EXHIBIT 10.25
AMENDMENT AGREEMENT
TO CREDIT AGREEMENT (Long Term Facility)
This AMENDMENT AGREEMENT TO CREDIT AGREEMENT (Long 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
(Long 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"):
<PAGE>
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
2
<PAGE>
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.
3
<PAGE>
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.
4
<PAGE>
(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
--------------
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
---------------------------
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.]
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: Walter 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. Dietz (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. Evey
---------------------------
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, N.A. (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-Schommel
Title: Senior Vice President
By /s/ Beth Corey
---------------------------
Name: Beth Corey
Title: Vice President
MORGAN GUARANTY TRUST CO. OF NEW YORK
AS ATTORNEY-IN FACT FOR REVOLVING
COMMITMENT VEHICLE CORPORATION
(As a Lender)
By /s/ Robert Bottamedi
---------------------------
Name: Robert Bottamedi
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
(Long Term Facility)
Dated as of August 18, 2000
Among
CSC ENTERPRISES
as Borrower
-----------
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
-----------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
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
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..............................22
Section 2.09 Voluntary Conversion or Continuation of A Advances.......22
Section 2.10 Increased Costs..........................................23
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.........................................27
Section 2.15 Use of Proceeds..........................................27
Section 2.16 Extension of the Commitment Termination Date.............28
Section 2.17 Substitution of Lenders..................................28
Section 2.18 Increased Commitments; Additional Lenders................29
Section 2.19 Special Purpose Funding Vehicles.........................30
ARTICLE III CONDITIONS OF LENDING
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
Section 4.01 Representations and Warranties of the Partnership........32
Section 4.02 Representations and Warranties of the Corporation........35
ARTICLE V COVENANTS
Section 5.01 Affirmative Covenants of the Partnership.................39
Section 5.02 Negative Covenants of the Partnership....................41
-i-
<PAGE>
TABLE OF CONTENTS
(continued)
Page
Section 5.03 Affirmative Covenants of the Corporation.................43
Section 5.04 Negative Covenants of the Corporation....................47
ARTICLE VI EVENTS OF DEFAULT
Section 6.01 Events of Default........................................49
ARTICLE VII THE AGENT
Section 7.01 Authorization and Action.................................52
Section 7.02 Agent's Reliance, Etc....................................53
Section 7.03 CUSA and Affiliates......................................53
Section 7.04 Lender Credit Decision...................................53
Section 7.05 Indemnification..........................................53
Section 7.06 Successor Agent..........................................54
ARTICLE VIII THE GUARANTY
Section 8.01 Guaranty of the Guarantied Obligations...................54
Section 8.02 Liability of the Guarantor...............................55
Section 8.03 Waivers by the Guarantor.................................57
Section 8.04 Payment by the Guarantor.................................57
Section 8.05 Subrogation..............................................58
Section 8.06 Subordination of Other Obligations.......................58
Section 8.07 Expenses.................................................58
Section 8.08 Continuing Guaranty; Termination of Guaranty.............59
Section 8.09 Authority of the Guarantor or the Partnership............59
Section 8.10 Financial Condition of the Partnership...................59
Section 8.11 Rights Cumulative........................................59
Section 8.12 Bankruptcy; Post-Petition Interest; Reinstatement
of the Guaranty..........................................59
Section 8.13 Notice of Events.........................................60
Section 8.14 Set Off..................................................60
Section 8.15 Determination of the Guarantied Obligations..............61
Section 8.16 Successors and Assigns...................................61
Section 8.17 Further Assurances.......................................61
ARTICLE IX MISCELLANEOUS
Section 9.01 Amendments, Etc..........................................61
Section 9.02 Notices, Etc.............................................62
Section 9.03 No Waiver; Remedies......................................62
Section 9.04 Costs, Expenses and Indemnification......................63
Section 9.05 Right of Set-off.........................................63
Section 9.06 Binding Effect...........................................64
-ii-
<PAGE>
TABLE OF CONTENTS
(continued)
Page
Section 9.07 Assignments and Participations...........................64
Section 9.08 Governing Law............................................66
Section 9.09 Execution in Counterparts................................66
Section 9.10 Consent to Jurisdiction; Waiver of Immunities............66
Section 9.11 Waiver of Trial by Jury..................................67
Section 9.12 Limited Liability of Merel Corporation...................67
Section 9.13 Survival of Warranties...................................68
Section 9.14 Severability.............................................68
Section 9.15 Headings.................................................68
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 Howard D. Fisk, Esq., Counsel for the
Borrower
Exhibit D Form of Extension Request
-iii-
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
(Long 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 (Long 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.
---------------------
As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Advance" means an advance by a Lender to a Borrower as part
---------
of an A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance, each of which shall be a "Type" of A Advance.
----
"A Borrowing" means a borrowing consisting of A Advances of
-----------
the same 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.
1
<PAGE>
"Adjusted Eurodollar Rate" means, for any Interest Period for
------------------------
each 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
Article II.
"Advance" means an A Advance or a B Advance.
-------
"Affiliate" means, as to any Person, any other Person that,
---------
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director or executive officer (as such term is used
in Regulation S-K promulgated under the Securities Act of 1933, as amended)
of such Person.
"Agreement" means this 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
----------------------------------------------------
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.
"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.
2
<PAGE>
"B Advance" means an advance by a Lender to a Borrower as part
---------
of a 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.
-----------
"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).
"Borrower" means (i) the Partnership, or (ii) the Corporation,
--------
in the Corporation's capacity as a borrower hereunder, and "Borrowers" means
---------
both of them, together.
3
<PAGE>
"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, five years from the date of this Agreement, or such later date to
which the Commitment Termination Date of such Lender may be extended from
time to time pursuant to Section 2.16 (or if any such date is not a Business
Day, the next preceding Business Day).
"Consolidated Gross Cash Flow" means, for any period, (i) the
----------------------------
sum of (A) net income, plus (B) taxes on income, plus (C) net interest
---- ----
expense, plus (D) depreciation expense, plus (E) amortization expense of
---- ----
goodwill, financing costs and other intangibles, plus (F) extraordinary
----
losses, plus (G) other non-cash charges to the extent deducted from net
----
income, minus (ii) the sum of (A) extraordinary gains and (B) the aggregate
-----
amount of Capital Expenditures, all of the foregoing shall be on a
consolidated basis for the Corporation and its Subsidiaries.
"Consolidated Interest Expense" means, for any period,
-----------------------------
consolidated total net interest expense in respect of Debt of the Corporation
and its Subsidiaries.
4
<PAGE>
"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 0.125% 0.175% 0.30%
Level 2 0.15% 0.20% 0.325%
Level 3 0.225% 0.325% 0.575%
Level 4 0.30% 0.40% 0.65%
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 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
5
<PAGE>
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, so long as the
--------------
conditions precedent set forth in Section 3.01 have been satisfied.
"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
7
<PAGE>
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirements (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
-----------------
"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
8
<PAGE>
applicable Borrower may select in the Notice of Borrowing or the Notice of
Conversion/Continuation for such Advance; provided, however, that:
-------- -------
(i) a Borrower may not select any Interest
Period which ends after the earliest Commitment Termination Date of any
Lender then in effect;
(ii) Interest Periods commencing on the same date
for A Advances comprising part of the same A Borrowing shall be of the same
duration; and
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, that if such extension would cause the last day of
such Interest Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding Business Day.
"Lenders" means the Banks listed on the signature pages hereof
-------
and each 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
9
<PAGE>
Commitments (provided that, for purposes hereof, neither a Borrower, nor any
--------
of its Affiliates, if a Lender, shall be included in (i) the Lenders holding
such amount of the A Advances or having such amount of the Commitments or
(ii) determining the aggregate unpaid principal amount of the A Advances or
the total Commitments).
"Managing Partner" means CSC Enterprises, Inc., a Nevada
----------------
corporation and 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.
----
10
<PAGE>
"Pension Plan" means a Single Employer Plan or a Multiple
------------
Employer Plan or both.
"Person" means an individual, partnership, corporation,
------
business trust, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or
agency thereof.
"Potential Event of Default" means a condition or event which,
--------------------------
after notice or lapse of time or both, would constitute an Event of Default
if that condition or event were not cured or removed within any applicable
grace or cure period.
"Rating" means a public or private rating established by S&P
------
or Moody's with respect to the Long-Term Debt or, if there is no Long-Term
Debt outstanding, a private rating established by S&P or Moody's with respect
to the Corporation.
"Reference Banks" means Citibank, 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.
11
<PAGE>
"Termination Date" means, with respect to any Lender, the
----------------
earlier of (i) the Commitment Termination Date of such Lender and (ii) the
date of termination in whole of the Commitments of all Lenders pursuant to
Section 2.05 or 6.01.
"Type" means, with reference to an A Advance, a Base Rate
----
Advance or a Eurodollar Rate Advance.
"Withdrawal Liability" has the meaning given such term under
--------------------
Part I of Subtitle E of Title IV of ERISA.
Section 1.02 Computation of Time Periods.
---------------------------
In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each means
"to but excluding".
Section 1.03 Accounting Terms.
----------------
All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent with
those applied in the preparation of the financial statements referred to in
Section 4.01(e) or Section 4.02(e), as the case may be. All computations
determining compliance with financial covenants or terms, including
definitions used therein, shall be prepared in accordance with generally
accepted accounting principles in effect at the time of the preparation of,
and in conformity with those used to prepare, the historical financial
statements delivered to the Lenders pursuant to Section 4.01(e) or Section
4.02(e), as the case may be. If at any time the computations for determining
compliance with financial covenants or provisions relating thereto utilize
generally accepted accounting principles different than those then being
utilized in the financial statements being delivered to the Lenders, such
financial statements shall be accompanied by a reconciliation statement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The A Advances.
--------------
Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make A Advances to either
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date of such Lender in an aggregate
amount (together with the aggregate amount of A Advances made to the other
Borrower that is outstanding at such time) not to exceed at any time
outstanding the amount set opposite such Lender's name on 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
12
<PAGE>
consist of A Advances of the same Type made on the same day to the same
Borrower by the Lenders ratably according to their respective Commitments.
Within the limits of each Lender's Commitment, each Borrower may from time to
time borrow, prepay pursuant to Section 2.06(d) and reborrow under this
Section 2.01.
Section 2.02 Making the A Advances.
---------------------
(a) Each A Borrowing shall be made on notice, given not
later than (x) 10:00 A.M. (New York City time) on the date of a proposed A
Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City
time) on the third Business Day prior to the date of a proposed A Borrowing
consisting of Eurodollar Rate Advances, by the Borrower requesting the
proposed A Borrowing to the Agent, which shall give to each Lender prompt
notice thereof by telecopier, telex or cable. Each such notice of an A
Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable,
confirmed immediately in writing, in substantially the form of Exhibit A-1
hereto, specifying therein the requested (i) date of such A Borrowing, (ii)
Type of A Advances comprising such A Borrowing, (iii) aggregate amount of
such A Borrowing, and (iv) in the case of an A Borrowing comprised of
Eurodollar Rate Advances, the initial Interest Period for each such A
Advance. A Borrower may, subject to the conditions herein provided, borrow
more than one A Borrowing on any Business Day. Each Lender shall, before
1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base
Rate Advances and before 11:00 A.M. (New York City time) in the case of a
Borrowing consisting of Eurodollar Rate Advances, in each case on the date of
such A Borrowing, make available for the account of its Applicable Lending
Office to the Agent at its address referred to in Section 9.02, in same day
funds, such Lender's ratable portion of such A Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the
Borrower requesting the proposed A Borrowing at the Agent's aforesaid
address.
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) a Borrower may not select Eurodollar Rate
Advances for any A Borrowing or with respect to the Conversion or continuance
of any A Borrowing if the aggregate amount of such A Borrowing or such
Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest
Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall 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
13
<PAGE>
suspension no longer exist and such Lender's then outstanding Eurodollar Rate
Advances, if any, shall be Base Rate Advances; to the extent that such
affected Eurodollar Rate Advances become Base Rate Advances, all payments of
principal that would have been otherwise applied to such Eurodollar Rate
Advances shall be applied instead to such Lender's Base Rate Advances;
provided that if Majority Lenders are subject to the same illegality or
--------
assertion of illegality, then the right of a Borrower to select Eurodollar
Rate Advances for such A Borrowing or any subsequent A Borrowing or to
Convert all or any portion of Base Rate Advances shall forthwith be suspended
until the Agent shall notify the Borrowers that the circumstances causing
such suspension no longer exist, and each A Advance comprising such A
Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish
timely information to the Agent for determining the Adjusted Eurodollar Rate
for any Eurodollar Rate Advances comprising any requested A Borrowing, the
right of a Borrower to select Eurodollar Rate Advances for such A Borrowing
or any subsequent A Borrowing shall be suspended until the Agent shall notify
the Borrowers and the Lenders that the circumstances causing such suspension
no longer exist, and each A Advance comprising such A Borrowing shall be made
as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one
Business Day before the date of any requested A Borrowing, notify the Agent
that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising
such A Borrowing will not adequately reflect the cost to such Majority
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such A Borrowing, the right of a Borrower to select Eurodollar
Rate Advances for such A Borrowing or any subsequent A Borrowing shall be
suspended until the Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist, and each A Advance
comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrower requesting the proposed A Borrowing. In the case of
any A Borrowing which the related Notice of A 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
14
<PAGE>
the extent that such Lender shall not have so made such ratable portion
available to the Agent, such Lender and such Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the Agent,
at (i) in the case of such Borrower, the interest rate applicable at the time
to A Advances comprising such A Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's A
Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be
made by it as part of any A Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of
any A Borrowing.
Section 2.03 The B Advances.
--------------
(a) Each Lender severally agrees that
either Borrower may make B Borrowings under this Section 2.03 from time to
time on any Business Day during the period from the date hereof until the
date occurring 30 days prior to the latest Commitment Termination Date of any
Lender then in effect in the manner set forth below; provided that, (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
15
<PAGE>
offered by them. A Borrower may not select a maturity date for any B
Borrowing which ends after the latest Commitment Termination Date of any
Lender then in effect. The Agent shall in turn promptly notify each Lender
of each request for a B Borrowing received by it from a Borrower by sending
such Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion,
it elects to do so, irrevocably offer to make one or more B Advances to such
Borrower as part of such proposed B Borrowing at a rate or rates of interest
specified by such 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
16
<PAGE>
Borrowing delivered by such Borrower pursuant to paragraph (i) above), and
reject any remaining offers made by Lenders pursuant to paragraph (ii) above
by giving the Agent notice to that effect; provided that acceptance of offers
--------
may only be made on the basis of ascending rates for B Borrowings of the same
type and duration for up to the maximum amounts offered by Lenders; and
provided further that if offers are made by two or more Lenders for the same
-------- -------
type of B Borrowing for the same duration and with the same rate of interest,
in an aggregate amount which is greater than the amount requested, such
offers shall be accepted on a pro rata basis based on the maximum amounts
offered by such Lenders at such rate of interest.
(iv) If such Borrower notifies the Agent that
such B Borrowing is cancelled pursuant to paragraph (iii)(x) above or if such
Borrower rejects any offers made by Lenders pursuant to paragraph (iii)(y)
above, the Agent shall give prompt notice thereof to the Lenders or affected
Lenders, as the case may be, and in the case of a cancellation, such B
Borrowing shall not be made.
(v) If such Borrower accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph (iii)(y) above,
the Agent shall in turn promptly notify (A) each Lender that has made an
offer as described in paragraph (ii) above, of the date and aggregate amount
of such B Borrowing and whether or not any offer or offers made by such
Lender pursuant to paragraph (ii) above have been accepted by such Borrower,
(B) each Lender that is to make a B Advance as part of such B Borrowing, of
the amount of each B Advance to be made by such Lender as part of such B
Borrowing, and (C) each Lender that is to make a B Advance as part of such B
Borrowing, upon receipt, that the Agent has received forms of documents
appearing to fulfill the applicable conditions set forth in Article III.
Each Lender that is to make a B Advance as part of such B Borrowing shall,
before 1:00 P.M. (New York City time) on the date of such B Borrowing
specified in the notice received from the Agent pursuant to clause (A) of the
preceding sentence or any later time when such Lender shall have received
notice from the Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the Agent at
its address referred to in Section 9.02 such 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.
17
<PAGE>
(b) Each B Borrowing shall be in an aggregate amount not
less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each B Borrowing, the Borrowers and each Lender
shall be in compliance with the limitations set forth in the proviso to the
first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in
this Section 2.03, either Borrower may from time to time borrow under this
Section 2.03, repay or prepay pursuant to subsection (d) below, and reborrow
under this Section 2.03, and more than one B Borrowing may be made on a
Business Day; provided that, except for B Borrowings made on the same
--------
Business Day, a B Borrowing shall not be made within three Business Days of
the date of any other B Borrowing.
(d) Each Borrower shall repay to the Agent for the
account of each Lender which has made a B Advance to such Borrower, on the
maturity date of each B Advance made to such Borrower (such maturity date
being that specified by such Borrower for repayment of such B Advance in the
related Notice of B Borrowing delivered pursuant to subsection (a)(i) above),
the then unpaid principal amount of such B Advance. Neither Borrower shall
have any right to prepay any principal amount of any B Advance unless, and
then only on the terms, specified by such Borrower for such B Advance in the
related Notice of B Borrowing delivered pursuant to subsection (a)(i) above.
(e) Each Borrower shall pay interest on the unpaid
principal amount of each B Advance made to such Borrower from the date of
such B Advance to the date the principal amount of such B Advance is repaid
in full, at the rate of interest for such B Advance specified by the Lender
making such B Advance in its notice with respect thereto delivered pursuant
to subsection (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
18
<PAGE>
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 such payment that is to be made times (ii)
the weighted average rate per annum that is derived from the following rates:
(a) a rate of 0.07% per annum with respect to each day during such period
that the higher of the Ratings was Level 1, (b) a rate of 0.10% per annum
with respect to each day during such period that the higher of such Ratings
was Level 2, (c) a rate of 0.125% per annum with respect to each day during
such period that the higher of such Ratings was Level 3 and (d) a rate of
0.15% per annum with respect to each day during such period that the higher
of such Ratings was Level 4. If any change in the Rating shall result in a
change in the Level, the change in the facility fee shall be effective as of
the date on which such rating change is publicly 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.
19
<PAGE>
Section 2.06 Repayment and Prepayment of A Advances.
--------------------------------------
(a) Mandatory Repayment on Termination Date. Each
---------------------------------------
Borrower shall repay the outstanding principal amount of each A Advance made
by each Lender to such Borrower on the Termination Date of such Lender.
(b) Mandatory Prepayment in Certain Events. If any one of the following
events shall occur:
(i) Representatives of CSC Partners shall cease
to constitute a majority of the Partnership's Partnership Committee (or
similar body which may replace such Partnership Committee) or the rights and
powers of such Partnership Committee shall be materially diminished in a
manner such that the Partnership's Partnership Committee (or similar body
which may replace such Partnership Committee) shall cease to have
substantially the same ability to control the operations or policies of the
Partnership as it has on the date hereof; or
(ii) CSC Enterprises, Inc. shall cease to be the
Managing Partner (unless the successor Managing Partner is a Subsidiary of
the Corporation of which the Corporation owns at least 80% of the voting
stock) or, if CSC Enterprises, Inc. is the Managing Partner of the
Partnership, the Corporation shall cease to own, directly or indirectly, at
least 80% of the voting stock of CSC Enterprises, Inc., or the rights and
powers of the Managing Partner shall be materially diminished in a manner
such that the Managing Partner shall cease to have substantially the same
ability to control the operations or policies of the Partnership as it has on
the date hereof; or
(iii) The Partnership shall transfer a majority of
its assets to any Person other than the Corporation or one or more
Subsidiaries of the Corporation of which the Corporation owns at least 80% of
the voting stock; or
(iv) The Corporation shall cease to directly or
indirectly (through its Subsidiaries of which it owns at least 80% of the
voting stock) own more than 50% of the outstanding partnership interest of
the Partnership;
then, and in any such event, the Partnership shall immediately prepay in full
the A Advances made to the Partnership, and shall immediately make an offer
to all Lenders which have made B Advances to the Partnership to prepay such B
Advances, and shall immediately prepay in full the B Advances of all Lenders
accepting such offer, and in the case of all Advances so prepaid the
Partnership will pay interest accrued to the date of prepayment and will
reimburse the Lenders in respect thereof pursuant to Section 9.04(b).
(c) Mandatory Prepayment Due to Reductions of
-----------------------------------------
Commitments. Each Borrower shall from time to time prepay the A Advances
-----------
made to such Borrower to the extent necessary so that the aggregate principal
amount of the Advances does not exceed the aggregate amount of the
Commitments of the Lenders then in effect (computed without regard to any B
Reduction).
20
<PAGE>
(d) Voluntary Prepayments of A Borrowings. Neither
-------------------------------------
Borrower shall have any right to prepay any principal amount of any A
Advances other than as provided in this subsection (d). Each Borrower may,
upon at least one Business Day's notice to the Agent in the case of Base Rate
Advances and at least three Business Days' notice to the Agent in the case of
Eurodollar Rate Advances stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given such Borrower shall,
prepay the outstanding principal amounts of the Advances made to such
Borrower comprising part of the same A Borrowing in whole or ratably in part;
provided, however, that (x) each partial prepayment shall be in an aggregate
-------- -------
principal amount not less than $5,000,000 and integral multiples of
$1,000,000 in excess thereof and (y) in the case of any such prepayment of
any Eurodollar Rate Advance, such Borrower shall pay all accrued interest to
the date of such prepayment on the portion of such Eurodollar Rate Advance
being prepaid and shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(b).
(e) Certain Obligations Several. Subject to the
---------------------------
obligations of the Guarantor under the Guaranty, neither Borrower shall have
any obligation to repay to any Lender any A Advance made by such Lender to
the other Borrower or to pay any interest on any A Advance made by such
Lender to the other Borrower.
Section 2.07 Interest on A Advances.
----------------------
Each Borrower shall pay interest accrued on the
principal amount of each A Advance that was made to such Borrower outstanding
from time to time from the date of such A Advance until such principal amount
shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such A Advance is a Base Rate
------------------
Advance, a rate per annum equal at all times to the Base Rate in effect from
time to time, payable in arrears on the last day of each March, June,
September and December during the term of this Agreement, commencing
September 30, 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
21
<PAGE>
be paid on such amount immediately prior to the date on which such amount
became due and (B) after the expiration of such Interest Period, 2% per annum
above the Base Rate in effect from time to time.
Section 2.08 Interest Rate Determination.
---------------------------
(a) Each Reference Bank agrees to furnish to the Agent
timely information for the purpose of determining each Adjusted Eurodollar
Rate. If any one or more of the Reference Banks shall not furnish such
timely information to the Agent for the purpose of determining any such
interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks, subject to
Section 2.02(b)(iv).
(b) The Agent shall give prompt notice to the Borrowers
and the Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.07(a) or 2.07(b), and the applicable rate, if any,
furnished by each Reference Bank for the purpose of determining the
applicable interest rate under Section 2.07(b).
Section 2.09 Voluntary Conversion or Continuation of
---------------------------------------
A Advances.
----------
(a) Each Borrower may on any Business Day, upon notice
given to the Agent not later than 12:00 noon (New York City time) on the
third Business Day prior to the date of the proposed Conversion or
continuance (a "Notice of Conversion/Continuation") and subject to the
provisions of Section 2.02(b), (1) Convert all Advances of one Type
comprising the same A Borrowing made to such Borrower into A Advances of
another Type and (2) upon the expiration of any Interest Period applicable to
A Advances which are Eurodollar Rate Advances made to such Borrower, continue
all (or, subject to Section 2.02(b), any portion of) such A Advances as
Eurodollar Rate Advances and the succeeding Interest Period(s) of such
continued A Advances 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
22
<PAGE>
continued as, or Converted into, a Eurodollar Rate Advance after the
expiration of any Interest Rate then in effect for that A Advance.
Section 2.10 Increased Costs.
---------------
(a) If, due to either (i) the introduction of or any
change (other than any change by way of imposition or increase of reserve
requirements in the case of Eurodollar Rate Advances included in the
Eurodollar Rate Reserve Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances made to
either Borrower, then such Borrower shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost. A reasonably detailed certificate as to the
amount and manner of calculation of such increased cost, submitted to such
Borrower and the Agent by such Lender, shall be conclusive and binding for
all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law
or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Agent), the
Borrowers shall immediately pay, jointly and severally, to the Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation
in the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A reasonably detailed certificate as
to such amounts and the manner of calculation thereof submitted to the
Borrowers 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
23
<PAGE>
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.10 or 2.12 or, to the extent the Termination Date
is not the same for all Lenders, pursuant to Section 2.06(a)) to the Lenders
for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to
such Lender for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon receipt of
principal or interest paid after an Event of Default and an acceleration or a
deemed acceleration of amounts due hereunder, the Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest ratably in accordance with each Lender's outstanding A
Advances and B Advances (other than amounts payable pursuant to Section 2.10
or 2.12) to the Lenders for the account of their respective Applicable
Lending Offices. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date specified in such
Assignment and Acceptance, the Agent shall make all payments hereunder in
respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date
directly between themselves.
(b) All computations of interest based on the Base Rate
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Adjusted
Eurodollar Rate or the Federal Funds Rate and of facility fees shall be made
by the Agent on the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last day) occurring
in the period for which such interest or such fees are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case
be included in the computation of payment of interest or facility fee, as the
case may be; provided, however, if such extension would cause payment of
-------- -------
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(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.
-----
24
<PAGE>
(a) Any and all payments by a Borrower hereunder shall be
made, in accordance with Section 2.11, free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, (i) taxes
---------
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is
organized or any political subdivision thereof or in which its principal
office is located, (ii) taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Lender's Applicable Lending Office
or any political subdivision thereof, (iii) taxes imposed upon or measured by
the overall net income of such Lender by the United States of America or any
political subdivision or taxing authority thereof or therein, and (iv) United
States income taxes (including withholding taxes with respect to payments
hereunder) payable with respect to payments hereunder under laws (including
without limitation any statute, treaty, ruling, determination or regulation)
in effect on the date hereof in the case of each Bank and on the effective
date of the Assignment and Acceptance pursuant to which it became a Lender in
the case of each other Lender (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If a Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or the Agent,
(i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.12) such Lender or the Agent (as the case
may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers jointly and severally
agree to pay any present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies which arise from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender and the
Agent for the full amount of Taxes or Other Taxes (to the extent specifically
attributable to Borrowings made by such Borrower) (including, without
limitation, any Taxes or Other Taxes (to the extent specifically attributable
to Borrowings made by such Borrower) imposed by any jurisdiction on amounts
payable under this Section 2.12) and the Borrowers jointly and severally will
indemnify each Lender and the Agent for the full amount of Taxes or Other
Taxes (to the extent not 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.
25
<PAGE>
(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-8BCI, 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 of
interest payable under this Agreement. If the form provided by a Lender at
the time such Lender first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero, withholding
tax at such rate shall be considered excluded from "Taxes" as defined in
Section 2.12(a).
(f) For any period with respect to which a Lender has
failed to provide a Borrower with the appropriate form described in Section
2.12(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under the first sentence
of subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.12(a) with respect to Taxes imposed by the
United States; provided, however, that should a Lender become subject to
-------- -------
Taxes because of its failure to deliver a form required hereunder, such
Borrower shall, at the expense of such Lender, take such steps as the Lender
shall reasonably request to assist the Lender to recover such Taxes.
(g) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 2.12 shall survive the payment in full of
principal and interest hereunder.
Section 2.13 Sharing of Payments, Etc.
------------------------
If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-
off, or otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.10 or 2.12 or, to the extent the Termination Date is
not the same for all Lenders, pursuant to Section 2.06(a)) in excess of its
ratable share of payments on account of the A Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the A Advances made by them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them,
provided,however, that if all or any portion of such 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
26
<PAGE>
2.13 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation
as fully as if such Lender were the direct creditor of the applicable
Borrower in the amount of such participation.
Section 2.14 Evidence of Debt.
----------------
(a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of each
Borrower to such Lender resulting from each Advance owing to such Lender from
time to time, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder. Each Borrower agrees that
upon notice by any Lender to such Borrower (with a copy of such notice to the
Agent) to the effect that a promissory note or other evidence of indebtedness
is required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the A Advances or the B
Advances owing to, or to be made by, such Lender, such Borrower shall
promptly execute and deliver to such Lender promissory notes or other
evidence of such indebtedness, in form and substance reasonably satisfactory
to such Borrower and such Lender, payable to the order of such Lender in a
principal amount equal, in the case of the A Advances, to the aggregate
principal amount of the Commitment of such Lender and, in the case of the B
Advances, to the outstanding principal amount of B Advances of such Lender;
provided, however, that the execution and delivery of such promissory note or
-------- -------
other evidence of indebtedness shall not be a condition precedent to the
making of any Advance under this Agreement.
(b) The Register maintained by the Agent pursuant to
Section 9.07(c) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the
date, amount and tenor, as applicable, of each Borrowing, the Borrower that
received the proceeds of such Borrowing, the Type of Advances comprising such
Borrowing and the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable
from each Borrower to each Lender hereunder, and (iv) the amount of any sum
received by the Agent from each Borrower hereunder and each Lender's share
thereof.
(c) The entries made in the Register shall be conclusive
and binding for all purposes, absent manifest error.
Section 2.15 Use of Proceeds.
---------------
(a) Advances shall be used by the Borrowers for
Commercial Paper backup, for Non-Hostile Acquisitions and for general
corporate purposes.
(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
27
<PAGE>
Securities Exchange Act of 1934, in each case as in effect on the date or
dates of such Advances and such use of proceeds.
Section 2.16 Extension of the Commitment Termination
---------------------------------------
Date.
----
The Borrowers may, not later than 30
days prior to each anniversary of the Amended and Restated Credit Agreement
Effective Date (the "Current Anniversary Date"), and not more than once in
any calendar year, commencing not later than 30 days prior to the first
anniversary of the Amended and Restated Credit Agreement Effective Date, from
time to time jointly request that the Commitment Termination Date for all
Eligible Lenders (as defined below) be extended by delivering to the Agent a
copy of an extension request signed by both Borrowers (an "Extension
Request") in substantially the form of Exhibit D hereto. The Agent shall
promptly notify each Lender of its receipt of such Extension Request. On or
prior to the fifteenth day (the "Determination Date") prior to the Current
Anniversary Date, each Eligible Lender shall notify the Agent and the
Borrowers of its willingness or unwillingness to extend its Commitment
Termination Date hereunder. Any Eligible Lender that shall fail to so notify
the Agent and the Borrowers on or prior to the Determination Date shall be
deemed to have declined to so extend. In the event that, on or prior to the
Determination Date, Eligible Lenders representing more than 50% of the
aggregate amount of the Commitments of all Eligible Lenders then in effect
shall consent to such extension, the Agent shall so advise the Lenders and
the Borrowers, and, subject to execution of documentation evidencing such
extension and consents, the Commitment Termination Date of each Eligible
Lender (each a "Consenting Lender") that has consented on or prior to the
Determination Date to so extend shall be extended to the date indicated in
the Extension Request. Thereafter, (i) for each Consenting Lender, the term
"Commitment Termination Date" as used herein and in any promissory note
executed and delivered by the Borrowers pursuant to Section 2.14 hereof,
shall at all times refer to such date, unless it is later extended pursuant
to this Section 2.16, and (ii) for each Lender that is not an Eligible Lender
and for each Eligible Lender that either has declined on or prior to the
Determination Date to so extend or is deemed to have so declined, the term
"Commitment Termination Date" shall at all times refer to the date which was
the Commitment Termination Date of such Lender immediately prior to the
delivery to the Agent of such Extension Request. In the event that, as of
the Determination Date, the Consenting Lenders represent 50% or less of the
aggregate amount of the Commitments of all Eligible Lenders then in effect,
the Agent shall so advise the Lenders and the Borrowers, and none of the
Lenders' Commitment Termination Dates shall be extended to the date indicated
in the Extension Request and each Lender's Commitment Termination Date shall
continue to be the date which was the Commitment Termination Date of such
Lender immediately prior to the delivery to the Agent of such Extension
Request. For purposes of this Section 2.16, the term "Eligible Lenders"
means, with respect to any Extension Request, (i) all Lenders if no Lender's
Commitment Termination Date had been extended pursuant to this Section 2.16
prior to the delivery to the Agent of such Extension Request, and (ii) in all
other cases, those Lenders which had extended their Commitment Termination
Date in the most recent extension of any Commitment Termination Date effected
pursuant to this Section 2.16.
Section 2.17 Substitution of Lenders.
-----------------------
If any Lender requests compensation from
a Borrower under Section 2.10(a) or (b) or if any Lender declines to extend
its Commitment Termination Date pursuant to Section 2.16, the Borrowers shall
have the right,
28
<PAGE>
with the assistance of the Agent, to seek one or more substitute banks or
financial institutions (which may be one or more of the Lenders) reasonably
satisfactory to the Agent and the Borrowers to purchase the Advances and
assume the Commitments of such Lender, and the Borrowers, the Agent, such
Lender, and such substitute banks or financial institutions shall execute and
deliver an appropriately completed Assignment and Acceptance pursuant to
Section 9.07(a) hereof to effect the assignment of rights to and the
assumption of obligations by such substitute banks or financial institutions;
provided that such requesting Lender shall be entitled to (i) compensation
--------
under Section 2.10 for any costs incurred by it prior to its replacement,
(ii) payment of all A Advances of such Lender then outstanding and all
interest and fees accrued to the date of such payment, and (iii) if any
Eurodollar Rate Advances of such Lender are then outstanding, any
reimbursement which would be payable under Section 9.04(b) in connection with
a prepayment of such Eurodollar Rate Advances on such date.
Section 2.18 Increased Commitments; Additional
---------------------------------
Lenders.
-------
(a) No more than once per year from the 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 and warranties of the Partnership and
the Corporation contained in Article IV are correct on and as of the date of
such increase, before and after giving effect to such increase, as though
made on and as of such date, except to the extent that any such
representation or warranty expressly relates only to an earlier date, in
which case they were correct as of such earlier date; (iii) no Event of
Default or Potential Event of Default exists and is continuing ; (iv) on the
date of such increase, (x) there shall be no A Advances outstanding or all
Interest Periods shall have ended and (y) and all accrued and unpaid interest
on the A Advances and all accrued and unpaid Facility Fees shall have been
paid in full and (v) after any such increase, no Lender's Commitment shall
exceed 50% of the aggregate amount of the Commitments. Each Lender party to
this Agreement at such time shall have the right (but no obligation), for a
period of fifteen (15) days following receipt of such notice, to elect by
notice to the Borrower and the Administrative Agent to increase its
Commitment by a principal amount which bears the same ratio to the Increased
Commitments as its then Commitment bears to the aggregate Commitments then
existing.
(b) If any Lender party to this Agreement shall not elect
to increase its Commitment pursuant to subsection (a) of this Section, the
Borrowers may designate another lender or other lenders (which may be, but
need not be, one or more of the existing Lenders) which at the time agree to
(i) in the case of any such lender that is an existing Lender, increase its
Commitment and (ii) in the case of any other such lender (an "Additional
Lender"), become a
29
<PAGE>
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 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 for
30
<PAGE>
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) of the Existing Agreement;
(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)
31
<PAGE>
on the date of such A Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of A Borrowing and the acceptance
by the applicable Borrower of the proceeds of such A Borrowing shall
constitute a representation and warranty by the Partnership and the
Corporation that on the date of such A Borrowing such statements are true):
(a) The representations and warranties of the Partnership
and the Corporation contained in Article IV are correct on and as of the date
of such A Borrowing, before and after giving effect to such A Borrowing and
to the application of the proceeds therefrom, as though made on and as of
such date, except to the extent that any such representation or warranty
expressly relates only to an earlier date, in which case they were correct as
of such earlier date; and
(b) No event has occurred and is continuing, or would
result from such A Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or a Potential Event of
Default.
Section 3.03 Conditions Precedent to Each
----------------------------
B Borrowing.
-----------
The obligation of each Lender which is
to make a B Advance on the occasion of a B Borrowing (including the initial B
Borrowing) to make such B Advance as part of such B Borrowing is subject to
the conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of B Borrowing with respect thereto in accordance with
Section 2.03 and (ii) on the date of such B Borrowing the following
statements shall be true (and each of the giving of the applicable Notice of
B Borrowing and the acceptance by the applicable Borrower of the proceeds of
such B Borrowing shall constitute a representation and warranty 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,
33
<PAGE>
except for such taxes as are being contested in good faith and by proper
proceedings and with respect to which appropriate reserves are being
maintained by the Partnership or any such Subsidiary, as the case may be.
(i) Governmental Regulation. The Partnership is not
-----------------------
subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Interstate Commerce Act or the Investment Company
Act of 1940, each as amended, or to any Federal or state statute or
regulation limiting its ability to incur indebtedness for money borrowed. No
Subsidiary of the Partnership is subject to any regulation that would limit
the ability of the Partnership to enter into or perform its obligations under
this Agreement.
(j) ERISA.
(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
34
<PAGE>
any material respect than the insurance the Partnership and its Subsidiaries
have carried in accordance with their past practices or (B) prudent given the
nature of the business of the Partnership and its Subsidiaries and the
prevailing practice among companies similarly situated or (ii) maintain a
plan or plans of self-insurance to such extent and covering such risks as is
usual for companies of comparable size engaged in the same or similar
business which plan or plans provide for, among other things, adequate
reserves for the risks being self-insured.
(m) Environmental Matters. (i) The Partnership and
---------------------
each of its Subsidiaries is in compliance in all material respects with all
Environmental Laws the non-compliance with which could reasonably be expected
to have a material adverse effect on the financial condition or operations of
the Partnership and its Subsidiaries, taken as a whole, and (ii) there has
been no "release or threatened release of a hazardous substance" (as defined
by the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601 et seq.) or any other release,
emission or discharge into the environment of any hazardous or toxic
substance, pollutant or other materials from the Partnership's or its
Subsidiaries' property other than as permitted under applicable Environmental
Law and other than those which would 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
35
<PAGE>
material adverse effect on the Corporation. Each Subsidiary of the
Corporation is duly organized and validly existing under the laws of the
jurisdiction of its incorporation or formation. Each such Subsidiary is duly
qualified to do business in all other jurisdictions which require such
qualification except to the extent that failure to so qualify would not have
a material adverse effect on such Subsidiary.
(b) Due Authorization, etc. The execution, delivery and
----------------------
performance by the Corporation of this Agreement are within the Corporation's
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Corporation's certificate of
incorporation or bylaws or (ii) law or any material contractual restriction
binding on or affecting the Corporation.
(c) Governmental Consent. No authorization or approval
--------------------
or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution, delivery and
performance by the Corporation of this Agreement.
(d) Validity. This Agreement is the legal, valid and
--------
binding obligation of the Corporation enforceable against the Corporation in
accordance with its terms, subject to the 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.
36
<PAGE>
(h) Payment of Taxes. The Corporation and each of its
----------------
Subsidiaries have filed or caused to be filed all material tax returns
(federal, state, local and foreign) required to be filed and paid all
material amounts of taxes shown thereon to be due, including interest and
penalties, except for such taxes as are being contested in good faith and by
proper proceedings and with respect to which appropriate reserves are being
maintained by the Corporation or any such Subsidiary, as the case may be.
(i) Governmental Regulation. The Corporation is not
-----------------------
subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Interstate Commerce Act or the Investment Company
Act of 1940, each as amended, or to any Federal or state statute or
regulation limiting its ability to incur indebtedness for money borrowed. No
Subsidiary of the Corporation is subject to any regulation that would limit
the ability of the Partnership or the Corporation to enter into or perform
their respective obligations under this Agreement.
(j) ERISA.
(i) No ERISA Event which might result in
liability (other than for premiums payable under Title IV of ERISA) has
occurred or is reasonably expected to occur with respect to any Pension Plan.
(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.
37
<PAGE>
(l) Insurance. The Corporation and its Subsidiaries (i)
---------
have in full force insurance coverage of their respective properties, assets
and business (including casualty, general liability, products liability and
business interruption insurance) that is (A) no less protective in any
material respect than the insurance the Corporation and its Subsidiaries have
carried in accordance with their past practices or (B) prudent given the
nature of the business of the Corporation and its Subsidiaries and the
prevailing practice among companies similarly situated or (ii) maintain a
plan or plans of self-insurance to such extent and covering such risks as is
usual for companies of comparable size engaged in the same or similar
business which plan or plans provide for, among other things, adequate
reserves for the risks being self-insured.
(m) Environmental Matters. (i) The Corporation and each
---------------------
of its Subsidiaries is in compliance in all material respects with all
Environmental Laws the non-compliance with which could reasonably be expected
to have a material adverse effect on the financial condition or operations of
the Corporation and its Subsidiaries, taken as a whole, and (ii) there has
been no "release or threatened release of a hazardous substance" (as defined
by the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601 et seq.) or any other release,
-- ---
emission or discharge into the environment of any hazardous or toxic
substance, pollutant or other materials from the Corporation's or its
Subsidiaries' property other than as permitted under applicable Environmental
Law and other than those which would not have a material adverse effect on
the financial condition or operations of the Corporation and its
Subsidiaries, taken as a whole. Other than disposals for which the
Corporation has been indemnified in full, all "hazardous waste" (as defined
by the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.
(1976) and the regulations thereunder, 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.
38
<PAGE>
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the
----------------------------
Partnership.
-----------
The Partnership covenants and agrees
that the Partnership will, so long as any Advance shall remain unpaid or
any Lender shall have any Commitment hereunder, unless the Majority Lenders
shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of
-------------------------
its Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, (i) complying with
all Environmental Laws and (ii) paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith, except where failure
to so comply would not have a material adverse effect on the business,
condition (financial or otherwise), operations or properties of the
Partnership and its Subsidiaries, taken as a whole.
(b) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as available and in any event within
110 days after the end of each fiscal year of the Partnership, a copy of the
annual audit report for such year for the Partnership and its Subsidiaries,
containing financial statements (including a consolidated balance sheet,
consolidated statements of income and partners' equity and cash flows of the
Partnership and its Subsidiaries) for such year, accompanied by an opinion of
Deloitte & Touche or other nationally recognized independent public
accountants. The opinion shall be unqualified (as to going concern, scope of
audit and disagreements over the accounting or other treatment of offsets)
and shall state that such consolidated financial statements present fairly
the financial position of the Partnership and its Subsidiaries as at the
dates indicated and the results of their operations and cash flow for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years (except as stated therein) and that the examination by such
accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;
(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;
39
<PAGE>
(iii) as soon as possible and in any event within
five days after the occurrence of each Event of Default and each Potential
Event of Default, continuing on the date of such statement, a statement of an
authorized financial officer of the Partnership setting forth details of such
Event of Default or Potential Event of Default and the action which the
Partnership has taken and proposes to take with respect thereto;
(iv) promptly after any significant change in
accounting policies or reporting practices, notice and a description in
reasonable detail of such change;
(v) promptly and in any event within 30 days
after the Partnership or any ERISA Affiliate knows or has reason to know that
any ERISA Event referred to in clause (i) of the definition of ERISA Event
with respect to any Pension Plan has occurred which might result in liability
to the PBGC a statement of the chief accounting officer of the Partnership
describing such ERISA Event and the action, if any, that the Partnership or
such ERISA Affiliate has taken or proposes to take with respect thereto;
(vi) promptly and in any event within 10 days
after the Partnership or any ERISA Affiliate knows or has reason to know that
any ERISA Event (other than an ERISA Event referred to in (v) above) with
respect to any Pension Plan has occurred which might result in liability to
the PBGC, a statement of the chief accounting officer of the Partnership
describing such ERISA Event and the action, if any, that the Partnership or
such ERISA Affiliate has taken or proposes to take with respect thereto;
(vii) promptly and in any event within five
Business Days after receipt thereof by the Partnership or any ERISA Affiliate
from the PBGC, copies of each notice from the PBGC of its intention to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan;
(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
40
<PAGE>
other communication from a governmental authority alleging violations of or
noncompliance with any Environmental Law which could reasonably be expected
to have a material adverse effect on the financial condition of the
Partnership and its Subsidiaries, taken as a whole;
(xi) promptly after any change in any Rating, a
notice of such change, which notice shall specify the new Rating, the date on
which such change was publicly announced (in the case of a public rating) or
disclosed to the Corporation (in the case of a private rating), and such
other information with respect to such change as any Lender through the Agent
may reasonably request; and
(xii) such other information respecting the
condition or operations, financial or otherwise, of the Partnership or any of
its Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(c) Partnership Existence, Etc. The Partnership will,
--------------------------
and will cause each of its Subsidiaries to, at all times maintain its
fundamental business and preserve and keep in full force and effect its
partnership existence (except as permitted under Section 5.02(b) hereof) and
all rights, franchises and licenses necessary or desirable in the normal
conduct of its business.
(d) Maintenance of Insurance. The Partnership will and
------------------------
will cause each of its Subsidiaries to maintain insurance with responsible
and reputable insurance companies or associations in such amounts and
covering such risks (i) as are usually insured by companies engaged in
similar businesses and (ii) with responsible and reputable insurance
companies. Notwithstanding the foregoing, the Partnership and its
Subsidiaries may maintain a plan or plans of self-insurance to such extent
and covering such risks as is usual for companies of comparable size engaged
in the same or similar business, which plans shall include, among other
things, adequate reserves for the risks that are self-insured. On request
the Partnership will advise the Agent and the Lenders concerning any such
plan or plans for self-insurance.
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;
41
<PAGE>
(ii) Liens in favor of the United States of
America to secure amounts paid to the Partnership or any of its Subsidiaries
as advance or progress payments under government contracts entered into by it
so long as such Liens cover only (x) special bank accounts into which only
such advance or progress payments are deposited and (y) supplies covered by
such government contracts and material and other property acquired for or
allocated to the performance of such government contracts;
(iii) attachment, judgment and other similar Liens
arising in connection with legal proceedings, provided that the execution or
--------
other enforcement of such Liens is effectively stayed and the claims secured
thereby are being contested in good faith by appropriate proceedings, and
provided that any such judgment does not constitute an Event of Default;
--------
(iv) Liens on accounts receivable resulting from
the sale of such accounts receivable;
(v) Liens on assets of any Subsidiary of the
Partnership existing at the time such Person becomes a Subsidiary (other than
any such Lien created in contemplation of becoming a Subsidiary);
(vi) purchase money Liens upon or in any property
acquired or held by the Partnership or any Subsidiary in the ordinary course
of business to secure the purchase price of such property or to secure Debt
incurred solely for the purpose of financing the acquisition of such property
(provided that the amount of Debt secured by such Lien does not exceed 100%
of the purchase price of such property and transaction costs relating to such
acquisition) and Liens existing on such property at the time of its
acquisition (other than any such Lien created in contemplation of such
acquisition); and the interest of the lessor thereof in any property that is
subject to a Capital Lease;
(vii) Liens, other than Liens described in clauses
(i) through (vi) and in clause (ix), to secure Debt not in excess of
$75,000,000 principal amount at any time outstanding;
(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.
42
<PAGE>
(b) Restrictions on Fundamental Changes. The Partnership
-----------------------------------
will not, and will not permit any of its Subsidiaries to, merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or a
substantial portion of its assets (whether now owned or hereafter acquired)
to any Person (other than the Corporation or any Subsidiary of the
Corporation, so long as the Corporation, directly or indirectly, owns 80% or
more of the voting stock thereof), or enter into any partnership, joint
venture, syndicate, pool or other combination, unless (a) no Event of Default
or Potential Event of Default has occurred and is continuing or would result
therefrom and (b) any prepayment required under Section 2.06(b) has been
made.
(c) Plan Terminations. The Partnership will not, and
-----------------
will not permit any ERISA Affiliate to, terminate any Pension Plan so as to
result in liability of the Partnership or any ERISA Affiliate to the PBGC in
excess of $15,000,000, or permit to exist any occurrence of an event or
condition which reasonably presents a material risk of a termination by the
PBGC of any Pension Plan with respect to which the Partnership or any ERISA
Affiliate would, in the event of such termination, incur liability to the
PBGC in excess of $15,000,000.
(d) Employee Benefit Costs and Liabilities. The
--------------------------------------
Partnership will not, and will not permit any ERISA Affiliate to, create or
suffer to exist, (i) any Insufficiency with respect to a Pension Plan or any
Withdrawal Liability with respect to a Multiemployer Plan if, immediately
after giving effect thereto, such Insufficiencies and Withdrawal Liabilities
of all Pension Plans and Multiemployer Plans, respectively, of the
Partnership and its ERISA Affiliates exceeds $25,000,000 or (ii) except as
provided in Section 4980B of the Code and except as provided under the terms
of any employee welfare benefit plans provided pursuant to the terms of
collective bargaining agreements, any employee benefit plan to provide health
or welfare benefits (through the purchase of insurance or otherwise) for any
retired or former employee of the Partnership or any of its ERISA Affiliate
unless the Partnership and/or any of its ERISA Affiliates are permitted to
terminate such benefits pursuant to the terms of such employee benefit plan.
Section 5.03 Affirmative Covenants of the
----------------------------
Corporation.
-----------
The Corporation covenants and agrees
that the Corporation will, unless and until all of the Advances shall have
been indefeasibly paid in full, the Commitments of the Lenders shall have
terminated and all of the Guarantied Obligations shall have been indefeasibly
paid in full, unless Majority Lenders shall otherwise consent in writing:
(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.
43
<PAGE>
(b) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as available and in any event within
60 days of the end of each of the first three fiscal quarters of each fiscal
year of the Corporation, a copy of the quarterly report for such quarter for
the Corporation and its Subsidiaries, containing financial statements
(including a consolidated balance sheet, consolidated statements of income
and stockholders' equity and cash flows of the Corporation and its
Subsidiaries) for such quarter;
(ii) as soon as available and in any event within
110 days after the end of each fiscal year of the Corporation, a copy of the
annual audit report for such year for the Corporation and its Subsidiaries,
containing financial statements (including a consolidated balance sheet,
consolidated statements of income and stockholders' equity and cash flows of
the Corporation and its Subsidiaries) for such year, accompanied by an
opinion of Deloitte & Touche or other nationally recognized independent
public accountants. The opinion shall be unqualified (as to going concern,
scope of audit and disagreements over the accounting or other treatment of
offsets) and shall state that such consolidated financial statements present
fairly the financial position of the Corporation and its Subsidiaries as at
the dates indicated and the results of their operations and cash flow for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years (except as stated therein) and that the examination by such
accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;
(iii) together with each delivery of the report of
the Corporation and its Subsidiaries pursuant to subsection (i) or subsection
(ii) above, a compliance certificate for the quarter or year, as applicable,
executed by an authorized financial officer of the Corporation (A) stating,
in the case of the financial statements delivered under Section 5.03(b)(i)
for such quarter, that such financial statements fairly present the financial
condition of the Corporation and its Subsidiaries as at the dates indicated
and the results of operations of the Corporation and its Subsidiaries and
cash flow for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except as otherwise stated therein),
subject to changes resulting from audit and normal year-end adjustment, (B)
stating that the signer has reviewed the terms of this Agreement and has
made, or caused to be made under his or her supervision, a review in
reasonable detail of the transactions and condition of the Corporation and
its Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during or at
the end of such accounting period, and that the signer does not have
knowledge of the existence as at the date of the compliance certificate, of
any condition or event that constitutes an Event of Default or a Potential
Event of Default 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).
44
<PAGE>
(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
45
<PAGE>
meaning of Title IV of ERISA or (z) the amount of liability incurred, or
expected to be incurred, by the Corporation or any ERISA Affiliate in
connection with any event described in clause (w), (x) or (y) above;
(xi) promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports
that the Corporation or any of its Subsidiaries sends to its stockholders
generally, and copies of all regular, periodic and special reports, and all
registration statements, that the Corporation or any of its Subsidiaries
files with the SEC or any governmental authority that may be substituted
therefor, or with any national securities exchange;
(xii) promptly after the furnishing thereof,
copies of any statement or report furnished to any other holder of the
securities of the Corporation or any of its Subsidiaries pursuant to the
terms of any indenture, loan or credit or similar agreement and not otherwise
required to be furnished to the Lenders pursuant to any other clause of this
Section 5.03.
(xiii) promptly after the commencement thereof,
notice of all material actions, suits and proceedings before any court or
government department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting the Corporation or any of its Subsidiaries, of
the type described in Section 4.02(f).
(xiv) promptly after the occurrence thereof,
notice of (A) any event which makes any of the representations contained in
Section 4.02(l) inaccurate in any material respect or (B) the receipt by the
Corporation of any notice, order, directive or other communication from a
governmental authority alleging violations of or noncompliance with any
Environmental Law which could reasonably be expected to have a material
adverse effect on the financial condition of the Corporation and its
Subsidiaries, taken as a whole;
(xv) promptly after any change in any Rating, a
notice of such change, which notice shall specify the new Rating, the date on
which such change was publicly announced (in the case of a public rating) or
was disclosed to the Corporation (in the case of a private rating), and such
other information with respect to such change as any Lender through Agent may
reasonably request; and
(xvi) such other information respecting the
condition or operations, financial or otherwise, of the Corporation or any of
its Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(c) Corporate Existence, Etc. The Corporation will, and
------------------------
will cause each of its material Subsidiaries to, at all times maintain its
fundamental business and preserve and keep in full force and effect its
corporate existence (except as permitted under Section 5.04(b)) and all
rights, franchises and licenses necessary or desirable in the normal conduct
of its business.
46
<PAGE>
(d) Maintenance of Insurance. The Corporation will and
------------------------
will cause each of its Subsidiaries to maintain insurance with responsible
and reputable insurance companies or associations in such amounts and
covering such risks (i) as are usually insured by companies engaged in
similar businesses and (ii) with responsible and reputable insurance
companies or associations. Notwithstanding the foregoing, the Corporation
and its Subsidiaries may maintain a plan or plans of self-insurance to such
extent and covering such risks as is usual for companies of comparable size
engaged in the same or similar business, which plans shall include, among
other things, adequate reserves for the risks that are self-insured. On
request the Corporation will advise the Agent and the Lenders concerning any
such plan or plans for self-insurance.
(e) Relationship to the Partnership. The Corporation
-------------------------------
shall keep itself informed as to the status of the transactions contemplated
or referred to herein, the Partnership's financial status and its ability to
perform its obligations under this Agreement.
Section 5.04 Negative Covenants of the Corporation.
-------------------------------------
The Corporation covenants and agrees
that, unless and until all of the Advances shall have been indefeasibly paid
in full, the Commitments of the Lenders shall have terminated and all of the
Guarantied Obligations shall have been indefeasibly paid in full, unless
Majority Lenders shall otherwise consent in writing:
(a) Liens, Etc. The Corporation will not create or
----------
suffer to exist, or permit any of its Subsidiaries to create or suffer to
exist, any Lien, upon or with respect to any of its properties, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, in each case to secure or provide for
the payment of any Debt of any Person, unless the Corporation's obligations
hereunder shall be secured equally and ratably with, or prior to, any such
Debt; provided however that the foregoing restriction shall not apply to the
-------- -------
following Liens which are permitted:
(i) set-off rights, arising by operation of law
or under any contract entered into in the ordinary course of business, and
bankers' Liens, Liens of carriers, warehousemen, mechanics, workmen,
employees, materialmen and other Liens imposed by law;
(ii) Liens in favor of the United States of
America to secure amounts paid to the Corporation or any of its Subsidiaries
as advance or progress payments under government contracts entered into by it
so long as such Liens cover only (x) special bank accounts into which only
such advance or progress payments are deposited and (y) supplies covered by
such government contracts and material and other property acquired for or
allocated to the performance of such government contracts;
(iii) attachment, judgment and other similar Liens
arising in connection with legal proceedings, provided that the execution or
--------
other enforcement of such Liens is effectively stayed and the claims secured
thereby are being contested in good faith by appropriate proceedings, and
provided that any such judgment does not constitute an Event of Default;
--------
47
<PAGE>
(iv) Liens on accounts receivable resulting from
the sale of such accounts receivable;
(v) Liens on assets of any Subsidiary of the
Corporation existing at the time such Person becomes a Subsidiary (other than
any such Lien created in contemplation of becoming a Subsidiary);
(vi) purchase money Liens upon or in any property
acquired or held by the Corporation or any Subsidiary in the ordinary course
of business to secure the purchase price of such property or to secure Debt
incurred solely for the purpose of financing the acquisition of such property
(provided that the amount of Debt secured by such Lien does not exceed 100%
of the purchase price of such property and transaction costs relating to such
acquisition) and Liens existing on such property at the time of its
acquisition (other than any such Lien created in contemplation of such
acquisition); and the interest of the lessor thereof in any property that is
subject to a Capital Lease;
(vii) Liens, other than Liens described in clauses
(i) through (vi) and in clause (ix), to secure Debt not in excess of an
aggregate of $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.
48
<PAGE>
(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.
(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
49
<PAGE>
(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 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
50
<PAGE>
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 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
51
<PAGE>
(k) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities and Exchange Act
of 1934, as amended), directly or indirectly, of securities of the
Corporation (or other securities convertible into such securities)
representing 35% or more of the combined voting power of all securities of
the Corporation entitled to vote in the election of directors, other than
securities having such power only by reason of the happening of a
contingency; or
(l) The Corporation or any of its Subsidiaries shall be
suspended or debarred by any governmental entity from entering into any
government contract or government subcontract from otherwise engaging in any
business relating to government contracts or from participation in government
non-procurement programs, and such suspension or debarment could reasonably
be expected to have a material adverse effect on the business, condition
(financial or otherwise), operations or properties of the Corporation and its
Subsidiaries, taken as a whole;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Borrowers, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are here expressly waived by the Borrowers; provided, however, that in
-------- -------
the event of an actual or deemed entry of an order for relief with respect to
the Corporation, the Partnership or any of their respective Subsidiaries
under the Federal Bankruptcy Code, (A) the obligation of each Lender to make
Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by the Borrowers.
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.
52
<PAGE>
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 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
53
<PAGE>
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 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
54
<PAGE>
and expenses of counsel), indemnities and liabilities of whatsoever nature
now or hereafter made, incurred or created, whether absolute or contingent,
liquidated or unliquidated, whether due or not due, arising under or in
connection with this Agreement, including those arising under successive
borrowing transactions under this Agreement which shall either continue such
obligations of the Partnership or from time to time renew them after they
have been satisfied; and
(b) those expenses set forth in Section 8.07 hereof.
This Article VIII, as it may be amended, amended and restated, supplemented
or otherwise modified from time to time, is sometimes referred to herein as
the "Guaranty" or this "Guaranty".
Section 8.02 Liability of the Guarantor.
--------------------------
The Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes
a legal or equitable discharge of a guarantor or surety other than
indefeasible payment in full of the Guarantied Obligations. In furtherance
of the foregoing and without limiting the generality thereof, the Guarantor
agrees as follows:
(a) This Guaranty is a guaranty of payment when due and
not of collectibility.
(b) The obligations of the Guarantor hereunder are
independent of the obligations of the Partnership hereunder and the
obligations of any other guarantor of the obligations of the Partnership
hereunder, and a separate action or actions may be brought and prosecuted
against the Guarantor whether or not any action is brought against the
Partnership or any of such other guarantors and whether or not the
Partnership is joined in any such action or actions.
(c) The Guarantor's payment of a portion, but not all, of
the Guarantied Obligations shall in no way limit, affect, modify or abridge
the Guarantor's liability for any portion of the Guarantied Obligations which
has not been paid. Without limiting the generality of the foregoing, if
Agent is awarded 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,
55
<PAGE>
with or without consideration, any security for payment of the Guarantied
Obligations, any other guaranties of the Guarantied Obligations, or any other
obligation of any Person with respect to the Guarantied Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of
Agent or any Lender in respect of this Guaranty or the Guarantied Obligations
and direct the order or manner of sale thereof, or exercise any other right
or remedy that Agent or Lenders, or any of them, may have against any such
security, as Agent in its discretion may determine consistent with this
Agreement and any applicable security agreement, including foreclosure on any
such security pursuant to one or more judicial or non-judicial sales, whether
or not every aspect of any such sale is commercially reasonable, and even
though such action operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of the Guarantor
against the Partnership or any security for the Guarantied Obligations; and
(vi) exercise any other rights available to it hereunder.
(e) This Guaranty and the obligations of the Guarantor
hereunder shall be valid and enforceable and shall not be subject to any
reduction, limitation, impairment, discharge or termination for any reason
(other than indefeasible payment in full of the Guarantied Obligations),
including without limitation the occurrence of any of the following, whether
or not the Guarantor shall have had notice or knowledge of any of them: (i)
any failure or omission to assert or enforce or agreement or election not to
assert or enforce, or the stay or enjoining, by order of court, by operation
of law or otherwise, of the exercise or enforcement of, any claim or demand
or any right, power or remedy (whether arising hereunder, at law, in equity
or otherwise) with respect to the Guarantied Obligations or any agreement
relating thereto, or with respect to any other guaranty of or security for
the payment of the Guarantied Obligations; (ii) any rescission, waiver,
amendment or modification of, or any consent to departure from, any of the
terms or provisions (including without limitation provisions relating to
events of default) of this Agreement, or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guarantied
Obligations, in each case whether or not in accordance with the terms of this
Agreement or any agreement relating to such other guaranty or security; (iii)
the 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.
56
<PAGE>
Section 8.03 Waivers by the Guarantor.
------------------------
The Guarantor hereby waives, for the
benefit of Lenders and Agent:
(a) any right to require Agent or Lenders, as a condition
of payment or performance by the Guarantor, to (i) proceed against the
Partnership, any other guarantor of the Guarantied Obligations or any other
Person, (ii) proceed against or exhaust any security held from the
Partnership, any other guarantor of the Guarantied Obligations or any other
Person, (iii) proceed against or have resort to any balance of any deposit
account or credit on the books of Agent or any Lender in favor of the
Partnership or any other Person, or (iv) pursue any other remedy in the power
of Agent or any Lender whatsoever;
(b) any defense arising by reason of the incapacity, lack
of authority or any disability or other defense of the Partnership including,
without limitation, any defense based on or arising out of the lack of
validity or the unenforceability of the Guarantied Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of the Partnership from any cause other than indefeasible payment
in full of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the principal;
(d) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this Guaranty
and any legal or equitable discharge of the Guarantor's obligations
hereunder, (ii) the benefit of any statute of limitations affecting the
Guarantor's liability hereunder or the enforcement hereof, and (iii)
promptness, diligence and any requirement that Agent or any Lender protect,
secure, perfect or insure any security interest or lien or any property
subject thereto;
(e) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including
acceptance of this Guaranty, notices of default hereunder or any agreement or
instrument related thereto, notices of any renewal, extension or modification
of the Guarantied Obligations or any agreement related thereto, notices of
any extension of credit to the Partnership and notices of any of the matters
referred to in Section 8.02 and any right to consent to any thereof; and
(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
57
<PAGE>
operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. Section 362(a)), the Guarantor will forthwith pay, or cause to be
paid, in cash, to Agent for the benefit of Lenders, an amount equal to the
sum of the unpaid principal amount of all Guarantied Obligations then due as
aforesaid, accrued and unpaid interest on such Guarantied Obligations
(including, without limitation, interest which, but for the filing of a
petition in bankruptcy with respect to the Partnership, would have accrued on
such Guarantied Obligations, whether or not a claim is allowed against the
Partnership for such interest in any such bankruptcy proceeding) and all
other Guarantied Obligations then owed to Agent and/or Lenders as aforesaid.
Section 8.05 Subrogation.
-----------
Until the Guarantied Obligations shall
have been indefeasibly paid in full, the Guarantor shall withhold exercise of
(a) any right of subrogation, (b) any right of contribution the Guarantor may
have against any other guarantor of the Guarantied Obligations, (c) any right
to enforce any remedy which Agent or any Lender now has or may hereafter have
against the Partnership or (d) any benefit of, and any right to participate
in, any security now or hereafter held by Agent or any Lender. The Guarantor
further agrees that, to the extent that its agreement to defer exercising any
of its rights of subrogation and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation the Guarantor may have against the Partnership or
against any collateral or security, and any rights of contribution the
Guarantor may have against any other guarantor, shall be junior and
subordinate to any rights Agent or Lenders may have against the Partnership,
to all right, title and interest Agent or Lenders may have in any such
collateral or security, and to any right Agent or Lenders may have against
such other guarantor. Agent, on behalf of Lenders, may use, sell or dispose
of any item of collateral or security as it sees fit without regard to any
subrogation rights the Guarantor may have, and upon any such disposition or
sale any rights of subrogation the Guarantor may have shall terminate. If
any amount shall be paid to the Guarantor on account of such subrogation
rights at any time when all Guarantied Obligations shall not have been paid
in full, such amount shall be held in trust for Agent on behalf of Lenders
and shall forthwith be paid over to Agent for the benefit of Lenders to be
credited and applied against the Guarantied Obligations in accordance with
the terms of this Agreement or any applicable security agreement.
Section 8.06 Subordination of Other Obligations.
----------------------------------
Any indebtedness of the Partnership or
any Subsidiary of the Partnership now or hereafter held by the Guarantor is
hereby subordinated in right of payment to the Guarantied Obligations, and
any such 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
58
<PAGE>
Agent or any Lender in connection with the enforcement of or preservation of
any rights under this Guaranty.
Section 8.08 Continuing Guaranty; Termination of
-----------------------------------
Guaranty.
---------
This Guaranty is a continuing guaranty
and shall remain in effect until all of the Guarantied Obligations shall have
been indefeasibly paid in full and the Commitments of all Lenders shall have
terminated.
Section 8.09 Authority of the Guarantor or the
---------------------------------
Partnership.
-----------
It is not necessary for Lenders or Agent
to inquire into the capacity or powers of the Guarantor or the Partnership or
the officers, directors or any agents acting or purporting to act on behalf
of any of them.
Section 8.10 Financial Condition of the Partnership.
--------------------------------------
Any Advances may be granted to the
Partnership or continued from time to time without notice to or authorization
from Guarantor regardless of the financial or other condition of the
Partnership at the time of any such grant or continuation. Lenders and Agent
shall have no obligation to disclose or discuss with the Guarantor their
assessment, or the Guarantor's assessment, of the financial condition of the
Partnership. The Guarantor has adequate means to obtain information from the
Partnership on a continuing basis concerning the financial condition of the
Partnership and its ability to perform its obligations hereunder, and the
Guarantor assumes the responsibility for being and keeping informed of the
financial condition of the Partnership and of all circumstances bearing upon
the risk of nonpayment of the Guarantied Obligations. The Guarantor hereby
waives and relinquishes any duty on the part of Agent or any Lender to
disclose any matter, fact or thing relating to the business, operations or
conditions of the Partnership now known or hereafter known by Agent or any
Lender.
Section 8.11 Rights Cumulative.
-----------------
The rights, powers and remedies given to
Lenders and Agent by this Guaranty are cumulative and shall be in addition to
and independent of all rights, powers and remedies given to Lenders and Agent
by virtue of any statute or rule of law or under this Agreement or any
agreement between the Corporation and Lenders and/or Agent or between the
Partnership and Lenders and/or Agent. Any forbearance or failure to
exercise, and any delay by any Lender or Agent in exercising, any right,
power or remedy hereunder shall not impair any such right, power or remedy or
be construed to be a waiver thereof, nor shall it preclude the further
exercise of any such right, power or remedy.
Section 8.12 Bankruptcy; Post-Petition Interest;
-----------------------------------
Reinstatement of the Guaranty.
-----------------------------
(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
59
<PAGE>
defense which the Partnership may have by reason of the order, decree or
decision of any court or administrative body resulting from any such
proceeding.
(b) The Guarantor acknowledges and agrees that any
interest on any portion of the Guarantied Obligations which accrues after the
commencement of any proceeding referred to in clause (a) above (or, if
interest on any portion of the Guarantied Obligations ceases to accrue by
operation of law by reason of the commencement of said proceeding, such
interest as would have accrued on such portion of the Guarantied Obligations
if said proceedings had not been commenced) shall be included in the
Guarantied Obligations because it is the intention of the Guarantor and Agent
that the Guarantied Obligations which are guarantied by the Guarantor
pursuant to this Guaranty should be determined without regard to any rule of
bankruptcy or other similar laws or which may relieve the Partnership of any
portion of such Guarantied Obligations. The Guarantor will permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the
benefit of creditors or similar person to pay Agent, or allow the claim of
Agent in respect of, any such interest accruing after the date on which such
proceeding is commenced.
(c) In the event that all or any portion of the
Guarantied Obligations are paid by the Partnership, the obligations of the
Guarantor hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such
payment(s) are rescinded or recovered directly or indirectly from Agent or
any Lender as a preference, fraudulent transfer or otherwise, and any such
payments which are so rescinded or recovered shall constitute Guarantied
Obligations for all purposes under this Guaranty.
Section 8.13 Notice of Events.
----------------
As soon as the Guarantor obtains
knowledge thereof, the Guarantor shall give Agent written notice of any
condition or event which has resulted or might reasonably be expected to
result in (a) a material adverse change in the financial condition of the
Guarantor or the Partnership, or (b) a breach of or noncompliance with any
term, condition or covenant contained in this Agreement or in any document
delivered pursuant hereto, or (c) a material breach of, or material
noncompliance with, any material term, condition or covenant of any material
contract to which the Guarantor or the Partnership is a party or by which the
Guarantor or the Partnership or the Guarantor's or the Partnership's property
may be bound, or (d) the Guarantor or any of its Subsidiaries being suspended
or debarred by any governmental entity from entering into any government
contract or government subcontract, from otherwise engaging in any business
relating to government contracts or from participation in government non-
procurement programs, if such suspension or debarment may have a material
adverse effect on the business, condition (financial or otherwise),
operations or properties of the Guarantor and its Subsidiaries, taken as a
whole.
Section 8.14 Set Off.
-------
In addition to any other rights any
Lender may have under law or in equity, if any amount shall at any time be
due and owing by the Guarantor to any Lender under this Guaranty, such Lender
is authorized at any time or from time to time, without 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
60
<PAGE>
Lender to or for the credit or the account of the Guarantor against and on
account of the Guarantied Obligations and liabilities of Guarantor to such
Lender under this Guaranty, and each such Affiliate is hereby irrevocably
authorized to permit such setoff and application.
Section 8.15 Determination of the Guarantied
-------------------------------
Obligations.
-----------
Notwithstanding anything to the contrary
contained in this Guaranty, the determination of the amount and terms of
repayment of the Guarantied Obligations under this Guaranty shall be
consistent with such determination pursuant to this Agreement (without giving
effect to the effect upon such determination of the Bankruptcy Code) with the
result that the liability of the Guarantor under this Guaranty will not
exceed the liability which the Guarantor would have had if it had been the
Partnership under this Agreement (plus any amounts payable pursuant to
Section 8.07 hereof); provided however that the Guarantor's agreements and
-------- -------
waivers set forth herein with respect to suretyship defenses (including,
without limitation, defenses based on lack of authority of the Partnership or
persons signing on behalf of the Partnership or the illegality, invalidity or
unenforceability of this Agreement against the Partnership) shall be fully
effective, it being understood that the limitation on the Guarantor's
liability set forth above relates only to the determination of the amount and
payment terms of the Guarantied Obligations and does not otherwise limit the
Guarantor's obligations under this Guaranty.
Section 8.16 Successors and Assigns.
----------------------
This Guaranty is a continuing guaranty
and shall be binding upon the Guarantor and its successors and assigns. This
Guaranty shall inure to the benefit of Lenders, Agent and their respective
successors and assigns. The Guarantor shall not assign this Guaranty or any
of the rights or obligations of the Guarantor hereunder without the prior
written consent of all Lenders. Any Lender may, without notice or consent,
assign its interest in this Guaranty in whole or in part. The terms and
provisions of this Guaranty shall inure to the benefit of any assignee or
transferee of any rights and obligations under this Agreement, and in the
event of such transfer or assignment the rights and privileges herein
conferred upon Lenders and Agent shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions
hereof.
Section 8.17 Further Assurances.
------------------
At any time or from time to time, upon
the request of Agent or Majority Lenders, the Guarantor shall execute and
deliver such further documents and do such other acts and things as Agent or
Majority Lenders may reasonably request in order to effect fully the purposes
of this Guaranty.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Amendments, Etc.
---------------
No amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Partnership or the
Corporation therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Majority Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
-------- -------
consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of 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
61
<PAGE>
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
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.
62
<PAGE>
Section 9.04 Costs, Expenses and Indemnification.
-----------------------------------
(a) The Partnership and the Corporation jointly and
severally agree to pay promptly on demand all reasonable costs and out-of-
pocket expenses of Agent in connection with the preparation, execution,
delivery, administration, syndication, modification and amendment of this
Agreement, and the other documents to be delivered hereunder or thereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Agent with respect thereto and with respect to advising
the Agent as to its rights and responsibilities hereunder. The Partnership
and the Corporation further jointly and severally agree to pay promptly on
demand all costs and expenses of the Agent and of each Lender, if any
(including, without limitation, reasonable counsel fees and out-of-pocket
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement and the other documents to
be delivered hereunder, including, without limitation, reasonable counsel
fees and out-of-pocket expenses in connection with the enforcement of rights
under this Section 9.04(a).
(b) If any payment of principal of any Eurodollar Rate
Advance or B Advance extended to either Borrower is made other than on the
last day of the interest period for such Advance, as a result of a payment
pursuant to Section 2.06 or acceleration of the maturity of the Advances
pursuant to Section 6.01 or for any other reason, such Borrower shall, upon
demand by any Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses which it may reasonably
incur as a result of such payment, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such
Advance.
(c) The Partnership and the Corporation jointly and
severally agree to indemnify and hold harmless the Agent, each Lender and
each director, officer, employee, agent, attorney and affiliate of the Agent
and each Lender (each an "indemnified person") in connection with any
expenses, losses, claims, damages or liabilities to which the Agent, a Lender
or such indemnified persons may become subject, insofar as such expenses,
losses, claims, damages or liabilities (or actions or other proceedings
commenced or threatened in respect thereof) arise out of the transactions
referred to in this Agreement or arise from any use or intended use of the
proceeds of the Advances, or in any way arise out of activities of the
Borrowers or the Guarantor that violate Environmental Laws, and to reimburse
the Agent, each Lender and each indemnified person, upon their demand, for
any reasonable legal or other out-of-pocket expenses incurred in connection
with investigating, defending or participating in any such loss, claim,
damage, liability, or action or other proceeding, whether commenced or
threatened (whether or not the Agent, such Lender or any such person is a
party to any action or proceeding out of which any such expense arises).
Notwithstanding the foregoing, the Corporation and the Partnership shall have
no obligation hereunder to an indemnified person with respect to indemnified
liabilities which have resulted from the gross negligence, bad faith or
willful misconduct of such indemnified person.
Section 9.05 Right of Set-off.
----------------
Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the
63
<PAGE>
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.
--------------
This Agreement shall be deemed to have
been executed and delivered when it shall have been executed by the
Partnership, the Corporation and the Agent and when the Agent shall have been
notified by each Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Partnership, the Corporation,
the Agent and each Lender and their respective successors and permitted
assigns, except that the Partnership and the Corporation shall not have the
right to assign their rights hereunder or any interest herein without the
prior written consent of all Lenders. At the time of the effectiveness of
this Agreement, (i) this Agreement shall supersede the Existing Credit
Agreement and (ii) the Existing Credit Agreement shall automatically
terminate and be of no further force and effect.
Section 9.07 Assignments and Participations.
------------------------------
(a) Each Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment and the A
Advances owing to it); provided, however, that (i) each such assignment shall
-------- -------
be of a constant, and not a varying, percentage of all rights and obligations
under this Agreement (other than any B Advances), (ii) after giving effect to
any such assignment, (1) the assigning Lender shall no longer have any
Commitment or (2) the amount of the Commitment of each of the assigning
Lender and the Eligible Assignee party to such assignment (in each case
determined as of the date of the Assignment and Acceptance with respect to
such assignment) shall not be less than $10,000,000, (iii) each such
assignment shall be to an Eligible Assignee, and (iv) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance
and recording in the Register, an Assignment and Acceptance, and a processing
and recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and,
64
<PAGE>
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 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
65
<PAGE>
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.
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
66
<PAGE>
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 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.
67
<PAGE>
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.
68
</PAGE>
