EXHIBIT 10.25
CREDIT AGREEMENT
Dated as of September 6, 1995
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 agent (the "Agent") for the Lenders hereunder, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
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.
"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
Section 2.08.
"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 Credit Agreement, as this Credit Agreement
may be amended, supplemented or otherwise modified from time to time.
"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.
"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.
"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,
September 15, 1999, 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.
"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.
"CP Reduction" has the meaning specified in Section 2.01.
"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
Utilization Ratio Utilization Ratio
is less than 0.50:1.00 is greater than or
equal to 0.50:1.00
---------------------- ------------------
Xxxxx 0 0.11% 0.21%
Xxxxx 0 0.15% 0.25%
Xxxxx 0 0.175% 0.275%
Xxxxx 0 0.25% 0.35%
Xxxxx 0 0.265% 0.365%
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 Xxxxx 0 (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) 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 September 6, 1995, 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.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV of
ERISA is a member of either Borrower's controlled group, or under common
control with such Borrower, within the meaning of Section 414 of the Code and
the regulations promulgated and rulings issued thereunder.
"ERISA Event" means (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, unless the 30-day notice requirement
with respect thereto has been waived by the PBGC; (ii) the provision by the
administrator of any Pension Plan of a notice of intent to terminate such
Pension Plan pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (iii) the cessation of operations at a facility in the circumstances
described in Section 4062(e) of ERISA; (iv) the withdrawal by either Borrower
or an ERISA Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (v) the failure by either Borrower or any ERISA Affiliate to make a
payment to a Pension Plan required under Section 302(f)(1) of ERISA, which
Section imposes a lien for failure to make required payments; (vi) the
adoption of an amendment to a Pension Plan requiring the provision of security
to such Pension Plan, pursuant to Section 307 of ERISA; or (vii) the
institution by the PBGC of proceedings to terminate a Pension Plan, pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition which,
in the reasonable judgment of either Borrower, might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, a Pension Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may from
time to time specify to the Borrowers and the Agent.
"Eurodollar Rate Advance" means an A Advance which bears interest as
provided in Section 2.07(b).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
Period for any Eurodollar Rate Advance means the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the 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 Agreements" means the Existing Long Term Facility
Credit Agreement and the Existing Short Term Facility Credit Agreement.
"Existing Long Term Facility Credit Agreement" means the Credit
Agreement (Long Term Facility) dated as of September 15, 1994, among the
Partnership, the Corporation, the lenders party thereto and CUSA, as agent for
such lenders.
"Existing Short Term Facility Credit Agreement" means the Credit
Agreement (Short Term Facility) dated as of September 15, 1994, among the
Partnership, the Corporation, the lenders party thereto and CUSA, as agent.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by it.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guarantied Obligations" has the meaning assigned to that term in
Section 8.01.
"Guarantor" means the Corporation, in its capacity as the guarantor
hereunder.
"Guaranty" shall have the meaning set forth in Section 8.01.
"Insufficiency" means, with respect to any Pension Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18)
of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same A Borrowing, the period commencing on the date of such
Eurodollar Rate Advance, or on the date of continuation of such Advance as a
Eurodollar Rate Advance upon expiration of successive Interest Periods
applicable thereto, or on the date of Conversion of a Base Rate Advance into a
Eurodollar Rate Advance, and ending on the last day of the period selected by
the applicable Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be one, two, three or six months, as the
applicable Borrower may select in the Notice of Borrowing or the Notice of
Conversion/Continuation for such Advance; provided, however, that:
(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 Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 4 or Xxxxx 0, 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.
"Level 5" means that, as of any date of determination, 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 at least 66-
2/3% of the then aggregate unpaid principal amount of the A Advances held by
Lenders, or, if no such principal amount is then outstanding, Lenders having
at least 66-2/3% of the Commitments (provided that, for purposes 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 Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which either Borrower or any ERISA Affiliate of
such Borrower is making, or is obligated to make, contributions or has within
any of the preceding six plan years been obligated to make or accrue
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of either
Borrower or an ERISA Affiliate and at least one Person other than such
Borrower and its ERISA Affiliates or (ii) was so maintained and in respect of
which either Borrower or an ERISA Affiliate could have liability under Section
4063, 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Non-Hostile Acquisition" means an acquisition (whether by purchase
of capital stock or assets, merger or otherwise) which has been approved by
resolutions of the Board of Directors of the Person being acquired or by
similar action if the Person is not a corporation and as to which such
approval has not been withdrawn.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of a B Borrowing" has the meaning specified in Section
2.03(a).
"Notice of Borrowing" means the Notice of A Borrowing or the Notice
of B Borrowing or both, as the context may require.
"Notice of Conversion/Continuation" has the meaning specified in
Section 2.09.
"Partnership" means CSC Enterprises, a Delaware general partnership,
in its capacity as a Borrower hereunder.
"Payment in full", "paid in full" or any similar term, as used in
Article VIII hereof, means payment in full of the Guarantied Obligations
including, without limitation, all principal, interest, costs, fees and
expenses (including, without limitation, legal fees and expenses) of Lenders
and Agent as required hereunder.
"PBGC" means the U.S. Pension Benefit Guaranty Corporation.
"Pension Plan" means a Single Employer Plan or a Multiple Employer
Plan or both.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture
or other entity, or a government or any political subdivision or agency
thereof.
"Potential Event of Default" means a condition or event which, after
notice or lapse of time or both, would constitute an Event of Default if that
condition or event were not cured or removed within any applicable grace or
cure period.
"Processing Agreement" has the meaning specified in Section 4.01(n).
"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, Chemical Bank, Citibank and Xxxxxx Guaranty
Trust Company of New York.
"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.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of either
Borrower or any ERISA Affiliate and no Person other than such Borrower and its
ERISA Affiliates or (ii) was so maintained and in respect of which either
Borrower or an ERISA Affiliate could have liability under Section 4062 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which at least 50% of the total voting
power of shares of stock or other securities entitled to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"Termination Date" means, with respect to any Lender, the earlier of
(i) the Commitment Termination Date of such Lender and (ii) the date of
termination in whole of the Commitments of all Lenders pursuant to Section
2.05 or 6.01.
"Type" means, with reference to an A Advance, a Base Rate Advance or
a Eurodollar Rate Advance.
"Withdrawal Liability" has the meaning given such term under Part I
of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent with
those applied in the preparation of the financial statements referred to in
Section 4.01(e) or Section 4.02(e), as the case may be. All computations
determining compliance with financial covenants or terms, including
definitions used therein, shall be prepared in accordance with generally
accepted accounting principles in effect at the time of the preparation of,
and in conformity with those used to prepare, the historical financial
statements delivered to the Lenders pursuant to Section 4.01(e) or Section
4.02(e), as the case may be. If at any time the computations for determining
compliance with financial covenants or provisions relating thereto utilize
generally accepted accounting principles different than those then being
utilized in the financial statements being delivered to the Lenders, such
financial statements shall be accompanied by a reconciliation statement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make A Advances to either
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date of such Lender in an aggregate
amount (together with the aggregate amount of A Advances made to the other
Borrower that is outstanding at such time) not to exceed at any time
outstanding the amount set opposite such Lender's name on the signature pages
hereof or, if such Lender has entered into any Assignment and Acceptance, set
forth for such Lender in the Register maintained by the Agent pursuant to
Section 9.07(c), as such amount may be reduced pursuant to Section 2.05 (such
Lender's "Commitment"), provided that (a) the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to time to the
extent of the aggregate amount of the B Advances then outstanding and at any
time of determination, such deemed use of the aggregate amount of the
Commitments shall be applied to the Lenders ratably according to their
respective Commitments in effect at such time of determination (such deemed
use of the
aggregate amount of the Commitments being a "B Reduction") and (b) the
aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate principal amount of Commercial
Paper outstanding (such deemed use of the aggregate amount of the Commitments
being a "CP Reduction"), provided that the Commitments of the Lenders shall
not be deemed to be so used under this clause (b) (and therefore the
Commitments shall not be reduced by a CP Reduction) in the case of any
requested Borrowing the proceeds of which are used to repay Commercial Paper.
Each A Borrowing shall be in an aggregate amount not less than $5,000,000 or
an integral multiple of $1,000,000 in excess thereof and shall consist of A
Advances of the same Type made on the same day to the same Borrower by the
Lenders ratably according to their respective Commitments. Within the limits
of each Lender's Commitment, each Borrower may from time to time borrow,
prepay pursuant to Section 2.06(d) and reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing shall be
made on notice, given not later than (x) 10:00 A.M. (New York City time) on
the date of a proposed A Borrowing consisting of Base Rate Advances and (y)
12:00 noon (New York City time) on the third Business Day prior to the date of
a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower
requesting the proposed A Borrowing to the Agent, which shall give to each
Lender prompt notice thereof by telecopier, telex or cable. Each such notice
of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or
cable, confirmed immediately in writing, in substantially the form of Exhibit
A-1 hereto, specifying therein the requested (i) date of such A Borrowing,
(ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of
such A Borrowing, and (iv) in the case of an A Borrowing comprised of
Eurodollar Rate Advances, the initial Interest Period for each such A Advance.
A Borrower may, subject to the conditions herein provided, borrow more than
one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New
York City time) in the case of a Borrowing consisting of Base Rate Advances
and before 11:00 A.M. (New York City time) in the case of a Borrowing
consisting of Eurodollar Rate Advances, in each case on the date of such A
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at its address referred to in Section 9.02, in same day funds, such
Lender's ratable portion of such A Borrowing. After the Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Agent will make such funds available to the Borrower
requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any
A Borrowing or with respect to the Conversion or continuance of any A
Borrowing if the aggregate amount of such A Borrowing or such Conversion or
continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods
relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before
the date of any requested A Borrowing, notify the Agent that the introduction
of or any change in or in the interpretation of any law or regulation makes it
unlawful, or that any central bank or other governmental authority asserts
that it is unlawful, for such Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate Advances or to fund
or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender
to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate
Advances shall forthwith be suspended until the Agent shall notify the
Borrowers that such Lender has determined that the circumstances causing such
suspension no longer exist and such Lender's then outstanding Eurodollar Rate
Advances, if any, shall be Base Rate Advances; to the extent that such
affected Eurodollar Rate Advances become Base Rate Advances, all payments of
principal that would have been otherwise applied to such Eurodollar Rate
Advances shall be applied instead to such Lender's Base Rate Advances;
provided that if Majority Lenders are subject to the same illegality or
assertion of illegality, then the right of a Borrower to select Eurodollar
Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert
all or any portion of Base Rate Advances shall forthwith be suspended until
the Agent shall
notify the Borrowers that the circumstances causing such suspension no longer
exist, and each A Advance comprising such A Borrowing shall be a Base Rate
Advance;
(iv) if fewer than two Reference Banks furnish timely
information to the Agent for determining the Adjusted Eurodollar Rate for any
Eurodollar Rate Advances comprising any requested A Borrowing, the right of a
Borrower to select Eurodollar Rate Advances for such A Borrowing or any
subsequent A Borrowing shall be suspended until the Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist, and each A Advance comprising such A Borrowing shall be made as
a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day
before the date of any requested A Borrowing, notify the Agent that the
Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A
Borrowing will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances
for such A Borrowing or any subsequent A Borrowing shall be suspended until
the Agent shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist, and each A Advance comprising such A
Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on
the Borrower requesting the proposed A Borrowing. In the case of any A
Borrowing which the related Notice of A Borrowing specifies is to be comprised
of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the A Advance to be made by such Lender as
part of such A Borrowing or by reason of the termination of hedging or other
similar arrangements, in each case when such A Advance is not made on such
date, including without limitation, as a result of any failure to fulfill on
or before the date specified in such Notice of A Borrowing for such A
Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any A Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such A Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such A Borrowing in accordance with subsection (a) of this Section 2.02 and
the Agent may, in reliance upon such assumption, make available to the
Borrower requesting the proposed A Borrowing on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Agent, such Lender and such Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to such Borrower until the date such amount is repaid to the
Agent, at (i) in the case of such Borrower, the interest rate applicable at
the time to A Advances comprising such A Borrowing and (ii) in the case of
such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such
Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by
it as part of any A Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of
any A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally agrees that
either Borrower may make B Borrowings under this Section 2.03 from time to
time on any Business Day during the period from the date hereof until the date
occurring 30 days prior to the latest Commitment Termination Date of any
Lender then in effect in the manner set forth below; provided that, (i)
following the making of each B Borrowing, (1) the aggregate amount of the
Advances then outstanding to both Borrowers shall not exceed the aggregate
amount of the Commitments of the Lenders then in effect (computed without
regard to any B Reduction), and (2) the
aggregate amount of the B Advances scheduled to be outstanding to both
Borrowers at any time through the maturity of such B Advances shall not exceed
the aggregate amount of the Commitments of the Lenders scheduled to be in
effect at such time (computed without regard to any B Reduction), and (ii) no
Lender may make a B Advance if the maturity date of such B Advance occurs
after the Commitment Termination Date of such Lender.
(i) Either Borrower may request a B Borrowing under this
Section 2.03 by delivering to the Agent, by telecopier, telex or cable,
confirmed immediately in writing, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit A-2 hereto, specifying the
date and aggregate amount of the proposed B Borrowing, the maturity date for
repayment of each B Advance to be made as part of such B Borrowing (which
maturity date (x) in the case of a fixed rate B Borrowing may not be earlier
than the date occurring 14 days after the date of such B Borrowing or later
than the date occurring 180 days after the date of such B Borrowing, and (y)
in the case of any other B Borrowing may not be earlier than the date
occurring 30 days after the date of such B Borrowing or later than the date
occurring 180 days after the date of such B Borrowing), the interest payment
date or dates relating thereto, and any other terms to be applicable to such B
Borrowing, not later than 11:00 A.M. (New York City time) (A) at least one
Business Day prior to the date of the proposed B Borrowing, if such Borrower
shall specify in the Notice of B Borrowing that the rates of interest to be
offered by the Lenders shall be fixed rates per annum and (B) at least four
Business Days prior to the date of the proposed B Borrowing, if such Borrower
shall instead specify in the Notice of B Borrowing the basis to be used by the
Lenders in determining the rates of interest to be offered by them. A
Borrower may not select a maturity date for any B Borrowing which ends after
the latest Commitment Termination Date of any Lender then in effect. The
Agent shall in turn promptly notify each Lender of each request for a B
Borrowing received by it from a Borrower by sending such Lender a copy of the
related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more B Advances to such Borrower as
part of such proposed B Borrowing at a rate or rates of interest specified by
such Lender in its sole discretion, by notifying the Agent (which shall give
prompt notice thereof to such Borrower), before 11:00 A.M. (New York City
time) (A) on the date of such proposed B Borrowing, in the case of a Notice of
B Borrowing delivered pursuant to clause (A) of paragraph (i) above and (B)
three Business Days before the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant to clause (B) of paragraph (i)
above, of the minimum amount and maximum amount of each B Advance which such
Lender would be willing to make as part of such proposed B Borrowing (which
amounts may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to such B
Advance; provided that if the Agent in its capacity as a Lender shall, in its
sole discretion, elect to make any such offer, it shall notify such Borrower
of such offer before 10:00 A.M. (New York City time) on the date on which
notice of such election is to be given to the Agent by the other Lenders. If
any Lender shall elect not to make such an offer, such Lender shall so notify
the Agent, before 10:00 A.M. (New York City time) on the date on which notice
of such election is to be given to the Agent by the other Lenders, and such
Lender shall not be obligated to, and shall not, make any B Advance as part of
such B Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any B Advance as part of
such proposed B Borrowing.
(iii) Such Borrower shall, in turn, (A) before 12:00 noon (New
York City time) on the date of such proposed B Borrowing, in the case of a
Notice of B Borrowing delivered pursuant to clause (A) of paragraph (i) above
and (B) before 1:00 P.M. (New York City time) three Business Days before the
date of such proposed B Borrowing, in the case of a Notice of B Borrowing
delivered pursuant to clause (B) of paragraph (i) above, either
(x) cancel such B Borrowing by giving the Agent notice to
that effect, or
(y) accept one or more of the offers made by any Lender
or Lenders pursuant to paragraph (ii) above (which acceptance shall be
irrevocable) in its sole discretion, by giving notice to the Agent of the
amount of each B Advance (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount, notified to such
Borrower by the Agent on behalf of such Lender for such B Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of such B Borrowing
(provided that the aggregate amount of such B Borrowing shall not exceed the
amount specified on the Notice of B Borrowing delivered by such Borrower
pursuant to paragraph (i) above), and reject any remaining offers made by
Lenders pursuant to paragraph (ii) above by giving the Agent notice to that
effect; provided that acceptance of offers may only be made on the basis of
ascending rates for B Borrowings of the same type and duration for up to the
maximum amounts offered by Lenders; and provided further that if offers are
made by two or more Lenders for the same type of B Borrowing for the same
duration and with the same rate of interest, in an aggregate amount which is
greater than the amount requested, such offers shall be accepted on a pro rata
basis based on the maximum amounts offered by such Lenders at such rate of
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 of $2,500 for each Notice of B Borrowing delivered by
such Borrower to the Agent pursuant to this Section 2.03(a), whether or not a
B Borrowing is made pursuant thereto.
(b) Each B Borrowing shall be in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each B Borrowing, the Borrowers and each Lender shall
be in compliance with the limitations set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, either Borrower may from time to time borrow under this Section
2.03, repay or prepay pursuant to subsection (d) below, and reborrow under
this Section 2.03, and more than one B Borrowing may be made on a Business
Day; provided that,
except for B Borrowings made on the same Business Day, a B Borrowing shall not
be made within three Business Days of the date of any other B Borrowing.
(d) Each Borrower shall repay to the Agent for the account of each
Lender which has made a B Advance to such Borrower, on the maturity date of
each B Advance made to such Borrower (such maturity date being that specified
by such Borrower for repayment of such B Advance in the related Notice of B
Borrowing delivered pursuant to subsection (a)(i) above), the then unpaid
principal amount of such B Advance. Neither Borrower shall have any right to
prepay any principal amount of any B Advance unless, and then only on the
terms, specified by such Borrower for such B Advance in the related Notice of
B Borrowing delivered pursuant to subsection (a)(i) above.
(e) Each Borrower shall pay interest on the unpaid principal amount
of each B Advance made to such Borrower from the date of such B Advance to the
date the principal amount of such B Advance is repaid in full, at the rate of
interest for such B Advance specified by the Lender making such B Advance in
its notice with respect thereto delivered pursuant to subsection (a)(ii)
above, payable on the interest payment date or dates specified by such
Borrower for such B Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above; provided that any principal amount of any
B Advance which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to (A) until the stated maturity date of such B
Advance, the greater of (x) 2% per annum above the Base Rate in effect from
time to time and (y) 2% above the stated rate per annum of such B Advance, and
(B) after the stated maturity of such B Advance, 2% per annum above the Base
Rate in effect from time to time.
(f) Subject to the obligations of the Guarantor under the Guaranty,
neither Borrower shall have any obligation to repay to any Lender any B
Advance made by such Lender to the other Borrower or to pay any interest on
any B Advance made by such Lender to the other Borrower.
SECTION 2.04. Facility Fees. The Borrowers jointly and severally agree
to pay to the Agent for the account of each Lender a facility fee on the
amount of such Lender's Commitment (or if no Commitment is in effect,
Advances), whether used or unused and without giving effect to any CP
Reduction or B Reduction, from the date hereof in the case of each Bank and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the
Termination Date of such Lender, payable in arrears on the last day of each
March, June, September and December during the term of such Lender's
Commitment, commencing September 30, 1995, and on the Termination Date of such
Lender, in an amount equal to the product of (i) the average daily amount of
such Lender's Commitment (whether used or unused and without giving effect to
any B Reduction or CP Reduction) in effect during the period for which such
payment that is to be made times (ii) the weighted average rate per annum that
is derived from the following rates: (a) a rate of 0.09% per annum with
respect to each day during such period that the higher of the Ratings was
Xxxxx 0, (x) 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 Xxxxx 0, (x) a rate of 0.15% per annum with respect to each day
during such period that the higher of such Ratings was Level 4 and (e) a rate
of 0.185% per annum with respect to each day during such period to which Level
5 applies. 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 Xxxxx'x 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 Xxxxx 0 (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 Xxxxx'x (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 Xxxxx'x that is available for such day.
SECTION 2.05. Termination and Reduction of the Commitments.
(a) Mandatory Termination. In the event that a mandatory
prepayment in full of the A Advances is required by Section 2.06(b), the
Commitments of the Lenders shall immediately terminate.
(b) Optional Reductions. The Borrowers shall have the right, upon
at least four Business Days' notice to the Agent by both Borrowers, to
terminate in whole or reduce ratably in part the unused portions of the
respective Commitments of the Lenders, provided that the aggregate amount of
the Commitments of the Lenders shall not be reduced to an amount which is less
than the sum of (i) the aggregate principal amount of the Advances then
outstanding and (ii) the aggregate principal amount of Commercial Paper then
outstanding, and provided, further, that each partial reduction shall be in
the aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof.
SECTION 2.06. 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
or repay Commercial Paper issued by such Borrower,
in each case to the extent necessary so that the sum of the aggregate
principal amount of the Advances and the aggregate principal amount of
Commercial Paper then outstanding does not exceed the aggregate amount of the
Commitments of the Lenders then in effect (computed without regard to any CP
Reduction or B Reduction).
(d) Voluntary Prepayments of A Borrowings. Neither Borrower shall
have any right to prepay any principal amount of any A Advances other than as
provided in this subsection (d). Each Borrower may, upon at least one
Business Day's notice to the Agent in the case of Base Rate Advances and at
least three Business Days' notice to the Agent in the case of Eurodollar Rate
Advances stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amounts of the Advances made to such Borrower comprising
part of the same A Borrowing in whole or ratably in part; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount not
less than $5,000,000 and integral multiples of $1,000,000 in excess thereof
and (y) in the case of any such prepayment of any Eurodollar Rate Advance,
such Borrower shall pay all accrued interest to the date of such prepayment on
the portion of such Eurodollar Rate Advance being prepaid and shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
9.04(b).
(e) Certain Obligations Several. Subject to the obligations of the
Guarantor under the Guaranty, neither Borrower shall have any obligation to
repay to any Lender any A Advance made by such Lender to the other Borrower or
to pay any interest on any A Advance made by such Lender to the other
Borrower.
SECTION 2.07. Interest on A Advances. Each Borrower shall pay interest
accrued on the principal amount of each A Advance that was made to such
Borrower outstanding from time to time from the date of such A Advance until
such principal amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such A Advance is a Base Rate Advance,
a rate per annum equal at all times to the Base Rate in effect from time to
time, payable in arrears on the last day of each March, June, September and
December during the term of this Agreement, commencing September 30, 1995, and
on the Termination Date of the applicable Lender; provided that any amount of
principal, interest, fees and other amounts payable under this Agreement
(including, without limitation, the principal amount of Base Rate Advances,
but excluding the principal amount of Eurodollar Rate Advances and B Advances)
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate per annum equal at
all times to 2% per annum above the Base Rate in effect from time to time.
(b) Eurodollar Rate Advances. If such A Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during the Interest Period
for such A Advance to the sum of the Adjusted Eurodollar Rate for such
Interest Period plus the Applicable Margin, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a duration of more
than three months, on the day which occurs during such Interest Period three
months from the first day of such Interest Period; provided that any principal
amount of any Eurodollar Rate Advance which is not paid when due (whether at
stated maturity, by acceleration or otherwise) shall bear interest from the
date on which such amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to (A) during the Interest
Period applicable to such Eurodollar Rate Advance, the greater of (x) 2% per
annum above the Base Rate in effect from time to time and (y) 2% per annum
above the rate per annum required to be paid on such amount immediately prior
to the date on which such amount became due and (B) after the expiration of
such Interest Period, 2% per annum above the Base Rate in effect from time to
time.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of
determining each Adjusted Eurodollar Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks, subject to Section 2.02(b)(iv).
(b) The Agent shall give prompt notice to the Borrowers and the
Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.07(a) or 2.07(b), and the applicable rate, if any, furnished by
each Reference Bank for the purpose of determining the applicable interest
rate under Section 2.07(b).
SECTION 2.09. Voluntary Conversion or Continuation of A Advances.
(a) Each Borrower may on any Business Day, upon notice given to the
Agent not later than 12:00 noon (New York City time) on the third Business Day
prior to the date of the proposed Conversion or continuance (a "Notice of
Conversion/Continuation") and subject to the provisions of Section 2.02(b),
(1) Convert all Advances of one Type comprising the same A Borrowing made to
such Borrower into A Advances of another Type and (2) upon the expiration of
any Interest Period applicable to A Advances which are Eurodollar Rate
Advances made to such Borrower, continue all (or, subject to Section 2.02(b),
any portion of) such A Advances as Eurodollar Rate Advances and the succeeding
Interest Period(s) of such continued A Advances shall commence on the last day
of the Interest Period of the A Advances to be continued; provided, however,
that any Conversion of any Eurodollar Rate Advances into A Advances of another
Type shall be made on, and only on, the last day of an Interest Period for
such Eurodollar Rate Advances. Each such Notice of Conversion/Continuation
shall, within the restrictions specified above, specify (i) the date of such
continuation or Conversion, (ii) the A Advances (or, subject to Section
2.02(b), any portion thereof) to be continued or Converted, (iii) if such
continuation is of, or such Conversion is into, Eurodollar Rate Advances, the
duration of the Interest Period for each such A Advance and (iv) that no
Potential Event of Default or Event of Default has occurred and is continuing.
(b) If upon the expiration of the then existing Interest Period
applicable to any A Advance which is a Eurodollar Rate Advance made to either
Borrower, such Borrower shall not have delivered a Notice of
Conversion/Continuation in accordance with this Section 2.09, then such
Advance shall upon such expiration automatically be Converted to a Base Rate
Advance.
(c) After the occurrence of and during the continuance of a
Potential Event of Default or an Event of Default, a Borrower may not elect to
have an A Advance be made or continued as, or Converted into, a Eurodollar
Rate Advance after the expiration of any Interest Rate then in effect for that
A Advance.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements in the case of Eurodollar Rate Advances
included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances made to either Borrower, then such Borrower shall
from time to time, upon demand by such Lender (with a copy of such demand to
the Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A reasonably
detailed certificate as to the amount and manner of calculation of such
increased cost, submitted to such Borrower and the Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Agent), the Borrowers
shall immediately pay, jointly and severally, to the Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A reasonably detailed certificate as to such
amounts and the manner of calculation thereof submitted to the Borrowers and
the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
(c) If a Lender shall change its Applicable Lending Office, such
Lender shall not be entitled to receive any greater payment under Sections
2.10 and 2.12 than the amount such Lender would have been entitled to receive
if it had not changed its Applicable Lending Office, unless such change was
made at the request of a Borrower or at a time when the circumstances giving
rise to such greater payment did not exist.
SECTION 2.11. Payments and Computations. (a) Each Borrower shall make
each payment hereunder not later than 1:00 P.M. (New York City time) on the
day when due in U.S. dollars to the Agent at its address referred to in
Section 9.02 in same day funds. Subject to the immediately succeeding
sentence, the Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or facility fees
ratably (other than amounts payable pursuant to Section 2.03, 2.10 or 2.12 or,
to the extent the Termination Date is not the same for all Lenders, pursuant
to Section 2.06(a)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any
other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon receipt of principal or interest paid after an
Event of Default and an acceleration or a deemed acceleration of amounts due
hereunder, the Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest ratably in accordance
with each Lender's outstanding A Advances and B Advances (other than amounts
payable pursuant to Section 2.10 or 2.12) to the Lenders for the account of
their respective Applicable Lending Offices. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 9.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Adjusted Eurodollar Rate or
the Federal Funds Rate and of facility fees shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or such fees are payable. Each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the
case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Agent shall have received notice from a Borrower
prior to the date on which any payment is due to the Lenders hereunder that
such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender.
If and to the extent that such Borrower shall not have so made such payment in
full to the Agent, each Lender shall repay to the Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for
each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by a Borrower hereunder
shall be made, in accordance with Section 2.11, free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, (i) taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws
of which such Lender or the Agent (as the case may be) is organized or any
political subdivision thereof or in which its principal office is located,
(ii) taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Lender's Applicable Lending Office
or any political subdivision thereof, (iii) taxes imposed upon or measured by
the overall net income of such Lender by the United States of America or any
political subdivision or taxing authority thereof or therein, and (iv) United
States income taxes (including withholding taxes with respect to payments
hereunder) payable with respect to payments hereunder under laws (including
without limitation any statute, treaty, ruling, determination or regulation)
in effect on the date hereof in the case of each Bank and on the effective
date of the Assignment and Acceptance pursuant to which it became a Lender in
the case of each other Lender (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If a Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or the Agent,
(i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.12) such Lender or the Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers jointly and severally agree to pay
any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (to the extent specifically attributable
to Borrowings made by such Borrower) (including, without limitation, any Taxes
or Other Taxes (to the extent specifically attributable to Borrowings made by
such Borrower) imposed by any jurisdiction on amounts payable under this
Section 2.12) and the Borrowers jointly and severally will indemnify each
Lender and the Agent for the full amount of Taxes or Other Taxes (to the
extent not specifically attributable to Borrowings made by a particular
Borrower) (including, without limitation, any Taxes or Other Taxes (to the
extent not specifically attributable to Borrowings made by a particular
Borrower) imposed by any jurisdiction on amounts payable under this Section
2.12), in each case paid by such Lender or the Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30
days from the date such Lender or the Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrowers, or either of them, will furnish to the Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by either
Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide such Borrower with Internal Revenue Service form 1001 or 4224,
as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an income
tax treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States. If the form provided by
a Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from "Taxes" as
defined in Section 2.12(a).
(f) For any period with respect to which a Lender has failed to
provide a Borrower with the appropriate form described in Section 2.12(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such
form otherwise is not required under the first sentence of subsection (e)
above), such Lender shall not be entitled to indemnification under Section
2.12(a) with respect to Taxes imposed by the United States; provided, however,
that should a Lender
become subject to Taxes because of its failure to deliver a form required
hereunder, such Borrower shall, at the expense of such Lender, take such steps
as the Lender shall reasonably request to assist the Lender to recover such
Taxes.
(g) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.12 shall survive the payment in full of principal and
interest hereunder.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.10 or 2.12 or, to the extent the Termination Date is not
the same for all Lenders, pursuant to Section 2.06(a)) in excess of its
ratable share of payments on account of the A Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the A Advances made by them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them,
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrowers agree that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the applicable Borrower in the amount of such participation.
SECTION 2.14. Evidence of Debt.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower
to such Lender resulting from each Advance owing to such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder. Each Borrower agrees that upon notice by
any Lender to such Borrower (with a copy of such notice to the Agent) to the
effect that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the A Advances or the B Advances owing to,
or to be made by, such Lender, such Borrower shall promptly execute and
deliver to such Lender promissory notes or other evidence of such
indebtedness, in form and substance reasonably satisfactory to such Borrower
and such Lender, payable to the order of such Lender in a principal amount
equal, in the case of the A Advances, to the aggregate principal amount of the
Commitment of such Lender and, in the case of the B Advances, to the
outstanding principal amount of B Advances of such Lender; provided, however,
that the execution and delivery of such promissory note or other evidence of
indebtedness shall not be a condition precedent to the making of any Advance
under this Agreement.
(b) The Register maintained by the Agent pursuant to Section
9.07(c) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date,
amount and tenor, as applicable, of each Borrowing, the Borrower that received
the proceeds of such Borrowing, the Type of Advances comprising such Borrowing
and the Interest Period applicable thereto, (ii) the terms of each Assignment
and Acceptance delivered to and accepted by it, (iii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder, and (iv) the amount of any sum received by
the Agent from each Borrower hereunder and each Lender's share thereof.
(c) The entries made in the Register shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.15. Use of Proceeds.
(a) Advances shall be used by the Borrowers for Commercial Paper
backup, for Non-Hostile Acquisitions and for general corporate purposes.
(b) No portion of the proceeds of any Advances under this Agreement
shall be used by either Borrower or any of its Subsidiaries in any manner
which might cause the Advances or the application of such proceeds to violate,
or require any Lender to make any filing or take any other action under,
Regulation G, Regulation U, Regulation T, or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board
or to violate the Securities Exchange Act of 1934, in each case as in effect
on the date or dates of such Advances and such use of proceeds.
SECTION 2.16. Extension of the Commitment Termination Date. The
Borrowers may, not later than 30 days prior to each anniversary of the
Effective Date (the "Current Anniversary Date"), and not more than once in any
calendar year, commencing not later than 30 days prior to the first
anniversary of the Effective Date, from time to time jointly request that the
Commitment Termination Date for all Eligible Lenders (as defined below) be
extended by delivering to the Agent a copy of an extension request signed by
both Borrowers (an "Extension Request") in substantially the form of Exhibit E
hereto. The Agent shall promptly notify each Lender of its receipt of such
Extension Request. On or prior to the tenth day (the "Determination Date")
prior to the Current Anniversary Date, each Eligible Lender shall notify the
Agent and the Borrowers of its willingness or unwillingness to extend its
Commitment Termination Date hereunder. Any Eligible Lender that shall fail to
so notify the Agent and the Borrowers on or prior to the Determination Date
shall be deemed to have declined to so extend. In the event that, on or prior
to the Determination Date, Eligible Lenders representing 66-2/3% or more of
the aggregate amount of the Commitments of all Eligible Lenders then in effect
shall consent to such extension, the Agent shall so advise the Lenders and the
Borrowers, and, subject to execution of documentation evidencing such
extension and consents, the Commitment Termination Date of each Eligible
Lender (each a "Consenting Lender") that has consented on or prior to the
Determination Date to so extend shall be extended to the date indicated in the
Extension Request. Thereafter, (i) for each Consenting Lender, the term
"Commitment Termination Date" 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 less than 66-2/3% of the
aggregate amount of the Commitments of all Eligible Lenders then in effect,
the Agent shall so advise the Lenders and the Borrowers, and none of the
Lenders' Commitment Termination Dates shall be extended to the date indicated
in the Extension Request and each Lender's Commitment Termination Date shall
continue to be the date which was the Commitment Termination Date of such
Lender immediately prior to the delivery to the Agent of such Extension
Request. For purposes of this Section 2.16, the term "Eligible Lenders"
means, with respect to any Extension Request, (i) all Lenders if no Lender's
Commitment Termination Date had been extended pursuant to this Section 2.16
prior to the delivery to the Agent of such Extension Request, and (ii) in all
other cases, those Lenders which had extended their Commitment Termination
Date in the most recent extension of any Commitment Termination Date effected
pursuant to this Section 2.16.
SECTION 2.17. Substitution of Lenders. If any Lender requests
compensation from a Borrower under Section 2.10(a) or (b) or if any Lender
declines to extend its Commitment Termination Date pursuant to Section 2.16,
the Borrowers shall have the right, with the assistance of the Agent, to seek
one or more substitute banks or financial institutions (which may be one or
more of the Lenders) reasonably satisfactory to the Agent and the Borrowers to
purchase the Advances and assume the Commitments of such Lender, and the
Borrowers, the Agent, such Lender, and such substitute banks or financial
institutions shall execute and deliver an appropriately completed Assignment
and Acceptance pursuant to Section 9.07(a) hereof to effect the assignment of
rights to and the assumption of obligations by such substitute banks or
financial institutions; provided that such requesting Lender shall be entitled
to (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 Optional Increase in Commitments. From time to time, but
not more frequently than once each calendar year, the Borrowers may, with the
consent of the relevant Lender or Lenders (which consent shall be in the sole
discretion of such Lender or Lenders) and of the Agent (which consent shall
not be unreasonably withheld), increase the Commitment of any one or more of
the Lenders (each an "Increasing Lender"), subject to the satisfaction of the
following conditions precedent:
(a) the Agent shall have received a notice of increase (an
"Increase Notice") signed by both Borrowers and each Increasing Lender in
substantially the form of Exhibit D hereto;
(b) after giving effect to such increase and all prior increases in
the Commitments since the Effective Date, (i) the aggregate amount of the
Commitments shall not exceed $525,000,000 and (ii) no Lender's Commitment
shall exceed 50% of the aggregate amount of the Commitments;
(c) on the effective date of such increase, there shall be no A
Advances outstanding and all accrued and unpaid interest on the A Advances and
all accrued and unpaid facility fees shall have been paid in full; and
(d) the following statements shall be true (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 higher of the Ratings is
equal to or better than BBB or Baa2, (ii) the representations and warranties
of the Partnership and the Corporation contained in Article IV are correct on
and as of the such date, 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; and (iii) no event has
occurred and is continuing, or would result from such increase, which
constitutes an Event of Default or a Potential Event of Default.
The Agent shall promptly notify the Lenders of any increase in the Commitments
pursuant to this Section 2.18.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Effective Date. The effectiveness
of this Agreement and the obligation of each Lender to make its initial
Advance hereunder are subject to the condition precedent that the Agent shall
have received on or before the Effective Date the following, each (other than
items (f) and (i)) dated the Effective Date, and each in form and substance
satisfactory to the Agent and in sufficient copies for each Lender:
(a) A certificate of an authorized officer of the Managing Partner
to the effect that the copy of the Partnership's Partnership Agreement
delivered to the Agent (and available for inspection by the Lenders) is a
complete and correct copy of the Partnership's Partnership Agreement, as
amended to date.
(b) Certified copies of resolutions of the Board of Directors of
the Managing Partner of the Partnership approving this Agreement, and of all
documents evidencing other necessary partnership action and governmental
approvals, if any, with respect to this Agreement.
(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 Xxxxxx, Xxxx & Xxxxxxxx, special counsel
for the Partnership and the Corporation, substantially in the form of Exhibit
C-1 hereto, and a favorable opinion of Xxxxxxx X. Xxxx, Esq., General Counsel
of the Corporation, substantially in the form of Exhibit C-2 hereto;
(i) Financial statements of the Corporation and its Subsidiaries
specified in Section 4.02(e);
(j) Evidence satisfactory to the Agent of (i) the absence of any
indebtedness of the Partnership or the Corporation under the Existing Credit
Agreements (including borrowings and accrued interest), (ii) the payment of
fees payable, if any, by the Partnership or the Corporation under the Existing
Credit Agreements and (iii) consent to the termination of the Existing Credit
Agreements on the Effective Date by any party thereto which is not a party
hereto.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The obligation
of each Lender to make an A Advance on the occasion of each A Borrowing
(including the initial A Borrowing) shall be subject to the further conditions
precedent that (i) Agent shall have received a Notice of A Borrowing with
respect thereto in accordance with Section 2.02 and (ii) on the date of such A
Borrowing the following statements shall be true (and each of the giving of
the applicable Notice of A Borrowing and the acceptance by the applicable
Borrower of the proceeds of such A Borrowing shall constitute a representation
and warranty by the Partnership and the Corporation that on the date of such A
Borrowing such statements are true):
(a) The representations and warranties of the Partnership and the
Corporation contained in Article IV are correct on and as of the date of such
A Borrowing, before and after giving effect to such A Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date,
except to the extent that any such representation or warranty 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, validly existing and in good standing under the
laws of the jurisdiction indicated at the beginning of this Agreement.
(b) Due Authorization, etc. The execution, delivery and
performance by the Partnership of this Agreement are within the Partnership's
partnership powers, have been duly authorized by all necessary partnership
action, and do not contravene (i) the Partnership's Partnership Agreement or
(ii) applicable law or any material contractual restriction binding on or
affecting the Partnership.
(c) Governmental Consent. No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Partnership of this Agreement.
(d) Validity. This Agreement is the legal, valid and binding
obligation of the Partnership enforceable against the Partnership in
accordance with its terms subject to the effect of applicable bankruptcy,
insolvency, arrangement, 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, 1995, and the related
statements of income and retained earnings of the Partnership and its
Subsidiaries for the fiscal year then ended, copies of which have been
furnished to each Bank, fairly present the financial condition of the
Partnership and its Subsidiaries as at such date and the results of the
operations of the Partnership and its Subsidiaries for the period ended on
such date, all in accordance with GAAP consistently applied, and as of the
Effective Date, there has been no material adverse change in the business,
condition (financial or otherwise), operations or properties of the
Partnership and its Subsidiaries, taken as a whole, since March 31, 1995.
(f) Litigation. (i) There is no pending action or proceeding
against the Partnership or any of its Subsidiaries before any court,
governmental agency or arbitrator, and (ii) to the knowledge of the Managing
Partner of the Partnership, there is no pending or threatened action or
proceeding affecting the
Partnership or any of its Subsidiaries before any court, governmental agency
or arbitrator, which in either case would reasonably be expected to materially
adversely affect the financial condition or operations of the Partnership and
its Subsidiaries, taken as a whole, or which purports to affect the legality,
validity or enforceability of this Agreement.
(g) Margin Regulations. The Partnership is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock in any manner that
violates, or would cause a violation of, Regulation G, Regulation T,
Regulation U or Regulation X.
(h) Payment of Taxes. The Partnership and each of its Subsidiaries
have filed or caused to be filed all material tax returns (federal, state,
local and foreign) required to be filed and paid all material amounts of taxes
shown thereon to be due, including interest and penalties, except for such
taxes as are being contested in good faith and by 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 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. S 9601 et seq.) or any other release, emission or
discharge into the environment of any hazardous or toxic substance, pollutant
or other materials from the Partnership's or its Subsidiaries' property other
than as permitted under applicable Environmental Law and other than those
which would not have a material adverse effect on the financial condition or
operations of the Partnership and its Subsidiaries, taken as a whole. Other
than disposals for which the Partnership has been indemnified in full, all
"hazardous waste" (as defined by the Resource Conservation and Recovery Act,
42 U.S.C. S6901 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) Equifax Put. The Partnership has the right to sell to The
Credit Bureau, Incorporated of Georgia ("CBI"), and require CBI to purchase
and assume, the Accounts Management Assets and Liabilities and the
Subsidiaries' Assets and Liabilities (each as defined in the Processing
Agreement referred to below) on the terms set forth in Article IV of that
certain Agreement for Computerized Credit Reporting Services and Options to
Purchase and Sell Assets dated as of August 1, 1988, without giving effect to
any amendments thereto, among CBI, Equifax Inc., the Corporation and certain
Subsidiaries of the Corporation (the "Processing Agreement").
SECTION 4.02. Representations and Warranties of the Corporation. The
Corporation, in its capacity as a Borrower, represents and warrants as
follows, and the Corporation, in its capacity as the Guarantor, in order to
induce Lenders and Agent to accept the Guaranty and to enter into this
Agreement and to make the Advances hereunder, represents and warrants as
follows:
(a) Due Organization, etc. The Corporation is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Nevada. The Corporation is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions which require such
qualification except to the extent that failure to so qualify would not have a
material adverse effect on the Corporation. Each Subsidiary of the
Corporation is a corporation or a partnership, as the case may be, duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation. Each such Subsidiary is duly
qualified to do business as a foreign corporation or foreign partnership, as
the case may be, in good standing in all other jurisdictions which require
such qualification except to the extent that failure to so qualify would not
have a material adverse effect on such Subsidiary.
(b) Due Authorization, etc. The execution, delivery and
performance by the Corporation of this Agreement are within the Corporation's
corporate powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) the Corporation's certificate of incorporation or
bylaws or (ii) law or any material contractual restriction binding on or
affecting the Corporation.
(c) Governmental Consent. No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Corporation of this Agreement.
(d) Validity. This Agreement is the legal, valid and binding
obligation of the Corporation enforceable against the Corporation in
accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency, arrangement, moratorium and other similar laws affecting
creditors' rights generally and to the application of general principles of
equity.
(e) Condition of the Corporation. The balance sheet of the
Corporation and its Subsidiaries as at March 31, 1995, and the related
statements of income and retained earnings of the Corporation and its
Subsidiaries for the fiscal year then ended, copies of which have been
furnished to each Bank, fairly present the financial condition of the
Corporation and its Subsidiaries as at such date and the results of the
operations of the Corporation and its Subsidiaries for the fiscal year ended
on such date, all in accordance with GAAP consistently applied, and as of the
Effective Date, there has been no material adverse change in the business,
condition (financial or otherwise), operations or properties of the
Corporation and its Subsidiaries, taken as a whole, since March 31, 1995.
(f) Litigation. (i) There is no pending action or proceeding
against the Corporation or any of its Subsidiaries before any court,
governmental agency or arbitrator, and (ii) to the knowledge of the
Corporation, there is no pending or threatened action or proceeding affecting
the Corporation or any of its Subsidiaries before any court, governmental
agency or arbitrator, which in either case would reasonably be expected to
materially adversely affect the financial condition or operations of the
Corporation and its Subsidiaries, taken as a whole, or which purports to
affect the legality, validity or enforceability of this Agreement.
(g) Margin Regulations. The Corporation is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock in any manner that violates
or would cause a violation of Regulation G, Regulation T, Regulation U or
Regulation X.
(h) Payment of Taxes. The Corporation and each of its Subsidiaries
have filed or caused to be filed all material tax returns (federal, state,
local and foreign) required to be filed and paid all material amounts of taxes
shown thereon to be due, including interest and penalties, except for such
taxes as are being contested in good faith and by proper proceedings and with
respect to which appropriate reserves are being maintained by the Corporation
or any such Subsidiary, as the case may be.
(i) Governmental Regulation. The Corporation is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940,
each as amended, or to any Federal or state statute or regulation limiting its
ability to incur indebtedness for money borrowed. No Subsidiary of the
Corporation is subject to any regulation that would limit the ability of the
Partnership or the Corporation to enter into or perform their respective
obligations under this Agreement.
(j) ERISA.
(i) No ERISA Event which might result in liability (other than
for premiums payable under Title IV of ERISA) has occurred or is reasonably
expected to occur with respect to any Pension Plan.
(ii) Schedule B (Actuarial Information) to the most recently
completed annual report (Form 5500 Series) for each Pension Plan, copies of
which have been filed with the Internal Revenue Service and furnished to the
Agent, is complete and, to the best knowledge of the Corporation, accurate,
and since the date of such Schedule B there has been no material adverse
change in the funding status of any such Pension Plan.
(iii) Neither the Corporation nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Corporation, is reasonably expected
to incur, any Withdrawal Liability to any Multiemployer Plan.
(iv) Neither the Corporation nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan
is in reorganization or has been terminated, within the meaning of Title IV of
ERISA, and, to the best knowledge of the Corporation, no Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated within the
meaning of Title IV of ERISA.
(k) Disclosure. No representation or warranty of the Corporation
contained in this Agreement (including any Schedule furnished in connection
herewith) contains any untrue statement of a material fact. No other
document, certificate or written statement furnished to the Agent or any
Lender by or on behalf of the Corporation for use in connection with the
transactions contemplated in this Agreement, taken as a whole with other
documents, certificates or written statements furnished contemporaneously
therewith, contains any untrue statement of fact or omits to state a material
fact (known to the Corporation in the case of any documents not furnished by
it) necessary in order to make the statements contained therein not misleading
in light of the circumstances under which the same were made.
(l) Insurance. The Corporation and its Subsidiaries (i) have in
full force insurance coverage of their respective properties, assets and
business (including casualty, general liability, products liability and
business interruption insurance) that is (A) no less protective in any
material respect than the insurance the Corporation and its Subsidiaries have
carried in 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. S 9601 et seq.) or any other release, emission or
discharge into the environment of any hazardous or toxic substance, pollutant
or other materials from the Corporation's or its Subsidiaries' property other
than as permitted under applicable Environmental Law and other than those
which would not have a material adverse effect on the financial condition or
operations of the Corporation and its Subsidiaries, taken as a whole. Other
than disposals for which the Corporation has been indemnified in full, all
"hazardous waste" (as defined by the Resource Conservation and Recovery Act,
42 U.S.C. S6901 et seq. (1976) and the regulations thereunder, 40 CFR Part 261
("RCRA")) generated at the Corporation's or any Subsidiaries' properties have
in the past been
and shall continue to be disposed of at sites which maintain valid permits
under RCRA and any applicable state or local Environmental Law.
(n) Relationship to the Partnership. (i) The Corporation is the
owner, directly or indirectly (through its Subsidiaries of which it owns at
least 80% of the voting stock), of more than 50% of the partnership interest
of the Partnership; (ii) Lenders' agreement to make the Advances to the
Partnership is of substantial and material benefit to the Corporation; and
(iii) the Corporation has reviewed and approved copies of this Agreement and
is fully informed of the remedies Lenders may pursue upon the occurrence of an
Event of Default.
(o) Equifax Put. The Partnership has the right to sell to CBI, and
require CBI to purchase and assume, the Accounts Management Assets and
Liabilities and the Subsidiaries' Assets and Liabilities (each as defined in
the Processing Agreement) on the terms set forth in Article IV of the
Processing Agreement.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants of the Partnership. The Partnership
covenants and agrees that the Partnership will, so long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, unless the
Majority Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, (i) complying with all
Environmental Laws and (ii) paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith, except where failure to
so comply would not have a material adverse effect on the business, condition
(financial or otherwise), operations or properties of the Partnership and its
Subsidiaries, taken as a whole.
(b) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 110 days
after the end of each fiscal year of the Partnership, a copy of the annual
audit report for such year for the Partnership and its Subsidiaries,
containing financial statements (including a consolidated balance sheet,
consolidated statements of income and partners' equity and cash flows of the
Partnership and its Subsidiaries) for such year, accompanied by an opinion of
Deloitte & Touche or other nationally recognized independent public
accountants. The opinion shall be unqualified (as to going concern, scope of
audit and disagreements over the accounting or other treatment of offsets) and
shall state that such consolidated financial statements present fairly the
financial position of the Partnership and its Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years (except as stated therein) and that the examination by such accountants
in connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(ii) together with each delivery of the report of the
Partnership and its Subsidiaries pursuant to subsection (i) above, a
compliance certificate for the year executed by an authorized financial
officer of the Partnership stating that the signer has reviewed the terms of
this Agreement and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions and condition
of the Partnership and its Subsidiaries during the accounting period covered
by such financial statements and that such review has not
disclosed the existence during or at the end of such accounting period, and
that the signer does not have knowledge of the existence as at the date of the
compliance certificate, of any condition or event that constitutes an Event of
Default or Potential Event of Default or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof and
what action the Partnership has taken, is taking and proposes to take with
respect thereto;
(iii) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each Potential Event of
Default, continuing on the date of such statement, a statement of an
authorized financial officer of the Partnership setting forth details of such
Event of Default or Potential Event of Default and the action which the
Partnership has taken and proposes to take with respect thereto;
(iv) promptly after any significant change in accounting
policies or reporting practices, notice and a description in reasonable detail
of such change;
(v) promptly and in any event within 30 days after the
Partnership or any ERISA Affiliate knows or has reason to know that any ERISA
Event referred to in clause (i) of the definition of ERISA Event with respect
to any Pension Plan has occurred which might result in liability to the PBGC a
statement of the chief accounting officer of the Partnership describing such
ERISA Event and the action, if any, that the Partnership or such ERISA
Affiliate has taken or proposes to take with respect thereto;
(vi) promptly and in any event within 10 days after the
Partnership or any ERISA Affiliate knows or has reason to know that any ERISA
Event (other than an ERISA Event referred to in (v) above) with respect to any
Pension Plan has occurred which might result in liability to the PBGC, a
statement of the chief accounting officer of the Partnership describing such
ERISA Event and the action, if any, that the Partnership or such ERISA
Affiliate has taken or proposes to take with respect thereto;
(vii) promptly and in any event within five Business Days
after receipt thereof by the Partnership or any ERISA Affiliate from the PBGC,
copies of each notice from the PBGC of its intention to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan;
(viii) promptly and in any event within seven Business Days
after receipt thereof by the Partnership or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice received by the
Partnership or any ERISA Affiliate concerning (w) the imposition of Withdrawal
Liability by a Multiemployer Plan, (x) the determination that a Multiemployer
Plan is, or is expected to be, in reorganization within the meaning of Title
IV of ERISA, (y) the termination of a Multiemployer Plan within the meaning of
Title IV of ERISA or (z) the amount of liability incurred, or expected to be
incurred, by the Partnership or any ERISA Affiliate in connection with any
event described in clause (w), (x) or (y) above;
(ix) promptly after the commencement thereof, notice of all
material actions, suits and proceedings before any court or government
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Partnership or any of its Subsidiaries, of the type
described in Section 4.01(f);
(x) promptly after the occurrence thereof, notice of (A) any
event which makes any of the representations contained in Section 4.01(m)
inaccurate in any material respect or (B) the receipt by the Partnership of
any notice, order, directive or other communication from a governmental
authority alleging violations of or noncompliance with any Environmental Law
which could reasonably be expected to have a material adverse effect on the
financial condition of the Partnership and its Subsidiaries, taken as a whole;
(xi) promptly after any change in any Rating, a notice of such
change, which notice shall specify the new Rating, the date on which such
change was publicly announced (in the case of a public rating) or disclosed to
the Corporation (in the case of a private rating), and such other information
with respect to such change as any Lender through the Agent may reasonably
request; and
(xii) such other information respecting the condition or
operations, financial or otherwise, of the Partnership or any of its
Subsidiaries as any Lender through the Agent may from time to time reasonably
request.
(c) Partnership Existence, Etc. The Partnership will, and will
cause each of its Subsidiaries to, at all times maintain its fundamental
business and preserve and keep in full force and effect its partnership
existence (except as permitted under Section 5.02(b) hereof) and all rights,
franchises and licenses necessary or desirable in the normal conduct of its
business.
(d) Maintenance of Insurance. The Partnership will and will cause
each of its Subsidiaries to maintain insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
(i) as are usually insured by companies engaged in similar businesses and (ii)
with responsible and reputable insurance companies. Notwithstanding the
foregoing, the Partnership and its Subsidiaries may maintain a plan or plans
of self-insurance to such extent and covering such risks as is usual for
companies of comparable size engaged in the same or similar business, which
plans shall include, among other things, adequate reserves for the risks that
are self-insured. On request the Partnership will advise the Agent and the
Lenders concerning any such plan or plans for self-insurance.
SECTION 5.02. Negative Covenants of the Partnership. The Partnership
covenants and agrees that, so long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, without the written consent of the
Majority Lenders:
(a) Liens, Etc. The Partnership will not create or suffer to
exist, or permit any of its Subsidiaries to create or suffer to exist, any
Lien, upon or with respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, in each case to secure or provide for the payment
of any Debt of any Person, unless the Partnership's obligations hereunder
shall be secured equally and ratably with, or prior to, any such Debt;
provided however that the foregoing restriction shall not apply to the
following Liens which are permitted:
(i) set-off rights, arising by operation of law or under any
contract entered into in the ordinary course of business, and bankers' Liens,
Liens of carriers, warehousemen, mechanics, workmen, employees, materialmen
and other Liens imposed by law;
(ii) Liens in favor of the United States of America to secure
amounts paid to the Partnership or any of its Subsidiaries as advance or
progress payments under government contracts entered into by it so long as
such Liens cover only (x) special bank accounts into which only such advance
or progress payments are deposited and (y) supplies covered by such government
contracts and material and other property acquired for or allocated to the
performance of such government contracts;
(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 $5,000,000 principal
amount at any time outstanding;
(viii) Liens resulting from any extension, renewal or
replacement (or successive extensions, renewals or replacements), in whole or
in part, of any Debt secured by any Lien referred to in clauses (iv), (v) and
(vi) so long as (x) the aggregate principal amount of any such Debt shall not
increase as a result of any such extension, renewal or replacement and (y)
Liens resulting from any such extension, renewal or replacement shall cover
only such property which secured the Debt that is being extended, renewed or
replaced; and
(ix) Liens on any of the properties described in Exhibit F
hereto to secure Debt, provided that the amount of such Debt does not exceed
100% of the fair market value of the property encumbered by such Lien at the
time such Debt is incurred.
(b) Restrictions on Fundamental Changes. The Partnership will not,
and will not permit any of its Subsidiaries to, merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or a substantial portion of
its assets (whether now owned or hereafter acquired) to any Person (other than
the Corporation or any Subsidiary of the Corporation, so long as the
Corporation owns 80% or more of the voting stock thereof), or enter into any
partnership, joint venture, syndicate, pool or other combination, unless (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.
(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).
(iv) together with each delivery of the Corporation's annual
report pursuant to subsection (ii) above, a written statement by the
independent public accountants giving the report thereon (so long as delivery
of such statement is not prohibited by AICPA rules) (A) stating that their
audit examination has included a review of the terms of this Agreement as they
relate to accounting matters and (B) stating whether, in connection with their
audit examination, any condition or event that constitutes an Event of Default
or a Potential Event of Default has come to their attention, and if such a
condition or event has come to their attention, specifying the nature and
period of existence thereof; provided, that such accountants shall not be
liable by reason of any failure to obtain knowledge of any such Event of
Default or Potential Event of Default that would not be disclosed in the
course of a reasonable audit examination;
(v) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each Potential Event of
Default, continuing on the date of such statement, a statement of an
authorized financial officer of the Corporation setting forth details of such
Event of Default or Potential Event of Default and the action which the
Corporation has taken and proposes to take with respect thereto;
(vi) promptly after any significant change in accounting
policies or reporting practices, notice and a description in reasonable detail
of such change;
(vii) promptly and in any event within 30 days after the
Corporation or any ERISA Affiliate knows or has reason to know that any ERISA
Event referred to in clause (i) of the definition of ERISA Event with respect
to any Pension Plan has occurred which might result in liability to the PBGC a
statement of the chief accounting officer of the Corporation describing such
ERISA Event and the action, if any, that the Corporation or such ERISA
Affiliate has taken or proposes to take with respect thereto;
(viii) promptly and in any event within 10 days after the
Corporation or any ERISA Affiliate knows or has reason to know that any ERISA
Event (other than an ERISA Event referred to in (v) above) with respect to any
Pension Plan has occurred which might result in liability to the PBGC, a
statement of the chief accounting officer of the Corporation describing such
ERISA Event and the action, if any, that the Corporation or such ERISA
Affiliate has taken or proposes to take with respect thereto;
(ix) promptly and in any event within five Business Days after
receipt thereof by the Corporation or any ERISA Affiliate from the PBGC,
copies of each notice from the PBGC of its intention to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan;
(x) promptly and in any event within seven Business Days after
receipt thereof by the Corporation or any ERISA Affiliate from the sponsor of
a Multiemployer Plan, a copy of each notice received by the Corporation or any
ERISA Affiliate concerning (w) the imposition of Withdrawal Liability by a
Multiemployer Plan, (x) the determination that a Multiemployer Plan is, or is
expected to be, in reorganization within the meaning of Title IV of ERISA, (y)
the
termination of a Multiemployer Plan within the meaning of Title IV of ERISA or
(z) the amount of liability incurred, or expected to be incurred, by the
Corporation or any ERISA Affiliate in connection with any event described in
clause (w), (x) or (y) above;
(xi) promptly after the sending or filing thereof, copies of
all proxy statements, financial statements and reports that the Corporation or
any of its Subsidiaries sends to its stockholders generally, and copies of all
regular, periodic and special reports, and all registration statements, that
the Corporation or any of its Subsidiaries files with the SEC or any
governmental authority that may be substituted therefor, or with any national
securities exchange;
(xii) promptly after the furnishing thereof, copies of any
statement or report furnished to any other holder of the securities of the
Corporation or any of its Subsidiaries pursuant to the terms of any indenture,
loan or credit or similar agreement and not otherwise required to be furnished
to the Lenders pursuant to any other clause of this Section 5.03.
(xiii) promptly after the commencement thereof, notice of all
material actions, suits and proceedings before any court or government
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Corporation or any of its Subsidiaries, of the type
described in Section 4.02(f).
(xiv) promptly after the occurrence thereof, notice of (A) any
event which makes any of the representations contained in Section 4.02(l)
inaccurate in any material respect or (B) the receipt by the Corporation of
any notice, order, directive or other communication from a governmental
authority alleging violations of or noncompliance with any Environmental Law
which could reasonably be expected to have a material adverse effect on the
financial condition of the Corporation and its Subsidiaries, taken as a whole;
(xv) promptly after any change in any Rating, a notice of such
change, which notice shall specify the new Rating, the date on which such
change was publicly announced (in the case of a public rating) or was
disclosed to the Corporation (in the case of a private rating), and such other
information with respect to such change as any Lender through Agent may
reasonably request; and
(xvi) such other information respecting the condition or
operations, financial or otherwise, of the Corporation or any of its
Subsidiaries as any Lender through the Agent may from time to time reasonably
request.
(c) Corporate Existence, Etc. The Corporation will, and will cause
each of its material Subsidiaries to, at all times maintain its fundamental
business and preserve and keep in full force and effect its corporate
existence (except as permitted under Section 5.04(b)) and all rights,
franchises and licenses necessary or desirable in the normal conduct of its
business.
(d) Maintenance of Insurance. The Corporation will and will cause
each of its Subsidiaries to maintain insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
(i) as are usually insured by companies engaged in similar businesses and (ii)
with responsible and reputable insurance companies or associations.
Notwithstanding the foregoing, the Corporation and its Subsidiaries may
maintain a plan or plans of self-insurance to such extent and covering such
risks as is usual for companies of comparable size engaged in the same or
similar business, which plans shall include, among other things, adequate
reserves for the risks that are self-insured. On request the Corporation will
advise the Agent and the Lenders concerning any such plan or plans for self-
insurance.
(e) Relationship to the Partnership. The Corporation shall keep
itself informed as to the status of the transactions contemplated or referred
to herein, the Partnership's financial status and its ability to perform its
obligations under this Agreement.
SECTION 5.04. Negative Covenants of the Corporation. The Corporation
covenants and agrees that, unless and until all of the Advances shall have
been indefeasibly paid in full, the Commitments of the Lenders shall have
terminated and all of the Guarantied Obligations shall have been indefeasibly
paid in full, unless Majority Lenders shall otherwise consent in writing:
(a) Liens, Etc. The Corporation will not create or suffer to
exist, or permit any of its Subsidiaries to create or suffer to exist, any
Lien, upon or with respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, in each case to secure or provide for the payment
of any Debt of any Person, unless the Corporation's obligations hereunder
shall be secured equally and ratably with, or prior to, any such Debt;
provided however that the foregoing restriction shall not apply to the
following Liens which are permitted:
(i) set-off rights, arising by operation of law or under any
contract entered into in the ordinary course of business, and bankers' Liens,
Liens of carriers, warehousemen, mechanics, workmen, employees, materialmen
and other Liens imposed by law;
(ii) Liens in favor of the United States of America to secure
amounts paid to the Corporation or any of its Subsidiaries as advance or
progress payments under government contracts entered into by it so long as
such Liens cover only (x) special bank accounts into which only such advance
or progress payments are deposited and (y) supplies covered by such government
contracts and material and other property acquired for or allocated to the
performance of such government contracts;
(iii) attachment, judgment and other similar Liens arising in
connection with legal proceedings, provided that the execution or other
enforcement of such Liens is effectively stayed and the claims secured thereby
are being contested in good faith by appropriate proceedings, and provided
that any such judgment does not constitute an Event of Default;
(iv) Liens on accounts receivable resulting from the sale of
such accounts receivable;
(v) Liens on assets of any Subsidiary of the Corporation
existing at the time such Person becomes a Subsidiary (other than any such
Lien created in contemplation of becoming a Subsidiary);
(vi) purchase money Liens upon or in any property acquired or
held by the Corporation or any Subsidiary in the ordinary course of business
to secure the purchase price of such property or to secure Debt incurred
solely for the purpose of financing the acquisition of such property (provided
that the amount of Debt secured by such Lien does not exceed 100% of the
purchase price of such property and transaction costs relating to such
acquisition) and Liens existing on such property at the time of its
acquisition (other than any such Lien created in contemplation of such
acquisition); and the interest of the lessor thereof in any property that is
subject to a Capital Lease;
(vii) Liens, other than Liens described in clauses (i) through
(vi) and in clause (ix), to secure Debt not in excess of an aggregate of
$5,000,000 principal amount at any time outstanding;
(viii) Liens resulting from any extension, renewal or
replacement (or successive extensions, renewals or replacements), in whole or
in part, of any Debt secured by any Lien referred to in clauses (iv), (v) and
(vi) so long as (x) the aggregate principal amount of any such Debt shall not
increase as a result of any such extension, renewal or replacement and (y)
Liens resulting from any such extension, renewal or replacement shall cover
only such property which secured the Debt that is being extended, renewed or
replaced; and
(ix) Liens on any of the properties described in Exhibit G
hereto to secure Debt, provided that the amount of such Debt does not exceed
100% of the fair market value of the property encumbered by such Lien at the
time such Debt is incurred.
(b) Restrictions on Fundamental Changes. The Corporation will not,
and will not permit any of its Subsidiaries to, merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or a substantial portion of
its assets (whether now owned or hereafter acquired) to any Person (other than
the Corporation or any Subsidiary of the Corporation, so long as the
Corporation owns 80% or more of the voting stock thereof), or enter into any
partnership, joint venture, syndicate, pool or other combination, unless (a)
no Event of Default or Potential Event of Default has occurred and is
continuing or would result therefrom and (b) in the case of any consolidation
or merger involving the Corporation either (i) the Corporation is the
surviving entity or (ii) the Person surviving or resulting from such
consolidation or merger shall have assumed the obligations of the Corporation
hereunder in an agreement or instrument reasonably satisfactory in form and
substance to the Agent.
(c) Financial Covenants.
(i) Leverage Ratio. The Corporation will not permit at any
time the ratio of Consolidated Total Debt to Consolidated Total Capitalization
to exceed 0.45 to 1.00.
(ii) Minimum Interest Coverage Ratio. The Corporation will
not permit the ratio of Consolidated Gross Cash Flow for the four consecutive
fiscal quarters ending on the last day of each fiscal quarter to Consolidated
Interest Expense for such four consecutive fiscal quarters ending on the last
day of each fiscal quarter to be less than 3.50 to 1.00.
(d) Plan Terminations. The Corporation will not, and will not
permit any ERISA Affiliate to, terminate any Pension Plan so as to result in
liability of the Corporation or any ERISA Affiliate to the PBGC in excess of
$15,000,000, or permit to exist any occurrence of an event or condition which
reasonably presents a material risk of a termination by the PBGC of any
Pension Plan with respect to which the Corporation or any ERISA Affiliate
would, in the event of such termination, incur liability to the PBGC in excess
of $15,000,000.
(e) Employee Benefit Costs and Liabilities. The Corporation will
not, and will not permit any ERISA Affiliate to, create or suffer to exist,
(i) any Insufficiency with respect to a Pension Plan or any Withdrawal
Liability with respect to a Multiemployer Plan if, immediately after giving
effect thereto, such Insufficiencies and Withdrawal Liabilities of all Pension
Plans and Multiemployer Plans, respectively, of the Corporation and its ERISA
Affiliates exceeds $25,000,000 or (ii) except as provided in Section 4980B of
the Code and except as provided under the terms of any employee welfare
benefit plans provided pursuant to the terms of collective bargaining
agreements, any employee benefit plan to provide health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employee of the Corporation or any of its ERISA Affiliate unless the
Corporation and/or any of its ERISA Affiliates are permitted to terminate such
benefits pursuant to the terms of such employee benefit plan.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable or either Borrower shall fail to pay any
interest on any Advance or any fees or other amounts payable hereunder within
five days of the date due; or
(b) The Guarantor shall fail to pay any Guarantied Obligations when
the same becomes due and payable; or
(c) Any representation or warranty made by the Partnership or the
Corporation herein or by the Partnership (or any of its or the Managing
Partner's officers) or the Corporation in connection with this Agreement shall
prove to have been incorrect in any material respect when made; or
(d) The Partnership shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(c) or 5.02, or (ii) any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if the failure to perform or observe such other term,
covenant or agreement shall remain unremedied for 30 days after the
Partnership obtains knowledge of such breach; or
(e) The Corporation shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.03(c) or 5.04, or (ii) any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if the failure to perform or observe such other term,
covenant or agreement shall remain unremedied for 30 days after the
Corporation obtains knowledge of such breach; or
(f) The Corporation, the Partnership or any of their respective
Subsidiaries shall fail to pay any principal of or premium or interest on any
Debt which is outstanding in a principal amount of at least $25,000,000 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
Subsidiaries shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall make
a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Corporation, the Partnership or any of their
respective Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for substantial part of its
property and, in the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Corporation, the
Partnership or any of their respective Subsidiaries shall take any corporate
or partnership action to authorize any of the actions set forth above in this
subsection (g); or
(h) Any judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Corporation, the Partnership or any
of their respective Subsidiaries and is not promptly paid by the Corporation,
the Partnership or any of their respective Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 10 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect;
(i) Any provision of the Guaranty shall for any reason cease to be
valid and binding on the Guarantor or the Guarantor shall so state in writing;
or
(j)
(i) Any ERISA Event with respect to a Pension Plan shall have
occurred and, 30 days after notice thereof shall have been given to the
Borrowers by the Agent, (x) such ERISA Event shall still exist and (y) the sum
(determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Pension Plan and the Insufficiency of any and all other
Pension Plans with respect to which an ERISA Event shall have occurred and
then exist (or in the case of a Pension Plan with respect to which an ERISA
Event described in clause (iii) through (vi) of the definition of ERISA Event
shall have occurred and then exist, the liability related thereto) is equal to
or greater than $15,000,000; or
(ii) Either Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred an
aggregate Withdrawal Liability for all years to such Multiemployer Plan in an
amount that, when aggregated with all other amounts required to be paid to
Multiemployer Plans by such Borrower and its ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$15,000,000; or
(iii) Either Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan
is in reorganization or is being terminated, within the meaning of Title IV or
ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of such Borrower and its ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the plan year of such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $15,000,000; or
(k) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities and Exchange Act of
1934, as amended), directly or indirectly, of securities of the Corporation
(or other securities convertible into such securities) representing 35% or
more of the combined voting power of all securities of the Corporation
entitled to vote in the election of directors, other than securities having
such power only by reason of the happening of a contingency; or
(l) The Corporation or any of its Subsidiaries shall be suspended
or debarred by any governmental entity from entering into any government
contract or government subcontract from otherwise engaging in any business
relating to government contracts or from participation in government
non-procurement programs, and such suspension or debarment could reasonably be
expected to have a material adverse effect on the business, condition
(financial or otherwise), operations or properties of the Corporation and its
Subsidiaries, taken as a whole;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrowers, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are here expressly waived by the Borrowers; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Corporation, the Partnership or any of their respective Subsidiaries under
the Federal Bankruptcy Code, (A) the obligation of each Lender to make
Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by the Borrowers.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of the Advances and other
amounts owing hereunder), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders, and such instructions shall be
binding upon all Lenders; provided, however, that the Agent shall not be
required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or applicable law. The Agent agrees to
give to each Lender prompt notice of each notice given to it by either
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may
treat the payee of any Advance as the holder thereof until the Agent receives
and accepts an Assignment and Acceptance entered into by the Lender which is
the payee of such Advance, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 9.07; (ii) may consult with legal counsel (including
counsel for the Borrowers), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in or in
connection with this Agreement; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement on the part of the Partnership or the
Corporation or to inspect the property (including the books and records) of
the Partnership or the Corporation; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03. CUSA and Affiliates. With respect to its Commitment, the
Advances made by it, CUSA shall have the same rights and powers under this
Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include CUSA in its individual
capacity. CUSA and its affiliates may accept deposits from, lend money to,
act as trustee under indentures of, and generally engage in any kind of
business with, the Borrowers, any of their respective subsidiaries and any
Person who may do business with or own securities of either Borrower or any
such subsidiary, all as if CUSA were not the Agent and without any duty to
account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by the Borrowers), ratably according to the
respective principal amounts of the A Advances then held by each of them (or
if no A Advances are at the time outstanding or if any A Advances are held by
Persons which are not Lenders, ratably according to the respective amounts of
their Commitments), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by the
Agent in connection with the preparation, execution, delivery, administration,
syndication, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement, to the extent that the
Agent is not reimbursed for such expenses by the Borrowers.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrowers and may be
removed at any time with or without cause by the Majority Lenders. Upon any
such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Majority Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof or any Bank and, in each case having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement.
ARTICLE VIII
THE GUARANTY
SECTION 8.01. Guaranty of the Guarantied Obligations. The Guarantor
hereby irrevocably and unconditionally guaranties, as primary obligor and not
merely as surety, the due and punctual payment in full of all Guarantied
Obligations when and as the same shall become due, whether at stated maturity,
by required prepayment or declaration of (or in certain circumstances
automatic) acceleration (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. S 362(a)). The term "Guarantied Obligations" is used herein in its
most comprehensive sense and includes:
(a) any and all obligations of the Partnership in respect of notes,
advances, borrowings, loans, debts, interest, fees, costs, expenses
(including, without limitation, legal fees and expenses of counsel),
indemnities and liabilities of whatsoever nature now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or
unliquidated, whether due or not due, arising under or in connection with this
Agreement, including those arising under successive borrowing transactions
under this Agreement which shall either continue such obligations of the
Partnership or from time to time renew them after they have been satisfied;
and
(b) those expenses set forth in Section 8.07 hereof.
This Article VIII, as it may be amended, amended and restated,
supplemented or otherwise modified from time to time, is sometimes referred to
herein as the "Guaranty" or this "Guaranty".
SECTION 8.02. Liability of the Guarantor. The Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than indefeasible payment
in full of the Guarantied Obligations. In furtherance of the foregoing and
without limiting the generality thereof, the Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) The obligations of the Guarantor hereunder are independent of
the obligations of the Partnership hereunder and the obligations of any other
guarantor of the obligations of the Partnership hereunder, and a separate
action or actions may be brought and prosecuted against the Guarantor whether
or not any action is brought against the Partnership or any of such other
guarantors and whether or not the Partnership is joined in any such action or
actions.
(c) The Guarantor's payment of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge the
Guarantor's liability for any portion of the Guarantied Obligations which has
not been paid. Without limiting the generality of the foregoing, if Agent is
awarded a judgment in any suit brought to enforce the Guarantor's covenant to
pay a portion of the Guarantied Obligations, such judgment shall not be deemed
to release the Guarantor from its covenant to pay the portion of the
Guarantied Obligations that is not the subject of such suit.
(d) The Agent or any Lender, upon such terms as it deems
appropriate, without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any reduction, limitation,
impairment, discharge or termination of the Guarantor's liability hereunder,
from time to time may (i) renew, extend (whether pursuant to Section 2.16 or
otherwise), accelerate (in accordance with the terms of this Agreement),
increase the rate of interest on, or otherwise change the time, place, manner
or terms of payment of the Guarantied Obligations, (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with
respect to, or substitutions for, the Guarantied Obligations or any agreement
relating thereto and/or subordinate the payment of the same to the payment
of any other obligations; (iii) request and accept other guaranties of the
Guarantied Obligations and take and hold security for the payment of this
Guaranty or the Guarantied Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the Guarantied
Obligations, any other guaranties of the Guarantied Obligations, or any other
obligation of any Person with respect to the Guarantied Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of
Agent or any Lender in respect of this Guaranty or the Guarantied Obligations
and direct the order or manner of sale thereof, or exercise any other right or
remedy that Agent or Lenders, or any of them, may have against any such
security, as Agent in its discretion may determine consistent with this
Agreement and any applicable security agreement, including foreclosure on any
such security pursuant to one or more judicial or nonjudicial sales, whether
or not every aspect of any such sale is commercially reasonable, and even
though such action operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of the Guarantor against the
Partnership or any security for the Guarantied Obligations; and (vi) exercise
any other rights available to it hereunder.
(e) This Guaranty and the obligations of the Guarantor hereunder
shall be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than
indefeasible payment in full of the Guarantied Obligations), including without
limitation the occurrence of any of the following, whether or not the
Guarantor shall have had notice or knowledge of any of them: (i) any failure
or omission to assert or enforce or agreement or election not to assert or
enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any
right, power or remedy (whether arising hereunder, at law, in equity or
otherwise) with respect to the Guarantied Obligations or any agreement
relating thereto, or with respect to any other guaranty of or security for the
payment of the Guarantied Obligations; (ii) any rescission, waiver, amendment
or modification of, or any consent to departure from, any of the terms or
provisions (including without limitation provisions relating to events of
default) of this Agreement, or any agreement or instrument executed pursuant
thereto, or of any other guaranty or security for the Guarantied Obligations,
in each case whether or not in accordance with the terms of this Agreement or
any agreement relating to such other guaranty or security; (iii) the
Guarantied Obligations, or any agreement relating thereto, at any time being
found to be illegal, invalid or unenforceable in any respect; (iv) the
application of payments received from any source (other than payments received
from the proceeds of any security for the Guarantied Obligations, except to
the extent such security also serves as collateral for indebtedness other than
the Guarantied Obligations) to the payment of indebtedness other than the
Guarantied Obligations, even though Agent or Lenders, or any of them, might
have elected to apply such payment to any part or all of the Guarantied
Obligations; (v) any Lender's or Agent's consent to the change, reorganization
or termination of the corporate or partnership structure or existence of the
Partnership or any of its Subsidiaries and to any corresponding restructuring
of the Guarantied Obligations; (vi) any failure to perfect or continue
perfection of a security interest in any collateral which secures any of the
Guarantied Obligations; (vii) any defenses which the Partnership may allege or
assert against Agent or any Lender in respect of the Guarantied Obligations,
including but not limited to statute of frauds, statute of limitations, and
usury; and (viii) any other act or thing or omission, or delay to do any other
act or thing, which may or might in any manner or to any extent vary the risk
of the Guarantor as an obligor in respect of the Guarantied Obligations.
SECTION 8.03. Waivers by the Guarantor. The Guarantor hereby waives,
for the benefit of Lenders and Agent:
(a) any right to require Agent or Lenders, as a condition of
payment or performance by the Guarantor, to (i) proceed against the
Partnership, any other guarantor of the Guarantied Obligations or any other
Person, (ii) proceed against or exhaust any security held from the
Partnership, any other guarantor of the Guarantied Obligations or any other
Person, (iii) proceed against or have resort to any balance of any deposit
account or credit on the books of Agent or any Lender in favor of the
Partnership or any other Person, or (iv) pursue any other remedy in the power
of Agent or any Lender whatsoever;
(b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of the Partnership including,
without limitation, any defense based on or arising out of the lack of
validity or the unenforceability of the Guarantied Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of the Partnership from any cause other than indefeasible payment in
full of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor
in other respects more burdensome than that of the principal;
(d) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this Guaranty
and any legal or equitable discharge of the Guarantor's obligations hereunder,
(ii) the benefit of any statute of limitations affecting the Guarantor's
liability hereunder or the enforcement hereof, and (iii) promptness, diligence
and any requirement that Agent or any Lender protect, secure, perfect or
insure any security interest or lien or any property subject thereto;
(e) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including
acceptance of this Guaranty, notices of default hereunder or any agreement or
instrument related thereto, notices of any renewal, extension or modification
of the Guarantied Obligations or any agreement related thereto, notices of any
extension of credit to the Partnership and notices of any of the matters
referred to in Section 8.02 and any right to consent to any thereof; and
(f) any defenses or benefits that may be derived from or afforded
by law which limit the liability of or exonerate guarantors or sureties, or
which may conflict with the terms of this Guaranty.
SECTION 8.04. Payment by the Guarantor. The Guarantor hereby agrees, in
furtherance of the foregoing and not in limitation of any other right which
Agent or any other Person may have at law or in equity against the Guarantor
by virtue hereof, upon the failure of the Partnership to pay any of the
Guarantied Obligations when and as the same shall become due, whether at
stated maturity, by required prepayment or declaration of (or, in certain
circumstances, automatic) acceleration, (including amounts that would become
due but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. S 362(a)), the Guarantor will forthwith pay, or
cause to be paid, in cash, to Agent for the benefit of Lenders, an amount
equal to the sum of the unpaid principal amount of all Guarantied Obligations
then due as aforesaid, accrued and unpaid interest on such Guarantied
Obligations (including, without limitation, interest which, but for the filing
of a petition in bankruptcy with respect to the Partnership, would have
accrued on such Guarantied Obligations, whether or not a claim is allowed
against the Partnership for such interest in any such bankruptcy proceeding)
and all other Guarantied Obligations then owed to Agent and/or Lenders as
aforesaid.
SECTION 8.05. Subrogation. Until the Guarantied Obligations shall have
been indefeasibly paid in full, the Guarantor shall withhold exercise of (a)
any right of subrogation, (b) any right of contribution the Guarantor may have
against any other guarantor of the Guarantied Obligations, (c) any right to
enforce any remedy which Agent or any Lender now has or may hereafter have
against the Partnership or (d) any benefit of, and any right to participate
in, any security now or hereafter held by Agent or any Lender. The Guarantor
further agrees that, to the extent that its agreement to defer exercising any
of its rights of subrogation and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation the Guarantor may have against the Partnership or
against any collateral or security, and any rights of contribution the
Guarantor may have against any other guarantor, shall be junior and
subordinate to any rights Agent or Lenders may have against the Partnership,
to all right, title and interest Agent or Lenders may have in any such
collateral or security, and to any right Agent or Lenders may have against
such other guarantor. Agent, on behalf of Lenders, may use, sell or dispose
of any item of collateral or security as it sees fit without regard to any
subrogation rights the Guarantor may have, and upon any such disposition or
sale any rights of subrogation the Guarantor may have shall terminate. If any
amount shall be paid to the Guarantor on account of such subrogation
rights at any time when all Guarantied Obligations shall not have been paid in
full, such amount shall be held in trust for Agent on behalf of Lenders and
shall forthwith be paid over to Agent for the benefit of Lenders to be
credited and applied against the Guarantied Obligations in accordance with the
terms of this Agreement or any applicable security agreement.
SECTION 8.06. Subordination of Other Obligations. Any indebtedness of
the Partnership or any Subsidiary of the Partnership now or hereafter held by
the Guarantor is hereby subordinated in right of payment to the Guarantied
Obligations, and any such indebtedness of the Partnership or any Subsidiary of
the Partnership to the Guarantor collected or received by the Guarantor after
an Event of Default resulting from a payment default has occurred and is
continuing or after an acceleration of the Guarantied Obligations shall be
held in trust for Agent on behalf of Lenders and shall forthwith be paid over
to Agent for the benefit of Lenders to be credited and applied against the
Guarantied Obligations but without affecting, impairing or limiting in any
manner the liability of the Guarantor under any other provision of this
Guaranty.
SECTION 8.07. Expenses. The Guarantor agrees to pay, or cause to be
paid, and to save Agent and Lenders harmless against liability for, any and
all reasonable costs and out-of-pocket expenses (including fees and
disbursements of counsel) incurred or expended by Agent or any Lender in
connection with the enforcement of or preservation of any rights under this
Guaranty.
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
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 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 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, 0000 Xxxx Xxxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx, 00000,
Attention: Xxxx X. Level; if to the Partnership, at its address at CSC
Enterprises, 0000 X. Xxxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxx X. Level; if to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Agent, (A) for all notices and
communications relating to borrowings or repayments, including,
without limitation, any Notice of Borrowing, Notice of Conversion/Continuation
or notice of repayment or prepayment, at its address at Citicorp USA, Inc.,
c/o Citicorp Securities, Inc., Xxx Xxxxx Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx Xxxxxx/Xxx Xxxxx, and (B) for all other notices and
communications at its address at Citicorp USA, Inc., 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxx; or, as to
the Corporation, the Partnership or the Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as
to each other party, at such other address as shall be designated by such
party in a written notice to the Corporation, the Partnership and the Agent.
All such notices and communications shall, when personally delivered, mailed,
telecopied, telegraphed, telexed or cabled, be effective when personally
delivered, after five (5) days after being deposited in the mails, when
delivered to the telegraph company, when confirmed by telex answerback or when
delivered to the cable company, respectively, except that notices and
communications to the Agent pursuant to Article II or VII shall not be
effective until received by the Agent.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender
or the Agent to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 9.04. Costs, Expenses and Indemnification. (a) The Partnership
and the Corporation jointly and severally agree to pay promptly on demand all
reasonable costs and out-of-pocket expenses of Agent in connection with the
preparation, execution, delivery, administration, syndication, modification
and amendment of this Agreement, and the other documents to be delivered
hereunder or thereunder, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and responsibilities
hereunder. The Partnership and the Corporation further jointly and severally
agree to pay promptly on demand all costs and expenses of the Agent and of
each Lender, if any (including, without limitation, reasonable counsel fees
and out-of-pocket expenses), in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of this Agreement and
the other documents to be delivered hereunder, including, without limitation,
reasonable counsel fees and out-of-pocket expenses in connection with the
enforcement of rights under this Section 9.04(a).
(b) If any payment of principal of any Eurodollar Rate Advance or B
Advance extended to either Borrower is made other than on the last day of the
interest period for such Advance, as a result of a payment pursuant to Section
2.06 or acceleration of the maturity of the Advances pursuant to Section 6.01
or for any other reason, such Borrower shall, upon demand by any Lender (with
a copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses which it may reasonably incur as a result of such
payment, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Advance.
(c) The Partnership and the Corporation jointly and severally agree
to indemnify and hold harmless the Agent, each Lender and each director,
officer, employee, agent, attorney and affiliate of the Agent and each Lender
(each an "indemnified person") in connection with any expenses, losses,
claims, damages or liabilities to which the Agent, a Lender or such
indemnified persons may become subject, insofar as such expenses, losses,
claims, damages or liabilities (or actions or other proceedings commenced or
threatened in respect thereof) arise out of the transactions referred to in
this Agreement or arise from any use or intended use of the proceeds of the
Advances, or in any way arise out of activities of the Borrowers or the
Guarantor that violate Environmental Laws, and to reimburse the Agent, each
Lender and each indemnified person, upon their demand, for any reasonable
legal or other out-of-pocket expenses incurred in connection with
investigating, defending or participating in any such loss, claim, damage,
liability, or action or other proceeding, whether commenced or threatened
(whether or not the Agent, such Lender or any such person is a party to any
action or proceeding out of which any such expense arises). Notwithstanding
the foregoing, the Corporation and the Partnership shall have no obligation
hereunder to an indemnified person with respect to indemnified liabilities
which have resulted from the gross negligence, bad faith or willful misconduct
of such indemnified person.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section
6.01, each Lender is hereby authorized at any time 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 Agreements and (ii) the
Existing Credit Agreements 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 the lesser
of (A) $10,000,000 and (B) the quotient derived from dividing the product of
(x) $10,000,000 times (y) the aggregate amount of all Commitments (determined
as of the date of the Assignment and Acceptance with respect to such
assignment) by the greater of (1) $350,000,000 or (2) the aggregate amount of
the Commitments, (iii) each such assignment shall be to an Eligible Assignee,
and (iv) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, and a processing and recordation fee of $2,500. Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder and (y) the Lender
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto). Any Lender may
at any time pledge or assign all or any portion of its rights hereunder to 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 $2,500
with respect thereto) and upon consent of the Borrowers thereto, which consent
shall not be unreasonably withheld, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit B
hereto, (1) accept such Assignment and Acceptance and (2) record the
information contained therein in the Register. All communications with the
Borrowers with respect to such consent of the Borrowers shall be either sent
pursuant to Section 9.02 or sent to the following: CSC Enterprises, 0000 X.
Xxxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Level,
Telephone No.: (000) 000-0000, Facsimile No.: (000) 000-0000.
(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
York state or Federal court. The Partnership and the Corporation hereby
irrevocably waive, to the fullest extent they may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding. The Partnership and the Corporation agree that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Section 9.10 shall affect the right of any Lender or
Agent to serve legal process in any other manner permitted by law or affect
the right of any Lender or Agent to bring any action or proceeding against the
Partnership and the Corporation or their respective property in the courts of
any other jurisdiction.
SECTION 9.11. Waiver of Trial by Jury. THE PARTNERSHIP, THE
CORPORATION, THE BANKS, THE AGENT AND, BY ITS ACCEPTANCE OF THE BENEFITS
HEREOF, OTHER LENDERS EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. The scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including without limitation contract claims, tort
claims, breach of duty claims and all other common law and statutory claims.
The Partnership, the Corporation, the Banks, the Agent and, by its acceptance
of the benefits hereof, other Lenders each (i) acknowledges that this waiver
is a material inducement for the Partnership, the Corporation, the Lenders and
the Agent to enter into a business relationship, that the Partnership, the
Corporation, the Lenders and the Agent have already relied on this waiver in
entering into this Agreement or accepting the benefits thereof, as the case
may be, and that each will continue to rely on this waiver in their related
future dealings and (ii) further warrants and represents that each has
reviewed this waiver with its legal counsel, and that each knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the
event of litigation, this Agreement may be filed as a written consent to a
trial by the court.
SECTION 9.12. Limited Liability of Certain Partners of the Partnership.
The Agent and each Lender agree for themselves and their successors and
assigns that any claim against Equifax Ventures Inc., CBI Ventures Inc. and
Merel Corporation or their successors (collectively, the "Limited Liability
Partners") which may arise hereunder shall be made only against and shall be
limited to the partnership interest in the Partnership owned by such Limited
Liability Partners, any right to proceed against any Limited Liability Partner
individually or any of their respective assets, other than with respect to
their respective partnership interests in the Partnership, being hereby
expressly waived and renounced by the Agent and each Lender. Nothing in this
Section 9.12 shall be construed so as to prevent the Agent or any Lender from
commencing any legal action, suit or proceeding with respect to, or causing
legal papers to be served upon, any of the Limited Liability Partners for the
purpose of obtaining jurisdiction over the Partnership or any of the Limited
Liability Partners.
SECTION 9.13. Survival of Warranties. All agreements, representations
and warranties made in this Agreement shall survive the execution and delivery
of this Agreement and any increase in the Commitments under this Agreement.
SECTION 9.14. Severability. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 9.15. Headings. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
COMPUTER SCIENCES CORPORATION, a Nevada
corporation,
as Borrower and as Guarantor
By /s/ Xxxx X. Level
-----------------
Xxxx X. Level
Title: Vice President
CSC ENTERPRISES,
a Delaware general partnership,
as Borrower
By CSC ENTERPRISES, INC.
Its Managing Partner
By /s/ Xxxx X. Level
-----------------
Xxxx X. Level
Title: Vice President
CITICORP USA, INC.,
as Agent
By /s/ Xxxxxxxx Xxxxxxxxx
----------------------
Xxxxxxxx Xxxxxxxxx
Title: Vice President
Commitment Banks
---------- -----
$45,000,000.00 CITICORP USA, INC.
By /s/ Xxxxxxxx Xxxxxxxxx
----------------------
Xxxxxxxx Xxxxxxxxx
Title: Vice President
$30,000,000.00 BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By /s/ Xxxx Xxxxxxxxxxx
--------------------
Xxxx Xxxxxxxxxxx
Title: Vice President
$30,000,000.00 CHEMICAL BANK
By /s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx
Title: Managing Director
$30,000,000.00 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx
Title: Vice President
$20,000,000.00 BANK BRUSSELS XXXXXXX
NEW YORK BRANCH
By /s/ Xxxx Xxxxxxxxxx
-------------------
Xxxx Xxxxxxxxxx
Title: Senior Vice President
Credit Department
By /s/ Xxxxxxxx X.X. Vanaever
--------------------------
Xxxxxxxx X.X. Vanaever
Title: Vice President
Credit Department
$20,000,000.00 THE BANK OF NEW YORK
By /s/ Xxxxx Xxxxxxxxx
-------------------
Xxxxx Xxxxxxxxx
Title: Vice President
$20,000,000.00 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ L. Xxxx Xxxxx
-----------------
L. Xxxx Xxxxx
Title: Senior Vice President
$20,000,000.00 MELLON BANK, N.A.
By /s/ Xxxxxxxx X. Xxxx
--------------------
Xxxxxxxx X. Xxxx
Title: Vice President
$20,000,000.00 NATIONAL WESTMINSTER BANK PLC
Los Angeles Overseas Branch
By /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
Title: Vice President
$20,000,000.00 NATIONSBANK OF TEXAS, N.A.
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
$20,000,000.00 NBD BANK
By /s/ Xxxxx X. Xxxx
-----------------
Xxxxx X. Xxxx
Title: First Vice President
$15,000,000.00 ABN AMRO BANK N.V.
Los Angeles International Branch
By /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
Title: Vice President
By /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
Title: Asistant Vice President
$15,000,000.00 THE BANK OF NOVA SCOTIA
By /s/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
Title: Sr. Relationship Manager
$15,000,000.00 CORESTATES BANK, N.A.
By /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
Title: Vice President
$15,000,000.00 FIRST INTERSTATE BANK OF CALIFORNIA
By /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
Title: Senior Vice President
$15,000,000.00 SOCIETE GENERALE
By /s/ X. Xxxxxx Xxxxxxx
---------------------
X. Xxxxxx Xxxxxxx
Title: Vice President
$350,000,000 Total of the Commitments
SCHEDULE I
COMPUTER SCIENCE CORPORATION and CSC ENTERPRISES
CREDIT AGREEMENT
Name of Bank Domestic Lending Office Eurodollar Lending Office
CITICORP USA, INC. c/o Citicorp Securities, Inc. c/o Citicorp Securities, Inc
One Court Square Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000 Xxxx Xxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
Xxx Xxxxx Xxx Xxxxx
BANK OF AMERICA 0000 Xxxxxxx Xxxx. 0000 Xxxxxxx Xxxx.
NATIONAL TRUST AND 4th Floor 4th Floor
SAVINGS ASSOCIATION Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
CHEMICAL BANK 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
0xx Xxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
XXXXXX GUARANTY X.X. Xxxxxx Services, Inc. Nassau Bahamas Office
TRUST COMPANY OF 000 Xxxxxxx-Xxxxxxxxxx Xxxx c/o X.X.Xxxxxx Services,Inc.
XXX XXXX Xxxxxx, XX 00000-0000 000 Xxxxxxx-Xxxxxxxxxx Xxxx
Attn: Loan Department Newark, DE 19713-2107
Attention: Loan Department
THE BANK OF 00000 Xxxxxxxx Xxxx. 00000 Xxxxxxxx Xxxx
XXX XXXX Xxxxx 0000 Xxxxx 0000
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
THE FIRST NATIONAL 1 First National Plaza 1 First National Plaza
BANK OF CHICAGO Xxxxx 0000, 0-00 Xxxxx 0000, 0-00
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
MELLON BANK, N.A. Three Mellon Bank Center Three Mellon Bank Center
Room 2304 Room 2304
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
NATIONSBANK OF 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
XXXXX, N.A. 00xx Xxxxx 00xx Xxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
NBD BANK, N.A. 000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
National Banking Division National Banking Division
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
BANK BRUSSELS 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
XXXXXXX, XXX XXXX Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
BRANCH
XXX XXXX XX XXXX 000 Xxxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx
XXXXXX 00xx Xxxxx 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
CORESTATES BANK, P. O. Box 7618 P. O. Box 7618
N.A. Broad & Chestnut Streets Broad & Chestnut Streets
Philadelphia, PA 19101-7618 Xxxxxxxxxxxx, XX 00000-0000
FIRST INTERSTATE 000 Xxxxxxxx Xxxx. 707 Wilshire Blvd.
BANK XX XXXXXXXXXX Xxxxx X00-00 Xxxxx X00-00
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
NATIONAL Los Angeles Overseas Branch Nassau Branch
WESTMINSTER BANK c/o National Westminster 000 Xxxxx Xxxxxx
PLC Bank PLC Xxx Xxxx, XX 00000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
SOCIETE GENERALE 0000 Xxxxxxx Xxxx Xxxx 0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000 Xxxxx 0000
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
ABN AMRO BANK N.V. Los Angeles International Los Angleles International
Branch Branch
000 Xxxxx Xxxxx Xxx., 000 Xxxxx Xxxxx Xxx.,
Xxxxx 0000 Xxxxx 0000
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
EXHIBIT A-1
NOTICE OF A BORROWING
[Date]
Citicorp USA, Inc., as Agent
for the Lenders party
to the Credit Agreement
referred to below
c/o Citicorp Securities, Inc.
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx/Xxx Xxxxx
Gentlemen:
Each of the undersigned, CSC Enterprises (the "Partnership") and Computer
Sciences Corporation (the "Corporation"), refers to the Credit Agreement dated
as of September 6, 1995 (as amended from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined), among the
Partnership, the Corporation, certain Lenders party thereto and Citicorp USA,
Inc., as Agent for said Lenders. The [Partnership] [Corporation] hereby gives
you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that
the [Partnership] [Corporation] hereby requests an A Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such A Borrowing (the "Proposed A Borrowing") as required by
Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is
___________, 19__.
(ii) The Type of A Advances comprising the Proposed A
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$______________.
(iv) If the Type of A Advances comprising the Proposed A
Borrowing is Eurodollar Rate Advances, the Interest Period for each A Advance
made as part of the Proposed A Borrowing is __ month[s].
Each of the undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed A
Borrowing:
(A) the representations and warranties contained in Article IV of
the Credit Agreement are correct, before and after giving effect to the
Proposed A Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, except to the extent that any such
representation or warranty expressly relates only to an earlier date, in which
case they were correct as of such earlier date;
(B) no event has occurred and is continuing, or would result from
such Proposed A Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default or a Potential Event of Default; and
(C) either (i) the amount of the Proposed A Borrowing does not
exceed the aggregate amount of the unused Commitments of the Lenders (after
giving effect to any B Reductions but without giving effect to any CP
Reductions) and the proceeds of the Proposed A Borrowing will be used to repay
Commercial Paper, or (ii) the amount of the Proposed A Borrowing does not
exceed the aggregate amount of the unused Commitments of the Lenders after
giving effect to any CP Reductions and (unless the
proceeds of the Proposed A Borrowing will be used to repay the principal
amount of B Advances) any B Reductions.
The Corporation hereby further certifies that after giving effect to the
Proposed A Borrowing, the aggregate amount of the Guarantied Obligations (as
defined in the Credit Agreement), together with all other Debt (including any
Advances under the Credit Agreement) incurred by the Corporation pursuant to
the resolutions of the Board of Directors of the Corporation authorizing the
Credit Agreement, does not exceed the aggregate amount of Debt authorized by
such resolutions.
Very truly yours,
CSC ENTERPRISES, a Delaware general partnership
By CSC Enterprises, Inc.,
Its Managing Partner
By:______________________
Title:
COMPUTER SCIENCES CORPORATION
By:___________________________
Title:
EXHIBIT A-2
NOTICE OF B BORROWING
[Date]
Citicorp USA, Inc., as Agent
for the Lenders party
to the Credit Agreement
referred to below
c/o Citicorp Securities, Inc.
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx/Xxx Xxxxx
Gentlemen:
Each of the undersigned, CSC Enterprises (the "Partnership") and Computer
Sciences Corporation (the "Corporation"), refers to the Credit Agreement dated
as of September 6, 1995 (as amended from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined), among the
Partnership, the Corporation, certain Lenders party thereto and Citicorp USA,
Inc., as Agent for said Lenders. The [Partnership] [Corporation] hereby gives
you notice pursuant to Section 2.03 of the Credit Agreement that the
[Partnership] [Corporation] hereby requests a B Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such B
Borrowing (the "Proposed B Borrowing") is requested to be made:
(A) Date of B Borrowing ____________________
(B) Amount of B Borrowing ____________________
(C) Maturity Date ____________________
(D) Interest Rate Basis ____________________
(E) Interest Payment Date(s) ____________________
(F) __________________ ____________________
(G) __________________ ____________________
(H) __________________ ____________________
Each of the undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed B
Borrowing:
(a) the representations and warranties contained in Article IV of
the Credit Agreement are correct, before and after giving effect to the
Proposed B Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, except to the extent that any such
representation or warranty expressly relates only to an earlier date, in which
case they were correct as of such earlier date;
(b) no event has occurred and is continuing, or would result from
the Proposed B Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default or a Potential Event of Default;
(c) the aggregate amount of the Proposed B Borrowing and all other
Borrowings to be made on the same day under the Credit Agreement is within the
aggregate amount of the unused Commitments of the Lenders; and
(d) the aggregate amount of all B Advances (including the Proposed
B Borrowing) scheduled to be outstanding at any time through the maturity of
such B Advances does not exceed the aggregate amount of the Commitments of the
Lenders scheduled to be in effect at such time (giving effect to any CP
Reductions but without giving effect to any B Reductions).
The [Partnership] [Corporation] hereby confirms that the Proposed B
Borrowing is to be made available to it in accordance with Section 2.03(a)(v)
of the Credit Agreement.
The Corporation hereby further certifies that after giving effect to the
Proposed B Borrowing, the aggregate amount of the Guarantied Obligations (as
defined in the Credit Agreement), together with all other Debt (including any
Advances under the Credit Agreement) incurred by the Corporation pursuant to
the resolutions of the Board of Directors of the Corporation authorizing the
Credit Agreement, does not exceed the aggregate amount of Debt authorized by
such resolutions.
Very truly yours,
CSC ENTERPRISES, a Delaware general partnership
CSC ENTERPRISES, INC.,
Its Managing Partner
By_______________________
Title:
COMPUTER SCIENCES CORPORATION
By:___________________________
Title:
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Dated ________, 19__
Reference is made to the Credit Agreement dated as of September 6, 1995
(as amended from time to time, the "Credit Agreement") among Computer Sciences
Corporation, a Nevada corporation (the "Corporation"), CSC Enterprises, a
Delaware general partnership (the "Partnership"), the Lenders (as defined in
the Credit Agreement) and Citicorp, USA, Inc., as Agent for the Lenders (the
"Agent"). Terms defined in the Credit Agreement and not defined herein are
used herein with the same meaning.
_________________ (the "Assignor") and ___________ (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns without recourse to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
that interest in and to all of the Assignor's rights and obligations under the
Credit Agreement as of the Effective Date (other than in respect of B
Advances) which represents the percentage interest specified on Schedule 1 of
all outstanding rights and obligations under the Credit Agreement (other than
in respect of B Advances), including, without limitation, such interest in the
Assignor's Commitment and the A Advances owing to the Assignor. After giving
effect to such sale and assignment, the Assignee's Commitment, the amount of
the A Advances owing to the Assignee, and the Commitment Termination Date of
the Assignee will be as set forth in Section 2 of Schedule 1. In
consideration of Assignor's assignment, Assignee hereby agrees to pay to
Assignor, on the Effective Date, the amount of $______ in immediately
available funds by wire transfer to Assignor's office at _______________.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Partnership or the Corporation or the performance
or observance by the Partnership or the Corporation of any of its obligations
under the Credit Agreement or any other instrument or document furnished
pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 and Section 4.02 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it
will, independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Credit Agreement
as are delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
specifies as its Domestic Lending Office (and address for notices) and
Eurodollar Lending Office the offices set forth beneath its name on the
signature pages hereof [and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made
to the Assignee under the Credit Agreement or such other documents as are
necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty]./1/ 4. Following the
execution of this Assignment and Acceptance by the Assignor and the Assignee,
it will be delivered to the Agent for acceptance and recording by the Agent.
The effective date of this Assignment and Acceptance shall be the date of
acceptance thereof by the Agent, unless otherwise specified on Schedule 1
hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect thereto)
to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
[FN]
--------------------
/1/ If the Assignee is organized under the laws of a jurisdiction outside
the United States.
Schedule 1
to
Assignment and Acceptance
Dated _____, 19__
Section 1.
Percentage Interest: ______%
Section 2.
Assignee's Commitment: $_______
Aggregate Outstanding Principal Amount of A Advances owing to the
Assignee: $_______
A Advances payable to the Assignee: Principal amount: _______
A Advances payable to the Assignor: Principal amount: _______
Assignee's Commitment Termination Date: _________, 199_
Section 3.
Effective Date/2/: ________, 199_ [NAME OF
ASSIGNOR] By:____________________________
Title: [NAME OF ASSIGNEE]
By:____________________________ Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
[FN]
--------------------
/2/ This date should be no earlier than the date of acceptance by the
Agent.
Accepted this ____ day
of _____________, 199_
CITICORP USA, INC., as Agent
By:______________________
Title:
COMPUTER SCIENCES CORPORATION,
a Nevada corporation
By:______________________
Title:
CSC ENTERPRISES, a Delaware
general partnership
By CSC ENTERPRISES, INC.,
Its Managing Partner
By:____________________________
Title:
EXHIBIT C-1
(LETTERHEAD OF XXXXXX, XXXX & XXXXXXXX)
September 6, 1995
(000) 000-0000
Citicorp USA, Inc., as Agent
under the Credit Agreement
(as hereinafter defined), and each
of the financial institutions party
to the Credit Agreement
(collectively, the "Banks")
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Re: Credit Agreement dated as of Sept. 6, 1995 among CSC Enterprises,
Computer Sciences Corporation, the Banks and Citicorp USA, Inc., as Agent
for the Banks
Ladies and Gentlemen:
We have acted as special counsel to CSC Enterprises, a Delaware general
partnership (the "Partnership"), and Computer Sciences Corporation, a Nevada
corporation (the "Company" and, together with the Partnership, the
"Borrowers"), in connection with the Credit Agreement dated as of Sept. 6,
1995 (the "Credit Agreement") among the Partnership, the Company, the Banks
and Citicorp USA, Inc., as Agent for the Banks (in such capacity, the
"Agent"). Terms defined in the Credit Agreement and not otherwise defined
herein are used herein as therein defined.
This opinion is rendered to you pursuant to Section 3.01(h) of the Credit
Agreement.
In rendering this opinion, we have reviewed the Credit Agreement and such
other documents, certificates or statements of public officials and officers
of the Company
and the Managing Partner and of such other persons, and have considered such
matters of law, as we deem necessary for purposes of this opinion.
We have, with your permission, assumed, without investigation or inquiry with
respect to any such matter, that:
(a) (i) The Company is a validly existing corporation in good standing
under the laws of the State of Nevada and has all requisite corporate power
and authority to execute, deliver and perform its obligations under the Credit
Agreement (including, without limitation, Article VIII therein). The Credit
Agreement has been duly authorized by all necessary corporate action on the
part of the Company and has been duly executed and delivered by the Company.
(ii) The Partnership is a general partnership validly existing under the law
of the State of Delaware and has all requisite partnership power and authority
to execute and deliver and performance obligations under the Credit Agreement.
The Managing Partner is a corporation validly existing and in good standing
under the laws of the State of Nevada and has all requisite corporate power
and authority to execute and deliver the Credit Agreement on behalf of the
Partnership. The execution and delivery of the Credit Agreement by the
Managing Partner, acting in its capacity as the managing general partner on
behalf of the Partnership, has been duly authorized by all necessary corporate
action on behalf of the Managing Partner, and the Credit Agreement has been
duly executed and delivered by the Managing Partner, on behalf of the
Partnership. We understand that there has been delivered to you an opinion of
Xxxxxxx X. Xxxx, Esq., Vice President and General Counsel of the Company, with
respect to such matters.
(b) Neither the execution and delivery of the Credit Agreement by the
Partnership, nor the consummation of the transactions contemplated thereby,
conflicts or constitutes a violation of the Partnership Agreement, as in
effect on the date hereof.
(c) To the extent that the obligations of the Borrowers may be dependent
upon such matters, each of the Banks and the Agent has all requisite power and
authority to execute, deliver and perform its obligations under the Credit
Agreement; the execution and delivery of the Credit Agreement and performance
of such obligations have been duly authorized by all necessary action on the
part of such Bank and the Agent; the Credit Agreement has been duly executed
and delivered by such Bank or the Agent; and the Credit Agreement is the
legal, valid and binding obligation of such Bank or the Agent, enforceable
against it in accordance with its terms.
(d) The signatures on all documents examined by us are genuine, and,
except as to the Borrowers (with respect to which the following assumption in
this clause (d) does not apply), all individuals executing such documents were
thereunto duly authorized.
(e) The Documents submitted to us as originals are authentic and the
documents submitted to us as certified or reproduction copies conform to the
originals.
With respect to any opinion herein in regard to the existence or absence of
facts that is stated to be to our actual knowledge, such statement means that,
during the course of our representation of the Borrowers, no information has
come to the attention of the lawyers in our Firm participating in such
representation that has given them actual knowledge of facts contrary to the
existence or absence of the facts indicated. No inference as to our knowledge
of the existence or absence of such facts should be drawn from our
representation of the Borrowers.
Based upon the foregoing, and subject to the qualifications, exceptions,
limitations and assumptions hereinafter set forth, we are of the opinion that:
1. The Credit Agreement constitutes the legal, valid and binding
obligation of each Borrower, enforceable against such Borrower in accordance
with its terms.
2. Neither the execution and delivery by either Borrower of the Credit
Agreement, nor the consummation of the transactions contemplated thereby, nor
compliance on or prior to the date hereof with the terms and conditions
thereof by each Borrower, will result in a violation of any applicable federal
or New York law, governmental rule or regulation or of the Nevada General
Corporation Law or the Delaware Uniform Partnership Law.
3. Neither the making of the Advances on the Effective Date pursuant to,
nor application of the proceeds thereof in accordance with, the Credit
Agreement, will violate Regulations G, T, U or X promulgated by the Board of
Governors of the Federal Reserve System.
4. No consent, approval or authorization of, and no registration,
declaration or filing with, any administrative, governmental or other public
authority of the United States of America or the State of New York or under
the Nevada General Corporation Law or the Delaware Uniform Partnership Law is
required by law to be obtained or made by either Borrower for the execution,
delivery and performance by such Borrower of the Credit Agreement, except such
filings as may be required in the ordinary course to keep in full force and
effect rights and franchises material to the business of the Borrowers and in
connection with the payment of taxes.
Each of the opinions set forth above are subject to the following
qualifications, exceptions, limitations and assumptions:
(a) Our opinions are subject to (i) the effect of bankruptcy,
insolvency, reorganization, moratorium, arrangement and other similar laws
affecting enforcement of creditors' rights generally, including, without
limitation, the effect of statutory or other laws regarding fraudulent
conveyances or transfers, preferential transfers and laws affecting
distributions by corporations to stockholders and (ii) general principles of
equity, regardless of whether enforceability is considered in a proceeding in
equity or at law, including, without limitation, concepts of materiality,
reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or other
equitable remedy (whether sought in a proceeding at law or in equity).
(b) We have assumed that no agreement exists that would expand, modify
or otherwise affect the respective rights or obligation of the parties to the
Credit Agreement. We have no actual knowledge of any such agreement.
(c) We express no opinion with respect to the legality, validity,
binding effect or enforceability of (i) any provision of the Credit Agreement
to the effect that rights or remedies are not exclusive or may be exercised
without notice, that every right or remedy is cumulative and may be exercised
in addition to any other right or remedy, that the election of some particular
remedy does not preclude recourse to one or more others or that failure to
exercise or delay in exercising rights or remedies will not operate as a
waiver of any such right or remedy; (ii) any waiver or any consent (whether
or not characterized as a waiver or consent in the Credit Agreement) relating
to the rights of either Borrower, or to duties owing to it, existing as a
matter of law, to the extent such waivers or consents are found by a court to
be against public policy or are ineffective pursuant to New York statutes or
judicial decisions; (iii) provisions construed as imposing penalties or
forfeitures; (iv) broadly or vaguely stated waivers of rights or duties, or
waivers which do not describe the right or duty purportedly waived with
reasonable specificity or which involve unknown future rights; (v) any
provisions waiving the applicable statute of limitations; (vi) any rights of
setoff, other than as provided by Section 151 of the Debtor and Creditor Law
of the State of New York, as interpreted by applicable judicial decisions; or
(vii) any provision relating to indemnification or contribution to the extent
such indemnification or contribution relates to any claims made under the
Federal securities laws or state securities or Blue Sky laws or is otherwise
limited by public policy.
(d) We express no opinion as to the effect on enforceability of Article
VIII of the Credit Agreement against the Company of any facts or circumstances
that exist or occur after the date hereof that would exonerate, or would
constitute a defense to the obligation of, a surety, unless the effect of such
facts or circumstances is effectively waived.
(e) We express no opinion as to the application of, or the effect of the
Agent's or any Bank's compliance or non-compliance with, any state or federal
laws that are applicable to the transactions contemplated by the Credit
Agreement only because of the nature of the Agent's or any Bank's business.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the United States of America and the State of New
York; however, we are generally familiar with the General Corporation Law of
the State of Nevada and the Uniform Partnership Law as in effect in the State
of Delaware and have made such inquiries as we consider necessary to render
our opinions expressed in Paragraphs 2 and 4 hereof. This opinion is limited
to the effect of the present state of the laws of the United States of America
and the State of New York and, to the extent set forth in the preceding
sentence, the States of Delaware and Nevada. In rendering this opinion, we
assume no obligation to revise or supplement this opinion should the present
laws, or the interpretation thereof, be changed.
This opinion is rendered to the Agent and the Banks as of the date hereof in
connection with the Credit Agreement, and may not be relied upon by any person
other than the Agent and the Banks and their permitted assignees, or by them
in any other context, and may not be furnished to any other person or entity
without our prior written consent, provided that each Bank and its permitted
assignees may provide this opinion (i) to bank examiners and other regulatory
authorities should they so request or in connection with their normal
examination, (ii) to the independent auditors and attorneys of such Bank,
(iii) pursuant to order or legal process of any court or governmental agency,
(iv) in connection with any legal action to which the Bank is a party arising
out of the transactions contemplated by the Credit Agreement, or (v) in
connection with the assignment of or sale of participations in the Advances.
Very truly yours,
XXXXXX, XXXX & XXXXXXXX
EXHIBIT C-2
(FORM OF OPINION OF GENERAL COUNSEL OF
COMPUTER SCIENCES CORPORATION)
September 6, 1995
Citicorp USA, Inc., as Agent under the
Credit Agreement (as hereinafter
defined), and each of the financial
institutions party to the Credit
Agreement and listed on Schedule I
attached hereto (collectively, the
"Banks")
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Re: Credit Agreement dated as of September 6, 1995, among Computer Sciences
Corporation, CSC Enterprises, the Banks and Citicorp USA, Inc., as Agent
for the Banks
Ladies and Gentlemen:
I am the General Counsel of Computer Sciences Corporation, a Nevada
corporation (the "Corporation"), and counsel to CSC Enterprises, a Delaware
general partnership (the "Partnership"). This opinion is being rendered to
you in connection with the Credit Agreement dated as of September 6, 1995 (the
"Credit Agreement") among the Corporation, the Partnership, the Banks and
Citicorp USA, Inc., as Agent for the Banks (in such capacity, the "Agent").
Terms defined in the Credit Agreement and not otherwise defined herein are
used herein as therein defined.
In rendering this opinion, I have examined originals or copies, certified or
otherwise identified to my satisfaction as being true copies, of the following
documents and instruments:
(a) the Credit Agreement;
(b) resolutions of the Board of Directors of the Corporation in respect
of the Credit Agreement and the transactions contemplated thereby, and a copy
of the certificate of incorporation and by-laws of the Corporation in effect
on the date hereof;
(c) resolutions of the Board of Directors of the Managing Partner in
respect of the Credit Agreement and the transactions contemplated thereby, and
a copy of the certificate of incorporation and by-laws of the Managing Partner
in effect on the date hereof; and
(d) certificates of recent date of the Secretary of State of the State
of Nevada as to the legal existence of each of the Corporation and the
Managing Partner in good standing under the laws of the State of Nevada.
I have also reviewed such other documents, certificates or statements of
public officials and such other persons, and have made such other
investigation of fact and law, as I deem necessary for purposes of this
opinion.
With respect to questions of fact material to the opinions expressed below, I
have, with your consent, relied upon certificates of public officials and
officers of the Corporation and the Managing Partner, in each case without
having independently verified the accuracy or completeness thereof.
Based upon the foregoing, I am of the opinion that:
1. The Corporation is a validly existing corporation in good standing
under the laws of the State of Nevada, and is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions which
require such qualification, except to the extent that failure to so qualify
would not have a material adverse effect on the Corporation. The Corporation
has all requisite corporate power and authority to own and operate its
properties, to conduct its business as presently conducted, and to execute,
deliver and perform its obligations under the Credit Agreement.
2. The Partnership is a general partnership validly existing under the
laws of the State of Delaware and has all requisite partnership power and
authority to own and operate its properties, to conduct its business as
presently conducted, and to execute, deliver and perform its obligations under
the Credit Agreement.
3. The Managing Partner is a corporation validly existing and in good
standing under the laws of the State of Nevada and has all requisite corporate
power and authority to own and operate its properties, to conduct its business
as presently conducted and to execute and deliver the Credit Agreement on
behalf of the Partnership.
4. The Credit Agreement has been duly authorized by all necessary
corporate action on the part of the Corporation, and has been duly executed
and delivered by the Corporation. The Credit Agreement has been duly
authorized by all necessary partnership action on the part of the Partnership.
The execution and delivery of the Credit Agreement by the Managing Partner,
acting in its capacity as the managing general partner of the Partnership, has
been duly authorized by all necessary corporate action on behalf of the
Managing Partner, and the Credit Agreement has been duly executed and
delivered by the Managing Partner on behalf of the Partnership.
5. Neither the execution and delivery of the Credit Agreement by the
Corporation, nor the consummation of the transactions contemplated thereby,
conflicts with or results in a breach of the certificate of incorporation or
bylaws of the Corporation, each as in effect on the date hereof. Neither the
execution and delivery by the Corporation of the Credit Agreement, performance
of its obligations thereunder, nor the consummation of the transactions
contemplated thereby, constitutes a violation of any applicable federal law,
rule or regulation or of the General Corporation Law of the State of Nevada.
6. Neither the execution and delivery of the Credit Agreement by the
Partnership, nor the consummation of the transactions contemplated thereby,
conflicts with or is a violation of the Partnership Agreement, as in effect on
the date hereof. Neither the execution and delivery by the Partnership of the
Credit Agreement, performance of its obligations thereunder, nor the
consummation of the transactions contemplated thereby, constitutes a violation
of any applicable federal law, rule or regulation or of the Uniform
Partnership Law of the State of Delaware.
7. No consent, approval or authorization of, and no registration,
declaration or filing with, any administrative, governmental or other public
authority of the United States of America, or under the General Corporation
Laws of the State of Nevada or the Uniform Partnership Law of the State of
Delaware, is required to be obtained or made by either Borrower for the
execution, delivery and performance by such Borrower of the Credit Agreement,
except such filings as may be required in the ordinary course to keep in full
force and effect rights and franchises material to the business of the
Borrowers and in connection with the payment of taxes.
8. Neither of the Borrowers is an "investment company" or a Person
directly or indirectly "controlled" by or "acting on behalf of" an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
I am admitted to the practice of law before the United States Supreme Court
and several lower federal courts, as well as the state courts of Kansas,
Pennsylvania and the District of Columbia. My opinion with respect to foreign
qualification contained in Paragraph 1 hereof is based solely upon a review of
unofficial compilations of the provisions of the statutory laws of the
relevant jurisdictions. I expressly disclaim any obligation or undertaking to
update or modify this opinion as a consequence of any future changes in the
applicable laws or in the facts bearing upon this opinion.
I call to your attention that I am not admitted to the practice of law in the
States of Nevada or Delaware; however, I am generally familiar with the
General Corporation Law of the State of Nevada and the Uniform Partnership Law
of the State of Delaware, and have made such inquiries as I consider necessary
to render the opinions expressed herein.
This opinion is limited to the effect of the present state of the General
Corporation Law of the State of Nevada, the Uniform Partnership Law of the
State of Delaware and the laws of the relevant jurisdictions, to the extent
set forth in the preceding two paragraphs. In rendering this opinion, I
assume no obligation to revise or supplement this opinion should the present
laws, or the interpretation thereof, be changed.
This opinion is rendered to the Agent and the Banks as of the date hereof in
connection with the Credit Agreement, and may not be relied upon by any person
other than the Agent and the Banks and their permitted assignees, or by them
in any other context, and may not be furnished to any other person or entity
without my prior written consent, provided that each Bank and its permitted
assignees may provide this opinion (i) to bank examiners and other regulatory
authorities should they so request or in connection with their normal
examination, (ii) to the independent auditors and attorneys of such Bank,
(iii) pursuant to order or legal process of any court or governmental agency,
(iv) in connection with any legal action to which the Bank is a party
arising out of the transactions contemplated by the Credit Agreement or (v)
in connection with the assignment of or sale of participations in the
Advances.
Very truly yours,
Xxxxxxx X. Xxxx
SCHEDULE I
Citicorp USA, Inc.
Bank of America National Trust and Savings Association
Chemical Bank
Xxxxxx Guaranty Trust Company of New York
X. X. Xxxxxx Delaware
The Bank of New York
The First National Bank of Chicago
Mellon Bank, N.A.
NationsBank of Texas, N.A.
NBD Bank, N.A.
Bank Brussels Xxxxxxx
The Bank of Nova Scotia
ABN AMRO Bank, N.V.
CoreStates Bank, N.A.
First Interstate Bank of California
National Westminster Bank PLC
Societe Generale
EXHIBIT D
[FORM OF INCREASE REQUEST]
CSC ENTERPRISES,
A DELAWARE GENERAL PARTNERSHIP
COMPUTER SCIENCES CORPORATION
REQUEST FOR INCREASE OF COMMITMENTS
[Date]
Citicorp USA, Inc., as Agent
for the Lenders party
to the Credit Agreement
referred to below
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Gentlemen:
Pursuant to that certain Credit Agreement dated as of September 6, 1995
(as amended from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined) among Computer Sciences
Corporation (the "Corporation"), CSC Enterprises (the "Partnership"), certain
Lenders party thereto and Citicorp USA, Inc., as Agent for said Lenders, this
represents the Partnership's and the Corporation's joint request to increase
the Commitment(s) of the Lender(s) set forth below to the (respective)
amount(s) set forth below [/1] pursuant to Section 2.18 of the Credit
Agreement.
Lender Commitment Before Commitment After
Giving Effect to Giving Effect to
Requested Increase Requested Increase
Each of the undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the effectiveness
of the increase requested hereby ("Proposed Increase"):
(a) the representations and warranties contained in Article IV of
the Credit Agreement are correct, before and after giving effect to the
Proposed Increase;
(b) no event has occurred and is continuing, or would result from
the Proposed Increase, which constitutes an Event of Default or a Potential
Event of Default;
[FN]
--------------------
[/1] Complete for each Increasing Lender.
(c) the balance sheet of the Corporation and its Subsidiaries as at
___________, 199_[/2], and the related statements of income and retained
earnings of the Corporation and its Subsidiaries for the fiscal year then
ended, and the balance sheet of the Partnership and its Subsidiaries as at
_________, 199_[/3], and the related statements of income and retained
earnings of the Partnership for the fiscal year then ended, copies of each of
which have been furnished to each Lender, fairly present the financial
condition of the Corporation and its Subsidiaries or the Partnership and its
Subsidiaries, as the case may be, as at such applicable date and the results
of the operations of Corporation and its Subsidiaries or the Partnership and
its Subsidiaries, as the case may be, for the fiscal year ended on such
applicable date, all in accordance with GAAP consistently applied, and since
__________, 199_[2], and ___________, 199_[3], respectively, there has been no
material adverse change in the business, condition (financial or otherwise),
operations or properties of the Corporation and its Subsidiaries, taken as a
whole, or of the Partnership and its Subsidiaries, taken as a whole;
(d) after giving effect to such increase and all prior increases in
the Commitments since the Effective Date, (i) the aggregate amount of the
Commitments does not exceed $525,000,000 and (ii) no Lender's Commitment
exceeds 50% of the aggregate amount of the Commitments; and
(e) the higher of the Ratings is equal to or better than BBB or
Baa2.
The Corporation hereby further certifies that after giving effect to the
Proposed Increase, the aggregate amount of the Guarantied Obligations (as
defined in the Credit Agreement), together with all other Debt (including any
Advances under the Credit Agreement) incurred by Corporation pursuant to the
resolutions of the Board of Directors of the Corporation authorizing the
Credit Agreement, does not exceed the aggregate amount of Debt authorized by
such resolutions.
Please indicate your consent to such increase in the Commitments of the
Increasing Lenders by signing the attached copy of this request in the space
provided below and returning the same to the undersigned.
Very truly yours,
CSC ENTERPRISES, a Delaware general
partnership
By CSC ENTERPRISES, INC.,
Its Managing Partner
By _____________________
Title:
COMPUTER SCIENCES CORPORATION
By:__________________________
Title:
[FN]
--------------------
[/2] Insert date of the most recent audited balance sheet of the
Corporaton and its Subsidiaries.
[/3] Insert date of the most recent audited balance sheet of the
Partnership and its Subsidiaries.
Each of the undersigned Increasing
Lenders hereby consents to the increase
of its Commitment as requested above and
confirms that, after giving effect to
such increase, its Commitment will be the
amount set forth opposite its name below.
This consent is subject to the terms
of Section 2.18 of the Credit Agreement.
DATED: ___________________
[INCREASING LENDER] Commitment: $________________
By: ______________________
Title:____________________
[INCREASING LENDER] Commitment: $________________
By: ______________________
Title:____________________
[INCREASING LENDER] Commitment: $________________
By: ______________________
Title:____________________
Accepted this ____ day
of _____________, 199_
CITICORP USA, INC., as Agent
By:______________________
Title:
EXHIBIT E
[FORM OF EXTENSION REQUEST]
CSC ENTERPRISES,
A DELAWARE GENERAL PARTNERSHIP
COMPUTER SCIENCES CORPORATION
REQUEST FOR EXTENSION OF COMMITMENT
TERMINATION DATE
[Date]
[Name and Address of Eligible Lender]
Pursuant to that certain Credit Agreement dated as of September 6, 1995
(as amended from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined) among Computer Sciences
Corporation (the "Corporation"), CSC Enterprises (the "Partnership"), certain
Lenders party thereto and Citicorp USA, Inc., as Agent for said Lenders, this
represents the Partnership's and the Corporation's joint request to extend the
Commitment Termination Date of each Eligible Lender to [/1] pursuant to
Section 2.16 of the Credit Agreement.
Each of the undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the effectiveness
of the extension requested hereby ("Proposed Extension"):
(a) the representations and warranties contained in Article IV of
the Credit Agreement are correct, before and after giving effect to the
Proposed Extension;
(b) no event has occurred and is continuing, or would result from
the Proposed Extension, which constitutes an Event of Default or a Potential
Event of Default; and
(c) the balance sheet of the Corporation and its Subsidiaries as at
___________, 199_[/2], and the related statements of income and retained
earnings of the Corporation and its Subsidiaries for the fiscal year then
ended, and the balance sheet of the Partnership and its Subsidiaries as at
_________, 199_[/3], and the related statements of income and retained
earnings of the Partnership for the fiscal year then ended, copies of each of
which have been furnished to each Lender, fairly present the financial
condition of the Corporation and its Subsidiaries or the Partnership and its
Subsidiaries, as the case may be, as at such applicable date and the results
of the operations of Corporation and its Subsidiaries or the Partnership and
its Subsidiaries, as the case may be, for the fiscal year ended on such
applicable date, all in accordance with GAAP consistently applied, and since
__________, 199_[2], and ___________, 199_[3], respectively, there has been no
material adverse change in the business, condition (financial or otherwise),
operations or properties of the Corporation and its Subsidiaries, taken as a
whole, or of the Partnership and its Subsidiaries, taken as a whole.
[FN]
--------------------
[/1] Insert date which is one year after the latest Commitment
Termination Date in effect.
[/2] Insert date of the most recent audited balance sheet of the
Corporation and its Subsidiaries.
[/3] Insert date of the most recent audited balance sheet of the
Partnership and its Subsidiaries.
The Corporation hereby further certifies that after giving effect to the
Proposed Extension, the aggregate amount of the Guarantied Obligations (as
defined in the Credit Agreement), together with all other Debt (including any
Advances under the Credit Agreement) incurred by Corporation pursuant to the
resolutions of the Board of Directors of the Corporation authorizing the
Credit Agreement, does not exceed the aggregate amount of Debt authorized by
such resolutions.
Please indicate your consent to such extension of the Commitment
Termination Date by signing the attached copy of this request in the space
provided below and returning the same to the undersigned by [/4].
Very truly yours,
CSC ENTERPRISES, a Delaware general
partnership
By CSC ENTERPRISES, INC.,
Its Managing Partner
By:__________________________
Title:
COMPUTER SCIENCES CORPORATION
By:__________________________
Title:
The undersigned Eligible Lender
hereby consents to the extension
of its Commitment Termination
Date as requested above. This
consent is subject to the terms
of Section 2.16 of the Credit
Agreement.
DATED: ___________________
[ELIGIBLE LENDER]
By: ______________________
Title:____________________
[FN]
--------------------
[/4] Insert tenth day prior to the Current Anniversary Date (as defined
in Section 2.16 of Credit Agreement).
EXHIBIT F
SCHEDULE OF OWNED REAL ESTATE (PARTNERSHIP)
Approximate
Address Description Acreage Mkt. Value
(millions)
1. 000 Xxxxxxxxx Xxxx Xxxxxx Building 51.00 $ 9.6
Norwich, CT & Data Center
2. 0000 Xxxxxxx Xxxxx Xxxx Xxxxxx Building 9.5 18.9
San Diego, CA & Data Center
3. 00000 Xxxxxxxxx Xxxx Office Building 5.4 2.4
Sterling, VA & Data Center
4. 0000 X. Xxxxxxxx Xxxxxx Xxxxxx Building 3.9 1.9
Baltimore, MD & Data Center
5. 00 Xxxxxxxxx Xxxx Office Building 18.0 29.0
Meriden, CT & Data Center
Total $ 61.8
EXHIBIT G
SCHEDULE OF OWNED REAL ESTATE (CORPORATION)
Approximate
Address Description Acreage Mkt. Value
(millions)
1. 0000 Xxxxx Xxxx Xxxx. Office 1.34 $ 1.9
Eagle Rock, CA Building
2. 0000 X. Xxxxx Xxxxxx Office 5.90 17.3
El Segundo, CA Building &
Data Center
3. 0000 Xxxxxxxxxxx Xxxx Xxxxxx 16.52 6.6
Herndon, VA Building
4. 000 Xxxxxx Xxxxx Xxxxxx 0.00 0.0
Xxxxxxxxxx, XX Building
5. 000 X. Xxxxx 00 Xxxxxx 0.00 0.0
Xxxxxxxxxx, XX Building
6. 000 Xxxxxxxxxx Xxxx Office 8.30 1.6
Mt. Laurel, NJ Building
7. 000 Xxxxxxxxx Xxxx Office 51.00 9.6*
Norwich, CT Building &
Data Center
8. 0000 Xxxxxxx Xxxxx Xxxx Office 9.5 18.9*
San Diego, CA Building &
Data Center
9. 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx 5.34 18.1
Falls Church, VA Building
10. 0000 Xxxxxxxx Xxxx Xxxxx Vacant Lot 5.76 3.6
Falls Church, VA
11. 00000 Xxxxxxxxx Xxxx Xxxxxx 5.4 2.4*
Sterling, VA Building
12. 0000 X. Xxxxxxxx Xxxxxx Office 3.9 1.9*
Baltimore, MD Building
13. 00 Xxxxxxxxx Xxxx Data Center 18.0 29.0*
Meriden, CT
14. 000 Xxxxxxx Xxxxxxx Office 1.0 8.6
St. Leonards, Australia Building
Total $ 129.2
--------------------
*Owned by the Partnership and also listed on Exhibit F.
