set forth in the proviso to the first
sentence of subsection (a) above.
17
<PAGE>
(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 (a)(ii)
above, payable on the interest payment date or dates specified by such
Borrower for such B Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above; provided that any principal amount of any
--------
B Advance which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to (A) until the stated maturity date of such B
Advance, the greater of (x) 2% per annum above the Base Rate in effect from
time to time and (y) 2% above the stated rate per annum of such B Advance, and
(B) after the stated maturity of such B Advance, 2% per annum above the Base
Rate in effect from time to time.
(f) Subject to the obligations of the Guarantor under the Guaranty,
neither Borrower shall have any obligation to repay to any Lender any B
Advance made by such Lender to the other Borrower or to pay any interest on
any B Advance made by such Lender to the other Borrower.
Section 2.04 Fees.
----
(a) Facility Fees. The Borrowers jointly and severally agree to
-------------
pay to the Agent for the account of each Lender a facility fee on the amount
of such Lender's Commitment (or if no Commitment is in effect, Advances),
whether used or unused and without giving effect to any B Reduction, from the
date hereof in the case of each Bank and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender in the case
of each other Lender until the Termination Date of such Lender, payable in
arrears on the last day of each March, June, September and December during the
term of such Lender's Commitment, commencing September 30, 2000, and on the
Termination Date of such Lender, in an amount equal to the product of (i) the
average daily amount of such Lender's Commitment (whether used or unused and
without giving effect to any B Reduction) in effect during the period for
which
18
<PAGE>
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 0.05% per annum with
respect to each day during such period that the higher of the Ratings was
Level 1, (b) a rate of 0.08% per annum with respect to each day during such
period that the higher of such Ratings was Level 2, (c) a rate of 0.10% per
annum with respect to each day during such period that the higher of such
Ratings was Level 3 and (d) a rate of 0.125% per annum with respect to each
day during such period that the higher of such Ratings was Level 4. If any
change in the Rating shall result in a change in the Level, the change in the
facility fee shall be effective as of the date on which such rating change is
publicly announced (in the case of a public rating) or is disclosed to the
Corporation (in the case of a private rating). If Ratings are unavailable
from both S&P or Moody's 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 or the Corporation for such day established by
another rating agency reasonably acceptable to the Majority Lenders). If no
Rating is available from S&P or Moody's (but not both) for any reason for any
day, then the applicable Level shall be set by reference to the Rating of S&P
or Moody's that is available for such day.
(b) Agents' Fees. The Borrowers agree to pay to the Agent the fees
------------
payable pursuant to the fee letter dated as of August 16, 1999 between the
Borrowers and CUSA, in the amounts and at the times specified in such letter.
Section 2.05 Termination and Reduction of the Commitments.
--------------------------------------------
(a) Mandatory Termination. In the event that a mandatory
---------------------
prepayment in full of the A Advances is required by Section 2.06(b), the
Commitments of the Lenders shall immediately terminate.
(b) Optional Reductions. The Borrowers shall have the right, upon
-------------------
at least four Business Days' notice to the Agent by both Borrowers, to
terminate in whole or reduce ratably in part the unused portions of the
respective Commitments of the Lenders, provided that the aggregate amount of
--------
the Commitments of the Lenders shall not be reduced to an amount which is less
than the aggregate principal amount of the Advances then outstanding, and
provided, further, that each partial reduction shall be in the aggregate
-------- -------
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
Section 2.06 Repayment and Prepayment of A Advances.
--------------------------------------
(a) Mandatory Repayment on Termination Date. Each Borrower shall
---------------------------------------
repay the outstanding principal amount of each A Advance made by each Lender
(other than A Advances comprising a Term Loan) to such Borrower on the
Termination Date of such Lender.
(b) Mandatory Prepayment in Certain Events. If any one of the
--------------------------------------
following events shall occur:
(i) Representatives of CSC Partners shall cease to
constitute a majority of the Partnership's Partnership Committee (or similar
body which may replace
19
<PAGE>
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
to the extent necessary so that the sum of the aggregate principal amount of
the Advances then outstanding does not exceed the aggregate amount of the
Commitments of the Lenders then in effect (computed without regard to any B
Reduction).
(d) Voluntary Prepayments of A Borrowings. Neither Borrower shall
-------------------------------------
have any right to prepay any principal amount of any A Advances other than as
provided in this subsection (d). Each Borrower may, upon at least one
Business Day's notice to the Agent in the case of Base Rate Advances and at
least three Business Days' notice to the Agent in the case of Eurodollar Rate
Advances stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amounts of the Advances made to such Borrower comprising
part of the same A Borrowing in whole or ratably in part; provided, however,
-------- -------
that (x) each partial prepayment shall be in an aggregate principal amount not
less than $5,000,000 and integral multiples of $1,000,000 in excess thereof
and (y) in the case of any such prepayment of any Eurodollar Rate Advance,
such Borrower shall pay all accrued interest to the date of such prepayment on
the portion of such
20
<PAGE>
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.
(f) Payment of Term Loan. The Borrowers shall repay the Term Loans
--------------------
together with all accrued and unpaid interest thereon on the Term Loan
Maturity Date and may prepay the Term Loans in accordance with Section 2.06(d)
above. Amounts paid in respect of the Term Loans may not be reborrowed.
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, 2000, and
on the Termination Date of the applicable Lender; provided that any amount of
--------
principal, interest, fees and other amounts payable under this Agreement
(including, without limitation, the principal amount of Base Rate Advances,
but excluding the principal amount of Eurodollar Rate Advances and B Advances)
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate per annum equal at
all times to 2% per annum above the Base Rate in effect from time to time.
(b) Eurodollar Rate Advances. If such A Advance is a Eurodollar
------------------------
Rate Advance, a rate per annum equal at all times during the Interest Period
for such A Advance to the sum of the Adjusted Eurodollar Rate for such
Interest Period plus the Applicable Margin, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a duration of more
than three months, on the day which occurs during such Interest Period three
months from the first day of such Interest Period; provided that any principal
--------
amount of any Eurodollar Rate Advance which is not paid when due (whether at
stated maturity, by acceleration or otherwise) shall bear interest from the
date on which such amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to (A) during the Interest
Period applicable to such Eurodollar Rate Advance, the greater of (x) 2% per
annum above the Base Rate in effect from time to time and (y) 2% per annum
above the rate per annum required to be paid on such amount immediately prior
to the date on which such amount became due and (B) after the expiration of
such Interest Period, 2% per annum above the Base Rate in effect from time to
time.
Section 2.08 Interest Rate Determination.
---------------------------
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<PAGE>
(a) Each Reference Bank agrees to furnish to the Agent timely
information for the purpose of determining each Adjusted Eurodollar Rate. If
any one or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining any such interest
rate, the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks, subject to Section
2.02(b)(iv).
(b) The Agent shall give prompt notice to the Borrowers and the
Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.07(a) or 2.07(b), and the applicable rate, if any, furnished by
each Reference Bank for the purpose of determining the applicable interest
rate under Section 2.07(b).
Section 2.09 Voluntary Conversion or Continuation of A Advances.
--------------------------------------------------
(a) Each Borrower may on any Business Day, upon notice given to the
Agent not later than 12:00 noon (New York City time) on the third Business Day
prior to the date of the proposed Conversion or continuance (a "Notice of
Conversion/Continuation") and subject to the provisions of Section 2.02(b),
(1) Convert all Advances of one Type comprising the same A Borrowing made to
such Borrower into A Advances of another Type and (2) upon the expiration of
any Interest Period applicable to A Advances which are Eurodollar Rate
Advances made to such Borrower, continue all (or, subject to Section 2.02(b),
any portion of) such A Advances as Eurodollar Rate Advances and the succeeding
Interest Period(s) of such continued A Advances 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
22
<PAGE>
law or regulation or (ii) the compliance with any guideline or request from
any central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances
made to either Borrower, then such Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A reasonably detailed
certificate as to the amount and manner of calculation of such increased cost,
submitted to such Borrower and the Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Agent), the Borrowers
shall immediately pay, jointly and severally, to the Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A reasonably detailed certificate as to such
amounts and the manner of calculation thereof submitted to the Borrowers and
the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
(c) If a Lender shall change its Applicable Lending Office, such
Lender shall not be entitled to receive any greater payment under Sections
2.10 and 2.12 than the amount such Lender would have been entitled to receive
if it had not changed its Applicable Lending Office, unless such change was
made at the request of a Borrower or at a time when the circumstances giving
rise to such greater payment did not exist.
Section 2.11 Payments and Computations.
-------------------------
(a) Each Borrower shall make each payment hereunder not later than
1:00 P.M. (New York City time) on the day when due in U.S. dollars to the
Agent at its address referred to in Section 9.02 in same day funds. Subject
to the immediately succeeding sentence, the Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable pursuant to
Section 2.03, 2.10 or 2.12 or, to the extent the Termination Date is not the
same for all Lenders, pursuant to Section 2.06(a)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon receipt of
principal or interest paid after an Event of Default and an acceleration or a
deemed acceleration of amounts due hereunder, the Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest ratably in accordance with each Lender's outstanding A
Advances and B Advances (other than amounts
23
<PAGE>
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 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)
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<PAGE>
United States income taxes (including withholding taxes with respect to
payments hereunder) payable with respect to payments hereunder under laws
(including without limitation any statute, treaty, ruling, determination or
regulation) in effect on the date hereof in the case of each Bank and on the
effective date of the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If a Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Lender or the Agent (as
the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrowers jointly and severally agree to pay
any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (to the extent specifically attributable
to Borrowings made by such Borrower) (including, without limitation, any Taxes
or Other Taxes (to the extent specifically attributable to Borrowings made by
such Borrower) imposed by any jurisdiction on amounts payable under this
Section 2.12) and the Borrowers jointly and severally will indemnify each
Lender and the Agent for the full amount of Taxes or Other Taxes (to the
extent not 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 W-8BEN or W-
8ECI, as appropriate, or any successor form prescribed by the Internal Revenue
Service, to establish that such Lender is not subject to United States
withholding tax with respect to any payments to such Lender of interest
payable under this Agreement. If the form provided by a Lender at the time
such Lender first
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<PAGE>
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 Lender were the direct
creditor of the applicable Borrower in the amount of such participation.
Section 2.14 Evidence of Debt.
----------------
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower
to such Lender resulting from each Advance owing to such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder. Each Borrower agrees that upon notice by
any Lender to such Borrower (with a copy of such notice to the Agent) to the
effect that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the A Advances or the B Advances owing to,
or to be made by, such Lender, such Borrower shall
27
<PAGE>
promptly execute and deliver to such Lender promissory notes or other evidence
of such indebtedness, in form and substance reasonably satisfactory to such
Borrower and such Lender, payable to the order of such Lender in a principal
amount equal, in the case of the A Advances, to the aggregate principal amount
of the Commitment of such Lender and, in the case of the B Advances, to the
outstanding principal amount of B Advances of such Lender; provided, however,
-------- -------
that the execution and delivery of such promissory note or other evidence of
indebtedness shall not be a condition precedent to the making of any Advance
under this Agreement.
(b) The Register maintained by the Agent pursuant to Section 9.07(c)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date, amount and
tenor, as applicable, of each Borrowing, the Borrower that received the
proceeds of such Borrowing, the Type of Advances comprising such Borrowing and
the Interest Period applicable thereto, (ii) the terms of each Assignment and
Acceptance delivered to and accepted by it, (iii) the amount of any principal
or interest due and payable or to become due and payable from each Borrower to
each Lender hereunder, and (iv) the amount of any sum received by the Agent
from each Borrower hereunder and each Lender's share thereof.
(c) The entries made in the Register shall be conclusive and
binding for all purposes, absent manifest error.
Section 2.15 Use of Proceeds.
---------------
(a) Advances shall be used by the Borrowers for Commercial Paper
backup, for Non-Hostile Acquisitions and for general corporate purposes.
(b) No portion of the proceeds of any Advances under this Agreement
shall be used by either Borrower or any of its Subsidiaries in any manner
which might cause the Advances or the application of such proceeds to violate,
or require any Lender to make any filing or take any other action under,
Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Securities Exchange Act of 1934, in each case as in effect on the date or
dates of such Advances and such use of proceeds.
Section 2.16 Extension of the Commitment Termination Date.
--------------------------------------------
The Borrowers may, not earlier than 45 days but not
later than 30 days prior to the then current Commitment Termination Date (the
"Current Termination Date"), propose to extend the Commitment Termination Date
for all Lenders for an additional 364 days by delivering to the Agent a copy
of an extension request signed by both Borrowers (an "Extension Request") in
substantially the form of Exhibit D hereto. The Agent shall promptly notify
each Lender of its receipt of such Extension Request. Not earlier than 30
days but not later than 15 days (the "Determination Date") prior to the
Current Termination Date, each Lender shall notify the Agent and the Borrowers
of its willingness or unwillingness to extend its Commitment Termination Date
hereunder. Any Lender that shall fail to so notify the Agent and the
Borrowers on or prior to the Determination Date shall be deemed to have
declined to so extend. In the event that, on or prior to the Determination
Date, Lenders representing more than 50% of the aggregate amount of
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<PAGE>
the Commitments of all Lenders then in effect shall consent to such extension,
the Agent shall so advise the Lenders and the Borrowers, and, subject to
execution of documentation evidencing such extension and consents, the
Commitment Termination Date of each Lender (each a "Consenting Lender") that
has consented on or prior to the Determination Date to so extend shall be
extended by 364 days. Thereafter, (i) for each Consenting Lender, the term
"Commitment Termination Date" as used herein and in any promissory note
executed and delivered by the Borrowers pursuant to Section 2.14 hereof, shall
at all times refer to such date, unless it is later extended pursuant to this
Section 2.16, and (ii) for each Lender that either has declined on or prior to
the Determination Date to so extend or is deemed to have so declined, the term
"Commitment Termination Date" shall at all times refer to the date which was
the Commitment Termination Date of such Lender immediately prior to the
delivery to the Agent of such Extension Request. In the event that, as of the
Determination Date, the Consenting Lenders represent 50% or less of the
aggregate amount of the Commitments of all Lenders then in effect, the Agent
shall so advise the Lenders and the Borrowers, and none of the Lenders'
Commitment Termination Dates shall be extended and each Lender's Commitment
Termination Date shall continue to be the date which was the Commitment
Termination Date of such Lender immediately prior to the delivery to the Agent
of such Extension Request.
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
--------
(i) compensation under Section 2.10 for any costs incurred by it prior to its
replacement, (ii) payment of all A Advances of such Lender then outstanding
and all interest and fees accrued to the date of such payment, and (iii) if
any Eurodollar Rate Advances of such Lender are then outstanding, any
reimbursement which would be payable under Section 9.04(b) in connection with
a prepayment of such Eurodollar Rate Advances on such date.
Section 2.18 Increased Commitments; Additional Lenders.
-----------------------------------------
(a) No more than once per 364 day period from the Amended and
Restated Credit Agreement Effective Date, the Borrowers may, upon at least
thirty (30) days notice to the Agent (which shall promptly provide a copy of
such notice to the Lenders), propose to increase the aggregate amount of the
Commitments in increments of $25,000,000, the total amount of all such
increases not to exceed $250,000,000 (the amount of any such increase, the
"Increased Commitments"); provided that at the time of and after giving effect
--------
to any increase in the Commitments (and the delivery of the applicable
commitment increase notice shall constitute a representation and warranty by
the Partnership and the Corporation that on the effective date of such
increase such statements are true) (i) the Corporation's Long-Term Debt
ratings from Moody's and S&P are better than or equal to Baa2 or BBB,
respectively; (ii) the representations
28
<PAGE>
and warranties of the Partnership and the Corporation contained in Article IV
are correct on and as of the date of such increase, before and after giving
effect to such increase, as though made on and as of such date, except to the
extent that any such representation or warranty expressly relates only to an
earlier date, in which case they were correct as of such earlier date; (iii)
no Event of Default or Potential Event of Default exists and is continuing ;
(iv) on the date of such increase, (x) there shall be no A Advances
outstanding or all Interest Periods shall have ended and (y) all accrued and
unpaid interest on the A Advances and all accrued and unpaid Facility Fees
shall have been paid in full and (v) after any such increase, no Lender's
Commitment shall exceed 50% of the aggregate amount of the Commitments. Each
Lender party to this Agreement at such time shall have the right (but no
obligation), for a period of fifteen (15) days following receipt of such
notice, to elect by notice to the Borrower and the Administrative Agent to
increase its Commitment by a principal amount which bears the same ratio to
the Increased Commitments as its then Commitment bears to the aggregate
Commitments then existing.
(b) If any Lender party to this Agreement shall not elect to
increase its Commitment pursuant to subsection (a) of this Section, the
Borrowers may designate another lender or other lenders (which may be, but
need not be, one or more of the existing Lenders) which at the time agree to
(i) in the case of any such lender that is an existing Lender, increase its
Commitment and (ii) in the case of any other such lender (an "Additional
Lender"), become a party to this Agreement. The sum of the increases in the
Commitments of the existing Lenders pursuant to this subsection (b) plus the
Commitments of the Additional Lenders shall not in the aggregate exceed the
unsubscribed amount of the Increased Commitments.
(c) An increase in the aggregate amount of the Commitments pursuant
to this Section 2.18 shall become effective upon the receipt by the Agent of
an agreement in form and substance satisfactory to the Agent signed by the
Borrowers, by each Additional Lender and by each other Lender whose Commitment
is to be increased, setting forth the new Commitments of such Lenders and
setting forth the agreement of each Additional Lender to become a party to
this Agreement and to be bound by all the terms and provisions hereof,
together with such evidence of appropriate corporate authorization on the part
of the Borrowers with respect to the Increased Commitments and such opinions
of counsel for the Borrowers with respect to the Increased Commitments as the
Agent may reasonably request.
Section 2.19 Term Loan.
---------
(a) Each Lender severally agrees on the terms and conditions set
forth in this Agreement to make A Advances to the Borrowers (upon request of
the Borrowers pursuant to this Agreement) on the Termination Date in an amount
up to the sum of (i) the outstanding principal amount of the A Advances made
by such Lender and outstanding as of the opening of business on the
Termination Date plus (ii) the amount available to be borrowed as A Advances
from such Lender as of the opening of business on the Termination Date. The
aggregate of such Committed Advances is collectively called the "Term Loans".
(b) The Term Loans shall be made upon the irrevocable written
notice (including notice via facsimile confirmed immediately by a telephone
call) of the Borrowers in the form of a Notice of Borrowing (which notice must
be received by the Administrative Agent not later than 11:00 a.m. New York
City time not less than three Business Days prior to the
29
<PAGE>
Termination Date), specifying: (A) the amount of the Term Loan to each
Borrower which shall be in a principal amount not more than the sum of (i) the
aggregate principal amount of the A Advances made to such Borrower which will
be outstanding as of the opening of business on the Termination Date, plus
(ii) the amount available to be borrowed from the Lenders by such Borrower as
of the opening of business on the Termination Date; (B) whether the Term Loans
are to be comprised of Base Rate Advances or Eurodollar Advances, and the
amounts of such A Advances to each Borrower; and (C) the Interest Period
applicable to the A Advances included in such notice; provided, that, the Term
--------
Loans shall be made only if the Borrowers, in accordance with Section 2.16,
shall have requested that the then current Termination Date be extended; and,
provided further that if the Term Loans are made no Commitment Termination
-------- -------
Date of any Lender shall be extended.
The proceeds of the Term Loans, to the extent required, will be used to pay
the principal amount of the Advances outstanding as of the opening of business
on the Termination Date.
Section 2.20 Special Purpose Funding Vehicles.
--------------------------------
Notwithstanding anything to the contrary contained
herein, any Lender, (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC") the option to fund all or any part of any Loan that
such Granting Lender would otherwise be obligated to fund pursuant to this
Agreement; provided the (i) nothing herein shall constitute a commitment by
--------
an SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option
or otherwise fails to fund all or any part of such Loan, the Granting Lender
shall be obligated to fund such Loan pursuant to the terms hereof. The
funding of a Loan by an SPC hereunder shall utilize the Revolving Credit
Commitment of the Granting Lender to the same extent, and as if, such Loan
were funded by such Granting Lender. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or payment under this Agreement for
which a Lender would otherwise be liable for so long as, and to the extent,
the Granting Lender provides such indemnity or makes such payment.
Notwithstanding anything to the contrary contained in this Agreement, any SPC
may disclose on a confidential basis any non-public information relating to
its funding of Loans to any rating agency, commercial paper dealer or provider
of any surety or guarantee to such SPC. This Section may not be amended
without the prior written consent of each Granting Lender, all or any part of
whose outstanding Loans is being funded by an SPC at the time of such
amendment.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01 Condition Precedent to Effective Date.
-------------------------------------
The effectiveness of this Agreement and the obligation
of each Lender to make its initial Advance hereunder were subject to the
condition precedent that the Agent receive on or before the Effective Date the
following, each (other than items (f) and (i)) dated the Effective Date, and
each in form and substance satisfactory to the Agent and in sufficient copies
for each Lender:
(a) A certificate of an authorized officer of the Managing Partner
to the effect that the copy of the Partnership's Partnership Agreement
delivered to the Agent (and available
30
<PAGE>
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 certifying the names and true signatures
of the officers of the Managing Partner authorized to sign this Agreement and
the other documents to be delivered by the Partnership hereunder.
(d) Certified copies of the resolutions of the Board of Directors
of the Corporation approving this Agreement, and of all documents evidencing
other necessary corporate action and governmental approvals, if any, with
respect to this Agreement;
(e) A certificate of the Secretary or an Assistant Secretary of the
Corporation certifying the names and true signatures of the officers of the
Corporation authorized to sign this Agreement and the other documents to be
delivered by the Corporation hereunder;
(f) Certified copies of Corporation's and the Managing Partner's
Certificate of Incorporation, together with good standing certificates from
the states of their respective incorporation and their respective principal
places of business, each to be dated a recent date prior to the Effective
Date;
(g) Copies of the Corporation's and the Managing Partner's Bylaws,
certified as of the Effective Date by their respective Secretary or an
Assistant Secretary;
(h) A favorable opinion of 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;
(i) Financial statements of the Corporation and its Subsidiaries
specified in Section 4.02(e);
(j) Evidence satisfactory to the Agent of (i) the absence of any
indebtedness of the Partnership or the Corporation under the Existing Credit
Agreement (including borrowings and accrued interest), (ii) the payment of
fees payable, if any, by the Partnership or the Corporation under the Existing
Credit Agreement and (iii) consent to the termination of the Existing Credit
Agreement on the Effective Date by any party thereto which is not a party
hereto.
Section 3.02 Conditions Precedent to Each A Borrowing.
----------------------------------------
The obligation of each Lender to make an A Advance on
the occasion of each A Borrowing (including the initial A Borrowing) shall be
subject to the further conditions precedent that (i) Agent shall have received
a Notice of A Borrowing with respect thereto in accordance with Section 2.02
and (ii) on the date of such A Borrowing the following statements shall be
true (and each of the giving of
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<PAGE>
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 by the Partnership
and the Corporation that on the date of such B Borrowing such statements are
true):
(a) The representations and warranties of the Partnership and the
Corporation contained in Article IV are correct on and as of the date of such
B Borrowing, before and after giving effect to such B Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date,
except to the extent that any such representation or warranty expressly
relates only to an earlier date, in which case they were correct as of such
earlier date, and
(b) No event has occurred and is continuing, or would result from
such B Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or a Potential Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Partnership.
-------------------------------------------------
The Partnership represents and warrants as follows:
(a) Due Organization, etc. The Partnership is a general
---------------------
partnership duly organized and validly existing under the laws of the
jurisdiction indicated at the beginning of this Agreement.
32
<PAGE>
(b) Due Authorization, etc. The execution, delivery and
----------------------
performance by the Partnership of this Agreement are within the Partnership's
partnership powers, have been duly authorized by all necessary partnership
action, and do not contravene (i) the Partnership's Partnership Agreement or
(ii) applicable law or any material contractual restriction binding on or
affecting the Partnership.
(c) Governmental Consent. No authorization or approval or other
--------------------
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Partnership of this Agreement.
(d) Validity. This Agreement is the legal, valid and binding
--------
obligation of the Partnership enforceable against the Partnership in
accordance with its terms subject to the effect of applicable bankruptcy,
insolvency, arrangement, moratorium and other similar laws affecting
creditors' rights generally and to the application of general principles of
equity.
(e) Condition of the Partnership. The balance sheet of the
----------------------------
Partnership and its Subsidiaries as at March 31, 2000, 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
Amended and Restated Credit Agreement 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 March 31, 2000, except for any transfer of assets of the
Partnership to Subsidiaries of the Corporation of which the Corporation owns
80% or more of the voting stock.
(f) Litigation. (i) There is no pending action or proceeding
----------
against the Partnership or any of its Subsidiaries before any court,
governmental agency or arbitrator, and (ii) to the knowledge of the Managing
Partner of the Partnership, there is no pending or threatened action or
proceeding affecting the Partnership or any of its Subsidiaries before any
court, governmental agency or arbitrator, which in either case would
reasonably be expected to materially adversely affect the financial condition
or operations of the Partnership and its Subsidiaries, taken as a whole, or
which purports to affect the legality, validity or enforceability of this
Agreement.
(g) Margin Regulations. The Partnership is not engaged in the
------------------
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock in any manner that
violates, or would cause a violation of, Regulation T, Regulation U or
Regulation X.
(h) Payment of Taxes. The Partnership and each of its Subsidiaries
----------------
have filed or caused to be filed all material tax returns (federal, state,
local and foreign) required to be filed and paid all material amounts of taxes
shown thereon to be due, including interest and penalties, except for such
taxes as are being contested in good faith and by proper proceedings and with
33
<PAGE>
respect to which appropriate reserves are being maintained by the Partnership
or any such Subsidiary, as the case may be.
(i) Governmental Regulation. The Partnership is not subject to
-----------------------
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940,
each as amended, or to any Federal or state statute or regulation limiting its
ability to incur indebtedness for money borrowed. No Subsidiary of the
Partnership is subject to any regulation that would limit the ability of the
Partnership to enter into or perform its obligations under this Agreement.
(j) ERISA.
(i) No ERISA Event which might result in liability (other
than for premiums payable under Title IV of ERISA) has occurred or is
reasonably expected to occur with respect to any Pension Plan.
(ii) Schedule B (Actuarial Information) to the most recently
completed annual report (Form 5500 Series) for each Pension Plan, copies of
which have been filed with the Internal Revenue Service and furnished to the
Agent, is complete and, to the best knowledge of the Partnership, accurate,
and since the date of such Schedule B there has been no material adverse
change in the funding status of any such Pension Plan.
(iii) Neither the Partnership nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Partnership, is reasonably expected
to incur, any Withdrawal Liability to any Multiemployer Plan.
(iv) Neither the Partnership nor any ERISA Affiliate has
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of Title
IV of ERISA, and, to the best knowledge of the Partnership, no Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated within
the meaning of Title IV of ERISA.
(k) Disclosure. No representation or warranty of the Partnership
----------
contained in this Agreement (including any Schedule furnished in connection
herewith) contains any untrue statement of a material fact. No other
document, certificate or written statement furnished to the Agent or any
Lender by or on behalf of the Partnership for use in connection with the
transactions contemplated by this Agreement, taken as a whole with other
documents, certificates or written statements furnished contemporaneously
therewith, contains any untrue statement of fact or omits to state a material
fact (known to the Partnership in the case of any documents not furnished by
it) necessary in order to make the statements contained therein not misleading
in light of the circumstances under which the same were made.
(l) Insurance. The Partnership and its Subsidiaries (i) have in
---------
full force insurance coverage of their respective properties, assets and
business (including casualty, general liability, products liability and
business interruption insurance) that is (A) no less protective in any
material respect than the insurance the Partnership and its Subsidiaries have
carried in accordance with their past practices or (B) prudent given the
nature of the business of the
34
<PAGE>
Partnership and its Subsidiaries and the prevailing practice among companies
similarly situated or (ii) maintain a plan or plans of self-insurance to such
extent and covering such risks as is usual for companies of comparable size
engaged in the same or similar business which plan or plans provide for, among
other things, adequate reserves for the risks being self-insured.
(m) Environmental Matters. (i) The Partnership and each of its
---------------------
Subsidiaries is in compliance in all material respects with all Environmental
Laws the non-compliance with which could reasonably be expected to have a
material adverse effect on the financial condition or operations of the
Partnership and its Subsidiaries, taken as a whole, and (ii) there has been no
"release or threatened release of a hazardous substance" (as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et seq.) or any other release, emission or
-- ---
discharge into the environment of any hazardous or toxic substance, pollutant
or other materials from the Partnership's or its Subsidiaries' property other
than as permitted under applicable Environmental Law and other than those
which would not have a material adverse effect on the financial condition or
operations of the Partnership and its Subsidiaries, taken as a whole. Other
than disposals for which the Partnership has been indemnified in full, all
"hazardous waste" (as defined by the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901 et seq. (1976) and the regulations thereunder, 40 CFR
-- ---
Part 261 ("RCRA")) generated at the Partnership's or any Subsidiaries'
properties have in the past been and shall continue to be disposed of at sites
which maintain valid permits under RCRA and any applicable state or local
Environmental Law.
(n) Year 2000 Compliance. The Partnership has developed and
--------------------
budgeted for a comprehensive program to address the "year 2000 problem" (that
is, the inability of computers and computer software, as well as embedded
microchips in non-computing devices, to properly perform date-sensitive
functions with respect to certain dates prior to and after December 31, 1999).
The Partnership has, to date, implemented that program substantially in
accordance with its timetable and budget. The Partnership reasonably believes
that the year 2000 problem will not result in a material adverse change in the
business, condition (financial or otherwise), operations or properties of the
Partnership and its Subsidiaries, taken as a whole. The Partnership has
developed adequate contingency plans to ensure uninterrupted and unimpaired
business operation in the event of a failure of its own or a third party's
systems or equipment due to the year 2000 problem.
Section 4.02 Representations and Warranties of the Corporation.
-------------------------------------------------
The Corporation, in its capacity as a Borrower,
represents and warrants as follows, and the Corporation, in its capacity as
the Guarantor, in order to induce Lenders and Agent to accept the Guaranty and
to enter into this Agreement and to make the Advances hereunder, represents
and warrants as follows:
(a) Due Organization, etc. The Corporation is a corporation duly
---------------------
organized, validly existing and in good standing under the laws of the State
of Nevada. The Corporation is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions which require such
qualification except to the extent that failure to so qualify would not have a
material adverse effect on the Corporation. Each Subsidiary of the
Corporation is duly organized and validly existing under the laws of the
jurisdiction of its incorporation or formation. Each such Subsidiary is duly
qualified to do business in all other jurisdictions which require such
35
<PAGE>
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 March 31, 2000, 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
Amended and Restated Credit Agreement 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 March 31, 2000.
(f) Litigation. (i) There is no pending action or proceeding
----------
against the Corporation or any of its Subsidiaries before any court,
governmental agency or arbitrator, and (ii) to the knowledge of the
Corporation, there is no pending or threatened action or proceeding affecting
the Corporation or any of its Subsidiaries before any court, governmental
agency or arbitrator, which in either case would reasonably be expected to
materially adversely affect the financial condition or operations of the
Corporation and its Subsidiaries, taken as a whole, or which purports to
affect the legality, validity or enforceability of this Agreement.
(g) Margin Regulations. The Corporation is not engaged in the
------------------
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock in any manner that violates
or would cause a violation of Regulation T, Regulation U or Regulation X.
(h) Payment of Taxes. The Corporation and each of its Subsidiaries
----------------
have filed or caused to be filed all material tax returns (federal, state,
local and foreign) required to be filed and paid all material amounts of taxes
shown thereon to be due, including interest and penalties, except for such
taxes as are being contested in good faith and by proper proceedings and with
36
<PAGE>
respect to which appropriate reserves are being maintained by the Corporation
or any such Subsidiary, as the case may be.
(i) Governmental Regulation. The Corporation is not subject to
-----------------------
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940,
each as amended, or to any Federal or state statute or regulation limiting its
ability to incur indebtedness for money borrowed. No Subsidiary of the
Corporation is subject to any regulation that would limit the ability of the
Partnership or the Corporation to enter into or perform their respective
obligations under this Agreement.
(j) ERISA.
(i) No ERISA Event which might result in liability (other
than for premiums payable under Title IV of ERISA) has occurred or is
reasonably expected to occur with respect to any Pension Plan.
(ii) Schedule B (Actuarial Information) to the most recently
completed annual report (Form 5500 Series) for each Pension Plan, copies of
which have been filed with the Internal Revenue Service and furnished to the
Agent, is complete and, to the best knowledge of the Corporation, accurate,
and since the date of such Schedule B there has been no material adverse
change in the funding status of any such Pension Plan.
(iii) Neither the Corporation nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Corporation, is reasonably expected
to incur, any Withdrawal Liability to any Multiemployer Plan.
(iv) Neither the Corporation nor any ERISA Affiliate has
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of Title
IV of ERISA, and, to the best knowledge of the Corporation, no Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated within
the meaning of Title IV of ERISA.
(k) Disclosure. No representation or warranty of the Corporation
----------
contained in this Agreement (including any Schedule furnished in connection
herewith) contains any untrue statement of a material fact. No other
document, certificate or written statement furnished to the Agent or any
Lender by or on behalf of the Corporation for use in connection with the
transactions contemplated in this Agreement, taken as a whole with other
documents, certificates or written statements furnished contemporaneously
therewith, contains any untrue statement of fact or omits to state a material
fact (known to the Corporation in the case of any documents not furnished by
it) necessary in order to make the statements contained therein not misleading
in light of the circumstances under which the same were made.
(l) Insurance. The Corporation and its Subsidiaries (i) have in
---------
full force insurance coverage of their respective properties, assets and
business (including casualty, general liability, products liability and
business interruption insurance) that is (A) no less protective in any
material respect than the insurance the Corporation and its Subsidiaries have
carried in
37
<PAGE>
accordance with their past practices or (B) prudent given the nature of the
business of the Corporation and its Subsidiaries and the prevailing practice
among companies similarly situated or (ii) maintain a plan or plans of self-
insurance to such extent and covering such risks as is usual for companies of
comparable size engaged in the same or similar business which plan or plans
provide for, among other things, adequate reserves for the risks being self-
insured.
(m) Environmental Matters. (i) The Corporation and each of its
---------------------
Subsidiaries is in compliance in all material respects with all Environmental
Laws the non-compliance with which could reasonably be expected to have a
material adverse effect on the financial condition or operations of the
Corporation and its Subsidiaries, taken as a whole, and (ii) there has been no
"release or threatened release of a hazardous substance" (as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et seq.) or any other release, emission or
-- ---
discharge into the environment of any hazardous or toxic substance, pollutant
or other materials from the Corporation's or its Subsidiaries' property other
than as permitted under applicable Environmental Law and other than those
which would not have a material adverse effect on the financial condition or
operations of the Corporation and its Subsidiaries, taken as a whole. Other
than disposals for which the Corporation has been indemnified in full, all
"hazardous waste" (as defined by the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901 et seq. (1976) and the regulations thereunder, 40 CFR
Part 261 ("RCRA")) generated at the Corporation's or any Subsidiaries'
properties have in the past been and shall continue to be disposed of at sites
which maintain valid permits under RCRA and any applicable state or local
Environmental Law.
(n) Relationship between Corporation and Partnership; Approval of
-------------------------------------------------------------
Terms. (i) The Corporation is the owner, directly or indirectly (through its
-----
Subsidiaries of which it owns at least 80% of the voting stock), of more than
50% of the partnership interest of the Partnership; (ii) Lenders' agreement to
make the Advances to the Partnership is of substantial and material benefit to
the Corporation; and (iii) the Corporation has reviewed and approved copies of
this Agreement and is fully informed of the remedies Lenders may pursue upon
the occurrence of an Event of Default.
(o) Year 2000 Compliance. The Corporation has developed and
--------------------
budgeted for a comprehensive program to address the "year 2000 problem" (that
is, the inability of computers and computer software, as well as embedded
microchips in non-computing devices, to properly perform date-sensitive
functions with respect to certain dates prior to and after December 31, 1999).
The Corporation has, to date, implemented that program substantially in
accordance with its timetable and budget. The Corporation reasonably believes
that the year 2000 problem will not result in a material adverse change in the
business, condition (financial or otherwise), operations or properties of the
Corporation and its Subsidiaries, taken as a whole. The Corporation has
developed contingency plans to address a failure of its own or a third party's
systems or equipment due to the year 2000 problem.
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Partnership.
----------------------------------------
The Partnership covenants and agrees that the
Partnership will, so long as any Advance shall remain unpaid or
38
<PAGE>
any Lender shall have any Commitment hereunder, unless the Majority Lenders
shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
-------------------------
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, (i) complying with all
Environmental Laws and (ii) paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith, except where failure to
so comply would not have a material adverse effect on the business, condition
(financial or otherwise), operations or properties of the Partnership and its
Subsidiaries, taken as a whole.
(b) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as available and in any event within 110 days
after the end of each fiscal year of the Partnership, a copy of the annual
audit report for such year for the Partnership and its Subsidiaries,
containing financial statements (including a consolidated balance sheet,
consolidated statements of income and partners' equity and cash flows of the
Partnership and its Subsidiaries) for such year, accompanied by an opinion of
Deloitte & Touche or other nationally recognized independent public
accountants. The opinion shall be unqualified (as to going concern, scope of
audit and disagreements over the accounting or other treatment of offsets) and
shall state that such consolidated financial statements present fairly the
financial position of the Partnership and its Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years (except as stated therein) and that the examination by such accountants
in connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(ii) together with each delivery of the report of the
Partnership and its Subsidiaries pursuant to subsection (i) above, a
compliance certificate for the year executed by an authorized financial
officer of the Partnership stating that the signer has reviewed the terms of
this Agreement and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions and condition
of the Partnership and its Subsidiaries during the accounting period covered
by such financial statements and that such review has not disclosed the
existence during or at the end of such accounting period, and that the signer
does not have knowledge of the existence as at the date of the compliance
certificate, of any condition or event that constitutes an Event of Default or
Potential Event of Default or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what action
the Partnership has taken, is taking and proposes to take with respect
thereto;
(iii) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each Potential Event of
Default, continuing on the date of such statement, a statement of an
authorized financial officer of the Partnership setting forth details of such
Event of Default or Potential Event of Default and the action which the
Partnership has taken and proposes to take with respect thereto;
39
<PAGE>
(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, (y) the termination of a Multiemployer Plan within the meaning of
Title IV of ERISA or (z) the amount of liability incurred, or expected to be
incurred, by the Partnership or any ERISA Affiliate in connection with any
event described in clause (w), (x) or (y) above;
(ix) promptly after the commencement thereof, notice of all
material actions, suits and proceedings before any court or government
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Partnership or any of its Subsidiaries, of the type
described in Section 4.01(f);
(x) promptly after the occurrence thereof, notice of (A)
any event which makes any of the representations contained in Section 4.01(m)
inaccurate in any material respect or (B) the receipt by the Partnership of
any notice, order, directive or other communication from a governmental
authority alleging violations of or noncompliance with any Environmental Law
which could reasonably be expected to have a material adverse effect on the
financial condition of the Partnership and its Subsidiaries, taken as a whole;
(xi) promptly after any change in any Rating, a notice of
such change, which notice shall specify the new Rating, the date on which such
change was publicly
40
<PAGE>
announced (in the case of a public rating) or disclosed to the Corporation (in
the case of a private rating), and such other information with respect to such
change as any Lender through the Agent may reasonably request; and
(xii) such other information respecting the condition or
operations, financial or otherwise, of the Partnership or any of its
Subsidiaries as any Lender through the Agent may from time to time reasonably
request.
(c) Partnership Existence, Etc. The Partnership will, and will
--------------------------
cause each of its Subsidiaries to, at all times maintain its fundamental
business and preserve and keep in full force and effect its partnership
existence (except as permitted under Section 5.02(b) hereof) and all rights,
franchises and licenses necessary or desirable in the normal conduct of its
business.
(d) Maintenance of Insurance. The Partnership will and will cause
------------------------
each of its Subsidiaries to maintain insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
(i) as are usually insured by companies engaged in similar businesses and (ii)
with responsible and reputable insurance companies. Notwithstanding the
foregoing, the Partnership and its Subsidiaries may maintain a plan or plans
of self-insurance to such extent and covering such risks as is usual for
companies of comparable size engaged in the same or similar business, which
plans shall include, among other things, adequate reserves for the risks that
are self-insured. On request the Partnership will advise the Agent and the
Lenders concerning any such plan or plans for self-insurance.
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;
41
<PAGE>
(iii) attachment, judgment and other similar Liens arising in
connection with legal proceedings, provided that the execution or other
--------
enforcement of such Liens is effectively stayed and the claims secured thereby
are being contested in good faith by appropriate proceedings, and provided
--------
that any such judgment does not constitute an Event of Default;
(iv) Liens on accounts receivable resulting from the sale of
such accounts receivable;
(v) Liens on assets of any Subsidiary of the Partnership
existing at the time such Person becomes a Subsidiary (other than any such
Lien created in contemplation of becoming a Subsidiary);
(vi) purchase money Liens upon or in any property acquired
or held by the Partnership or any Subsidiary in the ordinary course of
business to secure the purchase price of such property or to secure Debt
incurred solely for the purpose of financing the acquisition of such property
(provided that the amount of Debt secured by such Lien does not exceed 100% of
the purchase price of such property and transaction costs relating to such
acquisition) and Liens existing on such property at the time of its
acquisition (other than any such Lien created in contemplation of such
acquisition); and the interest of the lessor thereof in any property that is
subject to a Capital Lease;
(vii) Liens, other than Liens described in clauses (i)
through (vi) and in clause (ix), to secure Debt not in excess of $75,000,000
principal amount at any time outstanding;
(viii) Liens resulting from any extension, renewal or
replacement (or successive extensions, renewals or replacements), in whole or
in part, of any Debt secured by any Lien referred to in clauses (iv), (v) and
(vi) so long as (x) the aggregate principal amount of any such Debt shall not
increase as a result of any such extension, renewal or replacement and (y)
Liens resulting from any such extension, renewal or replacement shall cover
only such property which secured the Debt that is being extended, renewed or
replaced; and
(ix) Liens on any of the properties described in Schedule II
hereto to secure Debt, provided that the amount of such Debt does not exceed
100% of the fair market value of the property encumbered by such Lien at the
time such Debt is incurred.
(b) Restrictions on Fundamental Changes. The Partnership will not,
-----------------------------------
and will not permit any of its Subsidiaries to, merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or a substantial portion of
its assets (whether now owned or hereafter acquired) to any Person (other than
the Corporation or any Subsidiary of the Corporation, so long as the
Corporation, directly or indirectly, owns 80% or more of the voting stock
thereof), or enter into any partnership, joint venture, syndicate, pool or
other combination, unless (a) no Event of Default or Potential Event of
Default has occurred and is continuing or would result therefrom and (b) any
prepayment required under Section 2.06(b) has been made.
42
<PAGE>
(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, rules, regulations and
orders, such compliance to include, without limitation, (i) complying with all
Environmental Laws and (ii) paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith, except where failure to
so comply would not have a material adverse effect on the business, condition
(financial or otherwise), operations or properties of the Corporation and its
Subsidiaries, taken as a whole.
(b) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as available and in any event within 60 days of
the end of each of the first three fiscal quarters of each fiscal year of the
Corporation, a copy of the quarterly report for such quarter for the
Corporation and its Subsidiaries, containing financial statements (including a
consolidated balance sheet, consolidated statements of income and
stockholders' equity and cash flows of the Corporation and its Subsidiaries)
for such quarter;
(ii) as soon as available and in any event within 110 days
after the end of each fiscal year of the Corporation, a copy of the annual
audit report for such year for the Corporation and its Subsidiaries,
containing financial statements (including a consolidated balance sheet,
consolidated statements of income and stockholders' equity
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and cash flows of the Corporation and its Subsidiaries) for such year,
accompanied by an opinion of Deloitte & Touche or other nationally recognized
independent public accountants. The opinion shall be unqualified (as to going
concern, scope of audit and disagreements over the accounting or other
treatment of offsets) and shall state that such consolidated financial
statements present fairly the financial position of the Corporation and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as stated therein) and that the
examination by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
(iii) together with each delivery of the report of the
Corporation and its Subsidiaries pursuant to subsection (i) or subsection (ii)
above, a compliance certificate for the quarter or year, as applicable,
executed by an authorized financial officer of the Corporation (A) stating, in
the case of the financial statements delivered under Section 5.03(b)(i) for
such quarter, that such financial statements fairly present the financial
condition of the Corporation and its Subsidiaries as at the dates indicated
and the results of operations of the Corporation and its Subsidiaries and cash
flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise stated therein), subject to
changes resulting from audit and normal year-end adjustment, (B) stating that
the signer has reviewed the terms of this Agreement and has made, or caused to
be made under his or her supervision, a review in reasonable detail of the
transactions and condition of the Corporation and its Subsidiaries during the
accounting period covered by such financial statements and that such review
has not disclosed the existence during or at the end of such accounting
period, and that the signer does not have knowledge of the existence as at the
date of the compliance certificate, of any condition or event that constitutes
an Event of Default or a Potential Event of Default or, if any such condition
or event existed or exists, specifying the nature and period of existence
thereof and what action the Corporation has taken, is taking and proposes to
take with respect thereto and (C) demonstrating in reasonable detail
compliance during (as required thereunder) and at the end of such accounting
periods with the restrictions contained in Section 5.04(c).
(iv) together with each delivery of the Corporation's annual
report pursuant to subsection (ii) above, a written statement by the
independent public accountants giving the report thereon (so long as delivery
of such statement is not prohibited by AICPA rules) (A) stating that their
audit examination has included a review of the terms of this Agreement as they
relate to accounting matters and (B) stating whether, in connection with their
audit examination, any condition or event that constitutes an Event of Default
or a Potential Event of Default has come to their attention, and if such a
condition or event has come to their attention, specifying the nature and
period of existence thereof; provided, that such accountants shall not be
--------
liable by reason of any failure to obtain knowledge of any such Event of
Default or Potential Event of Default that would not be disclosed in the
course of a reasonable audit examination;
(v) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each Potential Event of
Default, continuing on the date of such statement, a statement of an
authorized financial officer of the Corporation setting forth details of such
Event of Default or Potential Event of Default and the action which the
Corporation has taken and proposes to take with respect thereto;
(vi) promptly after any significant change in accounting
policies or reporting practices, notice and a description in reasonable detail
of such change;
(vii) promptly and in any event within 30 days after the
Corporation or any ERISA Affiliate knows or has reason to know that any ERISA
Event referred to in clause (i) of the definition of ERISA Event with respect
to any Pension Plan has occurred which might result in liability to the PBGC a
statement of the chief accounting officer of the Corporation describing such
ERISA Event and the action, if any, that the Corporation or such ERISA
Affiliate has taken or proposes to take with respect thereto;
(viii) promptly and in any event within 10 days after the
Corporation or any ERISA Affiliate knows or has reason to know that any ERISA
Event (other than an ERISA Event referred to in (v) above) with respect to any
Pension Plan has occurred which might result in liability to the PBGC, a
statement of the chief accounting officer of the Corporation describing such
ERISA Event and the action, if any, that the Corporation or such ERISA
Affiliate has taken or proposes to take with respect thereto;
(ix) promptly and in any event within five Business Days
after receipt thereof by the Corporation or any ERISA Affiliate from the PBGC,
copies of each notice from the PBGC of its intention to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan;
(x) promptly and in any event within seven Business Days
after receipt thereof by the Corporation or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice received by the
Corporation or any ERISA Affiliate concerning (w) the imposition of Withdrawal
Liability by a Multiemployer Plan, (x) the determination that a Multiemployer
Plan is, or is expected to be, in reorganization within the meaning of Title
IV of ERISA, (y) the termination of a Multiemployer Plan within the meaning of
Title IV of ERISA or (z) the amount of liability incurred, or expected to be
incurred, by the Corporation or any ERISA Affiliate in connection with any
event described in clause (w), (x) or (y) above;
(xi) promptly after the sending or filing thereof, copies of
all proxy statements, financial statements and reports that the Corporation or
any of its Subsidiaries sends to its stockholders generally, and copies of all
regular, periodic and special reports, and all registration statements, that
the Corporation or any of its Subsidiaries files with the SEC or any
governmental authority that may be substituted therefor, or with any national
securities exchange;
(xii) promptly after the furnishing thereof, copies of any
statement or report furnished to any other holder of the securities of the
Corporation or any of its
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Subsidiaries pursuant to the terms of any indenture, loan or credit or similar
agreement and not otherwise required to be furnished to the Lenders pursuant
to any other clause of this Section 5.03.
(xiii) promptly after the commencement thereof, notice of all
material actions, suits and proceedings before any court or government
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Corporation or any of its Subsidiaries, of the type
described in Section 4.02(f).
(xiv) promptly after the occurrence thereof, notice of (A)
any event which makes any of the representations contained in Section 4.02(l)
inaccurate in any material respect or (B) the receipt by the Corporation of
any notice, order, directive or other communication from a governmental
authority alleging violations of or noncompliance with any Environmental Law
which could reasonably be expected to have a material adverse effect on the
financial condition of the Corporation and its Subsidiaries, taken as a whole;
(xv) promptly after any change in any Rating, a notice of
such change, which notice shall specify the new Rating, the date on which such
change was publicly announced (in the case of a public rating) or was
disclosed to the Corporation (in the case of a private rating), and such other
information with respect to such change as any Lender through Agent may
reasonably request; and
(xvi) such other information respecting the condition or
operations, financial or otherwise, of the Corporation or any of its
Subsidiaries as any Lender through the Agent may from time to time reasonably
request.
(c) Corporate Existence, Etc. The Corporation will, and will cause
------------------------
each of its material Subsidiaries to, at all times maintain its fundamental
business and preserve and keep in full force and effect its corporate
existence (except as permitted under Section 5.04(b)) and all rights,
franchises and licenses necessary or desirable in the normal conduct of its
business.
(d) Maintenance of Insurance. The Corporation will and will cause
------------------------
each of its Subsidiaries to maintain insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
(i) as are usually insured by companies engaged in similar businesses and (ii)
with responsible and reputable insurance companies or associations.
Notwithstanding the foregoing, the Corporation and its Subsidiaries may
maintain a plan or plans of self-insurance to such extent and covering such
risks as is usual for companies of comparable size engaged in the same or
similar business, which plans shall include, among other things, adequate
reserves for the risks that are self-insured. On request the Corporation will
advise the Agent and the Lenders concerning any such plan or plans for self-
insurance.
(e) Relationship to the Partnership. The Corporation shall keep
-------------------------------
itself informed as to the status of the transactions contemplated or referred
to herein, the Partnership's financial status and its ability to perform its
obligations under this Agreement.
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Section 5.04 Negative Covenants of the Corporation.
-------------------------------------
The Corporation covenants and agrees that, unless and
until all of the Advances shall have been indefeasibly paid in full, the
Commitments of the Lenders shall have terminated and all of the Guarantied
Obligations shall have been indefeasibly paid in full, unless Majority Lenders
shall otherwise consent in writing:
(a) Liens, Etc. The Corporation will not create or suffer to
----------
exist, or permit any of its Subsidiaries to create or suffer to exist, any
Lien, upon or with respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, in each case to secure or provide for the payment
of any Debt of any Person, unless the Corporation's obligations hereunder
shall be secured equally and ratably with, or prior to, any such Debt;
provided however that the foregoing restriction shall not apply to the
-------- -------
following Liens which are permitted:
(i) set-off rights, arising by operation of law or under
any contract entered into in the ordinary course of business, and bankers'
Liens, Liens of carriers, warehousemen, mechanics, workmen, employees,
materialmen and other Liens imposed by law;
(ii) Liens in favor of the United States of America to
secure amounts paid to the Corporation or any of its Subsidiaries as advance
or progress payments under government contracts entered into by it so long as
such Liens cover only (x) special bank accounts into which only such advance
or progress payments are deposited and (y) supplies covered by such government
contracts and material and other property acquired for or allocated to the
performance of such government contracts;
(iii) attachment, judgment and other similar Liens arising in
connection with legal proceedings, provided that the execution or other
enforcement of such Liens is effectively stayed and the claims secured thereby
are being contested in good faith by appropriate proceedings, and provided
that any such judgment does not constitute an Event of Default;
(iv) Liens on accounts receivable resulting from the sale of
such accounts receivable;
(v) Liens on assets of any Subsidiary of the Corporation
existing at the time such Person becomes a Subsidiary (other than any such
Lien created in contemplation of becoming a Subsidiary);
(vi) purchase money Liens upon or in any property acquired
or held by the Corporation or any Subsidiary in the ordinary course of
business to secure the purchase price of such property or to secure Debt
incurred solely for the purpose of financing the acquisition of such property
(provided that the amount of Debt secured by such Lien does not exceed 100% of
the purchase price of such property and transaction costs relating to such
acquisition) and Liens existing on such property at the time of its
acquisition (other than any such Lien created in contemplation of such
acquisition); and the interest of the lessor thereof in any property that is
subject to a Capital Lease;
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(vii) Liens, other than Liens described in clauses (i)
through (vi) and in clause (ix), to secure Debt not in excess of an aggregate
of $75,000,000 principal amount at any time outstanding;
(viii) Liens resulting from any extension, renewal or
replacement (or successive extensions, renewals or replacements), in whole or
in part, of any Debt secured by any Lien referred to in clauses (iv), (v) and
(vi) so long as (x) the aggregate principal amount of any such Debt shall not
increase as a result of any such extension, renewal or replacement and (y)
Liens resulting from any such extension, renewal or replacement shall cover
only such property which secured the Debt that is being extended, renewed or
replaced; and
(ix) Liens on any of the properties described in Schedule
III hereto to secure Debt, provided that the amount of such Debt does not
exceed 100% of the fair market value of the property encumbered by such Lien
at the time such Debt is incurred.
(b) Restrictions on Fundamental Changes. The Corporation will not,
-----------------------------------
and will not permit any of its Subsidiaries to, merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or a substantial portion of
its assets (whether now owned or hereafter acquired) to any Person (other than
the Corporation or any Subsidiary of the Corporation, so long as the
Corporation, directly or indirectly, owns 80% or more of the voting stock
thereof), or enter into any partnership, joint venture, syndicate, pool or
other combination, unless (a) no Event of Default or Potential Event of
Default has occurred and is continuing or would result therefrom and (b) in
the case of any consolidation or merger involving the Corporation either (i)
the Corporation is the surviving entity or (ii) the Person surviving or
resulting from such consolidation or merger shall have assumed the obligations
of the Corporation hereunder in an agreement or instrument reasonably
satisfactory in form and substance to the Agent.
(c) Financial Covenants.
-------------------
(i) Leverage Ratio. The Corporation will not permit at any
--------------
time the ratio of Consolidated Total Debt to Consolidated Total Capitalization
to exceed 0.45 to 1.00.
(ii) Minimum Interest Coverage Ratio. The Corporation will
-------------------------------
not permit the ratio of Consolidated Gross Cash Flow for the four consecutive
fiscal quarters ending on the last day of each fiscal quarter to Consolidated
Interest Expense for such four consecutive fiscal quarters ending on the last
day of each fiscal quarter to be less than 3.50 to 1.00.
(d) Plan Terminations. The Corporation will not, and will not
-----------------
permit any ERISA Affiliate to, terminate any Pension Plan so as to result in
liability of the Corporation or any ERISA Affiliate to the PBGC in excess of
$15,000,000, or permit to exist any occurrence of an event or condition which
reasonably presents a material risk of a termination by the PBGC of any
Pension Plan with respect to which the Corporation or any ERISA Affiliate
would, in the event of such termination, incur liability to the PBGC in excess
of $15,000,000.
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<PAGE>
(e) Employee Benefit Costs and Liabilities. The Corporation will
not, and will not permit any ERISA Affiliate to, create or suffer to exist,
(i) any Insufficiency with respect to a Pension Plan or any Withdrawal
Liability with respect to a Multiemployer Plan if, immediately after giving
effect thereto, such Insufficiencies and Withdrawal Liabilities of all Pension
Plans and Multiemployer Plans, respectively, of the Corporation and its ERISA
Affiliates exceeds $25,000,000 or (ii) except as provided in Section 4980B of
the Code and except as provided under the terms of any employee welfare
benefit plans provided pursuant to the terms of collective bargaining
agreements, any employee benefit plan to provide health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employee of the Corporation or any of its ERISA Affiliate unless the
Corporation and/or any of its ERISA Affiliates are permitted to terminate such
benefits pursuant to the terms of such employee benefit plan.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default.
-----------------
If any of the following events ("Events of Default")
shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable or either Borrower shall fail to pay any
interest on any Advance or any fees or other amounts payable hereunder within
five days of the date due; or
(b) The Guarantor shall fail to pay any Guarantied Obligations when
the same becomes due and payable; or
(c) Any representation or warranty made by the Partnership or the
Corporation herein or by the Partnership (or any of its or the Managing
Partner's officers) or the Corporation in connection with this Agreement shall
prove to have been incorrect in any material respect when made; or
(d) The Partnership shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(c) or 5.02, or (ii) any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if the failure to perform or observe such other term,
covenant or agreement shall remain unremedied for 30 days after the
Partnership obtains knowledge of such breach; or
(e) The Corporation shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.03(c) or 5.04, or (ii) any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if the failure to perform or observe such other term,
covenant or agreement shall remain unremedied for 30 days after the
Corporation obtains knowledge of such breach; or
(f) The Corporation, the Partnership or any of their respective
Subsidiaries shall fail to pay any principal of or premium or interest on any
Debt which is outstanding in a principal amount of at least $35,000,000 in the
aggregate (but excluding Debt arising under this Agreement) of the
Corporation, the Partnership or such Subsidiary (as the case may be), when
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the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment or by a
required prepayment of insurance proceeds or by a required prepayment as a
result of formulas based on asset sales or excess cash flow), redeemed,
purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity
thereof; or
(g) The Corporation, the Partnership or any of their respective
Significant Subsidiaries shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Corporation, the
Partnership or any of their respective Significant Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60 days,
or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Corporation, the
Partnership or any of their respective Significant Subsidiaries shall take any
corporate or partnership action to authorize any of the actions set forth
above in this subsection (g); or
(h) Any judgment or order for the payment of money in excess of
$35,000,000 shall be rendered against the Corporation, the Partnership or any
of their respective Significant Subsidiaries and is not promptly paid by the
Corporation, the Partnership or any of their respective Significant
Subsidiaries and either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) there shall be any period
of 10 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
(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
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Insufficiency of any and all other Pension Plans with respect to which an
ERISA Event shall have occurred and then exist (or in the case of a Pension
Plan with respect to which an ERISA Event described in clause (iii) through
(vi) of the definition of ERISA Event shall have occurred and then exist, the
liability related thereto) is equal to or greater than $15,000,000; or
(ii) Either Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred an
aggregate Withdrawal Liability for all years to such Multiemployer Plan in an
amount that, when aggregated with all other amounts required to be paid to
Multiemployer Plans by such Borrower and its ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$15,000,000; or
(iii) Either Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan
is in reorganization or is being terminated, within the meaning of Title IV or
ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of such Borrower and its ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the plan year of such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $15,000,000; or
(k) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities and Exchange Act of
1934, as amended), directly or indirectly, of securities of the Corporation
(or other securities convertible into such securities) representing 35% or
more of the combined voting power of all securities of the Corporation
entitled to vote in the election of directors, other than securities having
such power only by reason of the happening of a contingency; or
(l) The Corporation or any of its Subsidiaries shall be suspended
or debarred by any governmental entity from entering into any government
contract or government subcontract from otherwise engaging in any business
relating to government contracts or from participation in government non-
procurement programs, and such suspension or debarment could reasonably be
expected to have a material adverse effect on the business, condition
(financial or otherwise), operations or properties of the Corporation and its
Subsidiaries, taken as a whole;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make 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
51
<PAGE>
Partnership or any of their respective Subsidiaries under the Federal
Bankruptcy Code, (A) the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Advances, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrowers.
ARTICLE VII
THE AGENT
Section 7.01 Authorization and Action.
------------------------
Each Lender hereby appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof, together with
such powers as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Advances and other amounts owing hereunder),
the Agent shall not be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the
Majority Lenders, and such instructions shall be binding upon all Lenders;
provided, however, that the Agent shall not be required to take any action
-------- -------
which exposes the Agent to personal liability or which is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by either Borrower pursuant to the terms of
this Agreement.
Section 7.02 Agent's Reliance, Etc.
---------------------
Neither the Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with this Agreement, except for its
or their own gross negligence or willful misconduct. Without limitation of
the generality of the foregoing, the Agent: (i) may treat the payee of any
Advance as the holder thereof until the Agent receives and accepts an
Assignment and Acceptance entered into by the Lender which is the payee of
such Advance, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 9.07; (ii) may consult with legal counsel (including counsel for
the Borrowers), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement; (iv)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement on
the part of the Partnership or the Corporation or to inspect the property
(including the books and records) of the Partnership or the Corporation; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of this Agreement by acting upon any
notice, consent, certificate 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
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<PAGE>
other Lender and may exercise the same as though it were not the Agent; and
the term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include CUSA in its individual capacity. CUSA and its affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, the Borrowers, any of their
respective subsidiaries and any Person who may do business with or own
securities of either Borrower or any such subsidiary, all as if CUSA were not
the Agent and without any duty to account therefor to the Lenders.
Section 7.04 Lender Credit Decision.
----------------------
Each Lender acknowledges that it has, independently and
without reliance upon the Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender
and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement.
Section 7.05 Indemnification.
---------------
The Lenders agree to indemnify the Agent (to the extent
not reimbursed by the Borrowers), ratably according to the respective
principal amounts of the A Advances then held by each of them (or if no A
Advances are at the time outstanding or if any A Advances are held by Persons
which are not Lenders, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by the
Agent in connection with the preparation, execution, delivery, administration,
syndication, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement, to the extent that the
Agent is not reimbursed for such expenses by the Borrowers.
Section 7.06 Successor Agent.
---------------
The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrowers and may be removed at any time
with or without cause by the Majority Lenders. Upon any such resignation or
removal, the Majority Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent 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
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Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article VII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE VIII
THE GUARANTY
Section 8.01 Guaranty of the Guarantied Obligations.
--------------------------------------
The Guarantor hereby irrevocably and unconditionally
guaranties, as primary obligor and not merely as surety, the due and punctual
payment in full of all Guarantied Obligations when and as the same shall
become due, whether at stated maturity, by required prepayment or declaration
of (or in certain circumstances automatic) acceleration (including amounts
that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)). The term
"Guarantied Obligations" is used herein in its most comprehensive sense and
includes:
(a) any and all obligations of the Partnership in respect of notes,
advances, borrowings, loans, debts, interest, fees, costs, expenses
(including, without limitation, legal fees and expenses of counsel),
indemnities and liabilities of whatsoever nature now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or
unliquidated, whether due or not due, arising under or in connection with this
Agreement, including those arising under successive borrowing transactions
under this Agreement which shall either continue such obligations of the
Partnership or from time to time renew them after they have been satisfied;
and
(b) those expenses set forth in Section 8.07 hereof.
This Article VIII, as it may be amended, amended and restated, supplemented or
otherwise modified from time to time, is sometimes referred to herein as the
"Guaranty" or this "Guaranty".
Section 8.02 Liability of the Guarantor.
--------------------------
The Guarantor agrees that its obligations hereunder are
irrevocable, absolute, independent and unconditional and shall not be affected
by any circumstance which constitutes a legal or equitable discharge of a
guarantor or surety other than indefeasible payment in full of the Guarantied
Obligations. In furtherance of the foregoing and without limiting the
generality thereof, the Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) The obligations of the Guarantor hereunder are independent of
the obligations of the Partnership hereunder and the obligations of any other
guarantor of the obligations of the Partnership hereunder, and a separate
action or actions may be brought and prosecuted against the Guarantor whether
or not any action is brought against the Partnership or any of such other
guarantors and whether or not the Partnership is joined in any such action or
actions.
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(c) The Guarantor's payment of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge the
Guarantor's liability for any portion of the Guarantied Obligations which has
not been paid. Without limiting the generality of the foregoing, if Agent is
awarded a judgment in any suit brought to enforce the Guarantor's covenant to
pay a portion of the Guarantied Obligations, such judgment shall not be deemed
to release the Guarantor from its covenant to pay the portion of the
Guarantied Obligations that is not the subject of such suit.
(d) The Agent or any Lender, upon such terms as it deems
appropriate, without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any reduction, limitation,
impairment, discharge or termination of the Guarantor's liability hereunder,
from time to time may (i) renew, extend (whether pursuant to Section 2.16 or
otherwise), accelerate (in accordance with the terms of this Agreement),
increase the rate of interest on, or otherwise change the time, place, manner
or terms of payment of the Guarantied Obligations, (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with
respect to, or substitutions for, the Guarantied Obligations or any agreement
relating thereto and/or subordinate the payment of the same to the payment of
any other obligations; (iii) request and accept other guaranties of the
Guarantied Obligations and take and hold security for the payment of this
Guaranty or the Guarantied Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the Guarantied
Obligations, any other guaranties of the Guarantied Obligations, or any other
obligation of any Person with respect to the Guarantied Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of
Agent or any Lender in respect of this Guaranty or the Guarantied Obligations
and direct the order or manner of sale thereof, or exercise any other right or
remedy that Agent or Lenders, or any of them, may have against any such
security, as Agent in its discretion may determine consistent with this
Agreement and any applicable security agreement, including foreclosure on any
such security pursuant to one or more judicial or non-judicial sales, whether
or not every aspect of any such sale is commercially reasonable, and even
though such action operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of the Guarantor against the
Partnership or any security for the Guarantied Obligations; and (vi) exercise
any other rights available to it hereunder.
(e) This Guaranty and the obligations of the Guarantor hereunder
shall be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than
indefeasible payment in full of the Guarantied Obligations), including without
limitation the occurrence of any of the following, whether or not the
Guarantor shall have had notice or knowledge of any of them: (i) any failure
or omission to assert or enforce or agreement or election not to assert or
enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any
right, power or remedy (whether arising hereunder, at law, in equity or
otherwise) with respect to the Guarantied Obligations or any agreement
relating thereto, or with respect to any other guaranty of or security for the
payment of the Guarantied Obligations; (ii) any rescission, waiver, amendment
or modification of, or any consent to departure from, any of the terms or
provisions (including without limitation provisions relating to events of
default) of this Agreement, or any agreement or instrument executed pursuant
thereto, or of any other guaranty
55
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or security for the Guarantied Obligations, in each case whether or not in
accordance with the terms of this Agreement or any agreement relating to such
other guaranty or security; (iii) the Guarantied Obligations, or any agreement
relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments received from
any source (other than payments received from the proceeds of any security for
the Guarantied Obligations, except to the extent such security also serves as
collateral for indebtedness other than the Guarantied Obligations) to the
payment of indebtedness other than the Guarantied Obligations, even though
Agent or Lenders, or any of them, might have elected to apply such payment to
any part or all of the Guarantied Obligations; (v) any Lender's or Agent's
consent to the change, reorganization or termination of the corporate or
partnership structure or existence of the Partnership or any of its
Subsidiaries and to any corresponding restructuring of the Guarantied
Obligations; (vi) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guarantied Obligations;
(vii) any defenses which the Partnership may allege or assert against Agent or
any Lender in respect of the Guarantied Obligations, including but not limited
to statute of frauds, statute of limitations, and usury; and (viii) any other
act or thing or omission, or delay to do any other act or thing, which may or
might in any manner or to any extent vary the risk of the Guarantor as an
obligor in respect of the Guarantied Obligations.
Section 8.03 Waivers by the Guarantor.
------------------------
The Guarantor hereby waives, for the benefit of Lenders
and Agent:
(a) any right to require Agent or Lenders, as a condition of
payment or performance by the Guarantor, to (i) proceed against the
Partnership, any other guarantor of the Guarantied Obligations or any other
Person, (ii) proceed against or exhaust any security held from the
Partnership, any other guarantor of the Guarantied Obligations or any other
Person, (iii) proceed against or have resort to any balance of any deposit
account or credit on the books of Agent or any Lender in favor of the
Partnership or any other Person, or (iv) pursue any other remedy in the power
of Agent or any Lender whatsoever;
(b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of the Partnership including,
without limitation, any defense based on or arising out of the lack of
validity or the unenforceability of the Guarantied Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of the Partnership from any cause other than indefeasible payment in
full of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor
in other respects more burdensome than that of the principal;
(d) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this Guaranty
and any legal or equitable discharge of the Guarantor's obligations hereunder,
(ii) the benefit of any statute of limitations affecting the Guarantor's
liability hereunder or the enforcement hereof, and (iii) promptness, diligence
and any requirement that Agent or any Lender protect, secure, perfect or
insure any security interest or lien or any property subject thereto;
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(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.
Section 362(a)), the Guarantor will forthwith pay, or cause to be paid, in
cash, to Agent for the benefit of Lenders, an amount equal to the sum of the
unpaid principal amount of all Guarantied Obligations then due as aforesaid,
accrued and unpaid interest on such Guarantied Obligations (including, without
limitation, interest which, but for the filing of a petition in bankruptcy
with respect to the Partnership, would have accrued on such Guarantied
Obligations, whether or not a claim is allowed against the Partnership for
such interest in any such bankruptcy proceeding) and all other Guarantied
Obligations then owed to Agent and/or Lenders as aforesaid.
Section 8.05 Subrogation.
-----------
Until the Guarantied Obligations shall have been
indefeasibly paid in full, the Guarantor shall withhold exercise of (a) any
right of subrogation, (b) any right of contribution the Guarantor may have
against any other guarantor of the Guarantied Obligations, (c) any right to
enforce any remedy which Agent or any Lender now has or may hereafter have
against the Partnership or (d) any benefit of, and any right to participate
in, any security now or hereafter held by Agent or any Lender. The Guarantor
further agrees that, to the extent that its agreement to defer exercising any
of its rights of subrogation and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation the Guarantor may have against the Partnership or
against any collateral or security, and any rights of contribution the
Guarantor may have against any other guarantor, shall be junior and
subordinate to any rights Agent or Lenders may have against the Partnership,
to all right, title and interest Agent or Lenders may have in any such
collateral or security, and to any right Agent or Lenders may have against
such other guarantor. Agent, on behalf of Lenders, may use, sell or dispose
of any item of collateral or security as it sees fit without regard to any
subrogation rights the Guarantor may have, and upon any such disposition or
sale any rights of subrogation the Guarantor may have shall terminate. If any
amount shall be paid to the Guarantor on account of such subrogation rights at
any time when all Guarantied Obligations shall not have been paid in full,
such amount shall be held in trust for Agent on behalf of Lenders and shall
forthwith be paid over to Agent for the benefit of
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Lenders to be credited and applied against the Guarantied Obligations in
accordance with the terms of this Agreement or any applicable security
agreement.
Section 8.06 Subordination of Other Obligations.
----------------------------------
Any indebtedness of the Partnership or any Subsidiary of
the Partnership now or hereafter held by the Guarantor is hereby subordinated
in right of payment to the Guarantied Obligations, and any such indebtedness
of the Partnership or any Subsidiary of the Partnership to the Guarantor
collected or received by the Guarantor after an Event of Default resulting
from a payment default has occurred and is continuing or after an acceleration
of the Guarantied Obligations shall be held in trust for Agent on behalf of
Lenders and shall forthwith be paid over to Agent for the benefit of Lenders
to be credited and applied against the Guarantied Obligations but without
affecting, impairing or limiting in any manner the liability of the Guarantor
under any other provision of this Guaranty.
Section 8.07 Expenses.
--------
The Guarantor agrees to pay, or cause to be paid, and to
save Agent and Lenders harmless against liability for, any and all reasonable
costs and out-of-pocket expenses (including fees and disbursements of counsel)
incurred or expended by Agent or any Lender in connection with the enforcement
of or preservation of any rights under this Guaranty.
Section 8.08 Continuing Guaranty; Termination of Guaranty.
--------------------------------------------
This Guaranty is a continuing guaranty and shall remain
in effect until all of the Guarantied Obligations shall have been indefeasibly
paid in full and the Commitments of all Lenders shall have terminated.
Section 8.09 Authority of the Guarantor or the Partnership.
---------------------------------------------
It is not necessary for Lenders or Agent to inquire into
the capacity or powers of the Guarantor or the Partnership or the officers,
directors or any agents acting or purporting to act on behalf of any of them.
Section 8.10 Financial Condition of the Partnership.
--------------------------------------
Any Advances may be granted to the Partnership or
continued from time to time without notice to or authorization from Guarantor
regardless of the financial or other condition of the Partnership at the time
of any such grant or continuation. Lenders and Agent shall have no obligation
to disclose or discuss with the Guarantor their assessment, or the Guarantor's
assessment, of the financial condition of the Partnership. The Guarantor has
adequate means to obtain information from the Partnership on a continuing
basis concerning the financial condition of the Partnership and its ability to
perform its obligations hereunder, and the Guarantor assumes the
responsibility for being and keeping informed of the financial condition of
the Partnership and of all circumstances bearing upon the risk of nonpayment
of the Guarantied Obligations. The Guarantor hereby waives and relinquishes
any duty on the part of Agent or any Lender to disclose any matter, fact or
thing relating to the business, operations or conditions of the Partnership
now known or hereafter known by Agent or any Lender.
Section 8.11 Rights Cumulative.
-----------------
The rights, powers and remedies given to Lenders and
Agent by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Lenders and Agent by
virtue of any statute or rule of
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law or under this Agreement or any agreement between the Corporation and
Lenders and/or Agent or between the Partnership and Lenders and/or Agent. Any
forbearance or failure to exercise, and any delay by any Lender or Agent in
exercising, any right, power or remedy hereunder shall not impair any such
right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
Section 8.12 Bankruptcy; Post-Petition Interest; Reinstatement of the
--------------------------------------------------------
Guaranty.
--------
(a) So long as any Guarantied Obligations remain outstanding, the
Guarantor shall not, without the prior written consent of Agent in accordance
with the terms of this Agreement, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency proceedings of or
against the Partnership. The obligations of the Guarantor under this Guaranty
shall not be reduced, limited, impaired, discharged, deferred, suspended or
terminated by any proceeding, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of the Partnership or by any defense which the Partnership may
have by reason of the order, decree or decision of any court or administrative
body resulting from any such proceeding.
(b) The Guarantor acknowledges and agrees that any interest on any
portion of the Guarantied Obligations which accrues after the commencement of
any proceeding referred to in clause (a) above (or, if interest on any portion
of the Guarantied Obligations ceases to accrue by operation of law by reason
of the commencement of said proceeding, such interest as would have accrued on
such portion of the Guarantied Obligations if said proceedings had not been
commenced) shall be included in the Guarantied Obligations because it is the
intention of the Guarantor and Agent that the Guarantied Obligations which are
guarantied by the Guarantor pursuant to this Guaranty should be determined
without regard to any rule of bankruptcy or other similar laws or which may
relieve the Partnership of any portion of such Guarantied Obligations. The
Guarantor will permit any trustee in bankruptcy, receiver, debtor in
possession, assignee for the benefit of creditors or similar person to pay
Agent, or allow the claim of Agent in respect of, any such interest accruing
after the date on which such proceeding is commenced.
(c) In the event that all or any portion of the Guarantied
Obligations are paid by the Partnership, the obligations of the Guarantor
hereunder shall continue and remain in full force and effect or be reinstated,
as the case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from Agent or any Lender as a
preference, fraudulent transfer or otherwise, and any such payments which are
so rescinded or recovered shall constitute Guarantied Obligations for all
purposes under this Guaranty.
Section 8.13 Notice of Events.
----------------
As soon as the Guarantor obtains knowledge thereof, the
Guarantor shall give Agent written notice of any condition or event which has
resulted or might reasonably be expected to result in (a) a material adverse
change in the financial condition of the Guarantor or the Partnership, or (b)
a breach of or noncompliance with any term, condition or covenant contained in
this Agreement or in any document delivered pursuant hereto, or (c) a material
breach of, or material noncompliance with, any material term, condition or
covenant of any material contract to which the Guarantor or the Partnership is
a party or by which the Guarantor or the Partnership or the Guarantor's or the
Partnership's
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property may be bound, or (d) the Guarantor or any of its Subsidiaries being
suspended or debarred by any governmental entity from entering into any
government contract or government subcontract, from otherwise engaging in any
business relating to government contracts or from participation in government
non-procurement programs, if such suspension or debarment may have a material
adverse effect on the business, condition (financial or otherwise), operations
or properties of the Guarantor and its Subsidiaries, taken as a whole.
Section 8.14 Set Off.
-------
In addition to any other rights any Lender may have
under law or in equity, if any amount shall at any time be due and owing by
the Guarantor to any Lender under this Guaranty, such Lender is authorized at
any time or from time to time, without notice (any such notice being hereby
expressly waived), to set off and to appropriate and to apply any and all
deposits (including but not limited to indebtedness evidenced by certificates
of deposit, whether matured or unmatured, time or demand deposits, provisional
or final deposits, or general deposits but not special deposits) and any other
indebtedness of such Lender or any Affiliate thereof owing to the Guarantor
and any other property of the Guarantor held by such Lender to or for the
credit or the account of the Guarantor against and on account of the
Guarantied Obligations and liabilities of Guarantor to such Lender under this
Guaranty, and each such Affiliate is hereby irrevocably authorized to permit
such setoff and application.
Section 8.15 Determination of the Guarantied Obligations.
-------------------------------------------
Notwithstanding anything to the contrary contained in
this Guaranty, the determination of the amount and terms of repayment of the
Guarantied Obligations under this Guaranty shall be consistent with such
determination pursuant to this Agreement (without giving effect to the effect
upon such determination of the Bankruptcy Code) with the result that the
liability of the Guarantor under this Guaranty will not exceed the liability
which the Guarantor would have had if it had been the Partnership under this
Agreement (plus any amounts payable pursuant to Section 8.07 hereof); provided
--------
however that the Guarantor's agreements and waivers set forth herein with
-------
respect to suretyship defenses (including, without limitation, defenses based
on lack of authority of the Partnership or persons signing on behalf of the
Partnership or the illegality, invalidity or unenforceability of this
Agreement against the Partnership) shall be fully effective, it being
understood that the limitation on the Guarantor's liability set forth above
relates only to the determination of the amount and payment terms of the
Guarantied Obligations and does not otherwise limit the Guarantor's
obligations under this Guaranty.
Section 8.16 Successors and Assigns.
----------------------
This Guaranty is a continuing guaranty and shall be
binding upon the Guarantor and its successors and assigns. This Guaranty
shall inure to the benefit of Lenders, Agent and their respective successors
and assigns. The Guarantor shall not assign this Guaranty or any of the
rights or obligations of the Guarantor hereunder without the prior written
consent of all Lenders. Any Lender may, without notice or consent, assign its
interest in this Guaranty in whole or in part. The terms and provisions of
this Guaranty shall inure to the benefit of any assignee or transferee of any
rights and obligations under this Agreement, and in the event of such transfer
or assignment the rights and privileges herein conferred upon Lenders and
Agent shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.
Section 8.17 Further Assurances.
------------------
At any time or from time to time, upon the request of
Agent or Majority Lenders, the Guarantor shall execute and deliver such
further
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documents and do such other acts and things as Agent or Majority Lenders may
reasonably request in order to effect fully the purposes of this Guaranty.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Amendments, Etc.
---------------
No amendment or waiver of any provision of this
Agreement, nor consent to any departure by the Partnership or the Corporation
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless
-------- -------
in writing and signed by all the Lenders, do any of the following: (a) waive
any of the conditions specified in Section 3.01, (b) increase the Commitments
of the Lenders (except pursuant to Section 2.18) or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the A
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the A Advances or any
fees or other amounts payable hereunder (except pursuant to Section 2.16), (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the A Advances, or the number of Lenders, which shall be required
for the Lenders or any of them to take any action hereunder, (f) limit or
release the liability of the Guarantor under the Guaranty, (g) postpone any
date fixed for payment under the Guaranty or (h) amend Section 2.16, Section
2.18 or this Section 9.01; and provided, further, that no amendment, waiver or
-------- -------
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement; and provided further, that any amendment,
-------- -------
modification, termination or waiver of the principal amount of any B Advance
or payments or prepayments by either Borrower in respect thereof, the
scheduled maturity dates of any B Advance, the dates on which interest is
payable and decreases in interest rates borne by B Advances shall not be
effective without the written concurrence of the Lender which has funded such
B Advance.
Section 9.02 Notices, Etc.
------------
All notices and other communications provided for
hereunder shall be in writing (including telecopier, telegraphic, telex or
cable communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to the Corporation, at its address at Computer Sciences
Corporation, 2100 East Grand Avenue, El Segundo, California, 90245, Attention:
Leon J. Level; if to the Partnership, at its address at CSC Enterprises, 2100
E. Grand Avenue, El Segundo, California 90245, Attention: Leon J. Level; if to
any Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Agent, (A) for all notices and communications relating
to borrowings or repayments, including, without limitation, any Notice of
Borrowing, Notice of Conversion/Continuation or notice of repayment or
prepayment, at its address at Citicorp USA, Inc., c/o Citibank Agency
Services, 2 Penns Way, Suite 200, New Castle, Delaware 19720, Attention:
Janet Wallace, and (B) for all other notices and communications at its address
at Citicorp USA, Inc., 787 West 5th Street, 27th Floor, Los Angeles,
California 90071, Attention: Walter Larsen; 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
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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 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
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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.
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Upon (i) the occurrence and during the continuance of
any Event of Default and (ii) the making of the request or the granting of the
consent specified by Section 6.01 to authorize the Agent to declare the
Advances due and payable pursuant to the provisions of Section 6.01, each
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (time or
demand, provisional or final, or general, but not special) at any time held
and other indebtedness at any time owing by such Lender or any Affiliate
thereof to or for the credit or the account of either Borrower against any and
all of the obligations of such Borrower now or hereafter existing under this
Agreement that are then due and payable, whether or not such Lender shall have
made any demand under this Agreement, and each such Affiliate is hereby
irrevocably authorized to permit such setoff and application. Each Lender
agrees promptly to notify the applicable Borrower after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Lender may
have.
Section 9.06 Binding Effect.
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This Agreement shall be deemed to have been executed and
delivered when it shall have been executed by the Partnership, the Corporation
and the Agent and when the Agent shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding upon and inure to
the benefit of the Partnership, the Corporation, the Agent and each Lender and
their respective successors and permitted assigns, except that the Partnership
and the Corporation shall not have the right to assign their rights hereunder
or any interest herein without the prior written consent of all Lenders. At
the time of the effectiveness of this Agreement, (i) this Agreement shall
supersede the Existing Credit Agreement and (ii) the Existing Credit Agreement
shall automatically terminate and be of no further force and effect.
Section 9.07 Assignments and Participations.
------------------------------
(a) Each Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and the A Advances
owing to it); provided, however, that (i) each such assignment shall be of a
-------- -------
constant, and not a varying, percentage of all rights and obligations under
this Agreement (other than any B Advances), (ii) after giving effect to any
such assignment, (1) the assigning Lender shall no longer have any Commitment
or (2) the amount of the Commitment of each of the assigning Lender and the
Eligible Assignee party to such
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assignment (in each case determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall not be less than
$10,000,000, (iii) each such assignment shall be to an Eligible Assignee, and
(iv) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, and a processing and recordation fee of $3,500. Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder and (y) the Lender
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto). Any Lender may
at any time pledge or assign all or any portion of its rights hereunder to any
Affiliate of such Lender or any Federal Reserve Bank; provided, that no such
--------
pledge or assignment shall release such Lender from any of its obligations
hereunder.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Partnership or the Corporation or the performance or
observance by the Partnership or the Corporation of any of its obligations
under this Agreement or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 4.01 and Section 4.02, and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently
and without reliance upon the Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all of the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders
and the Commitment of, the Commitment Termination Date of, and, with respect
to each Borrower, principal amount of the Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be
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conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Within five days of its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee (together with a processing and recordation fee of $3,500
with respect thereto) and upon consent of the Borrowers thereto, which consent
shall not be unreasonably withheld, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit B
hereto, (1) accept such Assignment and Acceptance and (2) record the
information contained therein in the Register. All communications with the
Borrowers with respect to such consent of the Borrowers shall be either sent
pursuant to Section 9.02 or sent to the following: CSC Enterprises, 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 owing to it; provided, however, that (i) such
-------- -------
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Advance for all purposes of this Agreement, (iv) the Borrowers, the
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement, and (v) no Lender shall grant any participation under which the
participant shall have rights to require such Lender to take or omit to take
any action hereunder or approve any amendment to or waiver of this Agreement,
except to the extent such amendment or waiver would: (A) extend the
Termination Date of such Lender; or (B) reduce the interest rate or the amount
of principal or fees applicable to Advances or the Commitment in which such
participant is participating.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Partnership or the Corporation
furnished to such Lender by or on behalf of the Partnership or the
Corporation; provided that, prior to any such disclosure, the assignee or
Participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Partnership or
the Corporation received by it from such Lender.
Section 9.08 Governing Law.
-------------
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
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Section 9.09 Execution in Counterparts.
-------------------------
This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Section 9.10 Consent to Jurisdiction; Waiver of Immunities.
---------------------------------------------
The Partnership and the Corporation hereby irrevocably
submit to the jurisdiction of any New York state or Federal court sitting in
New York, New York in any action or proceeding arising out of or relating to
this Agreement, and the Partnership and the Corporation hereby irrevocably
agree that all claims in respect of such action or proceeding may be heard and
determined in such New York state or Federal court. The Partnership and the
Corporation hereby irrevocably waive, to the fullest extent they may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding. The Partnership and the Corporation agree that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section 9.10 shall affect the right of any
Lender or Agent to serve legal process in any other manner permitted by law or
affect the right of any Lender or Agent to bring any action or proceeding
against the Partnership and the Corporation or their respective property in
the courts of any other jurisdiction.
Section 9.11 Waiver of Trial by Jury.
-----------------------
THE PARTNERSHIP, THE CORPORATION, THE BANKS, THE AGENT
AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF, OTHER LENDERS EACH HEREBY
AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed
in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty
claims and all other common law and statutory claims. The Partnership, the
Corporation, the Banks, the Agent and, by its acceptance of the benefits
hereof, other Lenders each (i) acknowledges that this waiver is a material
inducement for the Partnership, the Corporation, the Lenders and the Agent to
enter into a business relationship, that the Partnership, the Corporation, the
Lenders and the Agent have already relied on this waiver in entering into this
Agreement or accepting the benefits thereof, as the case may be, and that each
will continue to rely on this waiver in their related future dealings and (ii)
further warrants and represents that each has reviewed this waiver with its
legal counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
Section 9.12 Limited Liability of Merel Corporation.
--------------------------------------
The Agent and each Lender agree for themselves and their
successors and assigns that any claim against Merel Corporation or its
successors (the "Limited Liability Partner") which may arise hereunder shall
be made only against and shall be limited to the partnership interest in the
Partnership owned by
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such Limited Liability Partner, any right to proceed against the Limited
Liability Partner individually or any of its respective assets, other than
with respect to its respective partnership interests in the Partnership, being
hereby expressly waived and renounced by the Agent and each Lender. Nothing
in this Section 9.12 shall be construed so as to prevent the Agent or any
Lender from commencing any legal action, suit or proceeding with respect to,
or causing legal papers to be served upon, the Limited Liability Partner for
the purpose of obtaining jurisdiction over the Partnership or the Limited
Liability Partner.
Section 9.13 Survival of Warranties.
----------------------
All agreements, representations and warranties made in
this Agreement shall survive the execution and delivery of this Agreement and
any increase in the Commitments under this Agreement.
Section 9.14 Severability.
------------
In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
Section 9.15 Headings.
--------
Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive
effect.
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