================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
Form 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended September 30, 1997
or
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
Commission File Number: 0-22993
----------------
INDUS INTERNATIONAL, INC.
(Exact name of Registrant issuer as specified in its charter)
Delaware 94-3273443
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
60 Spear Street, San Francisco, California 94105
(Address of principal executive offices) (Zip code)
(415) 904-5000
(Registrant's telephone number, including area code)
----------------
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
As of October 31, 1997, Registrant had outstanding 29,627,222 shares of Common
Stock, $.001 par value.
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<PAGE>
<TABLE>
TABLE OF CONTENTS
Part I: Financial Information
<CAPTION>
Page
<S> <C>
Item 1. Financial Statements (unaudited)
Condensed Consolidated Statements of Operations - three and nine months ended
September 30, 1997 and 1996............................................................ 1
Condensed Consolidated Balance Sheets - September 30, 1997 and December 31, 1996........... 2
Condensed Consolidated Statement of Stockholders' Equity - year ended
December 31, 1996 and nine months ended September 30, 1997............................. 3
Condensed Consolidated Statements of Cash Flows - nine months ended
September 30, 1997 and 1996............................................................. 5
Notes to Condensed Consolidated Financial Statements........................................ 6
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations...... 10
Part II: Other Information
Item 1. Legal Proceedings........................................................................... 15
Item 2. Changes in Securities and Use of Proceeds................................................... 15
Item 3. Defaults Upon Senior Securities............................................................. 16
Item 4. Submission of Matters to a Vote of Security Holders......................................... 16
Item 5. Other Information........................................................................... 16
Item 6. Exhibits and Reports on Form 8-K............................................................ 16
Signatures.................................................................................. 17
</TABLE>
<PAGE>
PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
INDUS INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------------------------------------
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues:
Software licensing fees ................................................... 13,601 11,108 39,184 29,796
Services and maintenance .................................................. 29,612 26,208 91,323 70,280
-------- -------- -------- --------
Total revenues ....................................................... 43,213 37,316 130,507 100,076
Cost of revenues ............................................................... 19,157 16,730 57,286 44,749
-------- -------- -------- --------
Gross margin ................................................................... 24,056 20,586 73,221 55,327
Operating expenses:
Research and development .................................................. 6,993 5,676 20,375 17,216
Sales and marketing ....................................................... 7,405 6,792 24,093 18,073
General and administrative ................................................ 3,173 3,425 11,507 11,029
Merger expenses ........................................................... 9,977 -- 9,977 --
Restructuring charge ...................................................... 2,106 -- 2,106 --
-------- -------- -------- --------
Total operating expenses ............................................. 29,654 15,893 68,058 46,318
-------- -------- -------- --------
Income (loss) from operations .................................................. (5,598) 4,693 5,163 9,009
Other income, net .............................................................. (533) (412) (1,721) (1,382)
-------- -------- -------- --------
Income (loss) before income taxes .............................................. (6,131) 4,281 3,442 7,627
Provision for income taxes ..................................................... 2,105 1,970 6,209 4,788
Cumulative effect of deferred income taxes provided upon January 1, 1996
conversion to C-Corporation status .......................................... -- -- -- 6,700
-------- -------- -------- --------
Income (loss) before extraordinary item ........................................ (8,236) 2,311 (2,767) (3,861)
Extraordinary item ............................................................. (787) -- (787) --
-------- -------- -------- --------
Net income (loss) .............................................................. (9,023) 2,311 (3,554) (3,861)
======== ======== ======== ========
Pro forma statement of operations (A):
Income (loss) before income taxes ......................................... (6,131) 4,281 3,442 7,627
Provision for income taxes (federal, state and foreign) ................... 2,105 1,970 6,209 4,788
-------- -------- -------- --------
Income (loss) before extraordinary item ................................... (8,236) 2,311 (2,767) 2,839
Extraordinary item ........................................................ (787) -- (787) --
-------- -------- -------- --------
Pro forma net income (loss)................................................ (9,023) 2,311 (3,554) 2,839
======== ======== ======== ========
Net income (loss) per share .................................................... $ (0.31) $ 0.08 $ (0.13) $ 0.10
======== ======== ======== ========
Shares used in computing net income (loss) per share........................... 29,432 29,846 28,158 28,170
======== ======== ======== ========
<FN>
(A) Pro forma data as to the nine months ended September 30, 1996, historical data for other periods.
See accompanying notes.
</FN>
</TABLE>
<PAGE>
<TABLE>
INDUS INTERNATIONAL, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
<CAPTION>
September 30, December 31,
1997 1996
-------- --------
(Unaudited) (A)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents ................................................................. $ 4,535 $ 13,815
Marketable securities ..................................................................... 20,854 26,524
Billed accounts receivable, less allowance for doubtful accounts of $1,868
at September 30, 1997 and $1,083 at December 31, 1996 ................................. 42,477 35,861
Unbilled accounts receivable .............................................................. 25,399 19,397
Other current assets ...................................................................... 4,370 6,365
-------- --------
Total current assets .................................................................. 97,635 101,962
Marketable securities - noncurrent ............................................................. 4,811 2,129
Property and equipment, net .................................................................... 14,612 12,270
Investments and intangible assets............................................................... 12,414 --
Employee notes receivable ...................................................................... 380 537
Other assets ................................................................................... 726 957
-------- --------
$130,578 $117,855
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Borrowing under line of credit ............................................................ $ 26,650 $ 15,991
Current portion of obligations under capital leases ....................................... 557 960
Accounts payable .......................................................................... 11,123 7,006
Deferred income taxes ..................................................................... 400 3,837
Accrued merger expenses ................................................................... 7,482 --
Other accrued liabilities ................................................................. 6,793 9,732
Deferred revenue .......................................................................... 13,169 21,372
-------- --------
Total current liabilities ............................................................. 66,174 58,898
-------- --------
Obligations under capital leases and term loans ................................................ 663 2,126
Subordinated long-term notes ................................................................... -- 18,065
Redeemable preferred stock of TSW International, Inc. .......................................... -- 18,100
Stockholders' equity:
Preferred Stock ........................................................................... -- --
Common Stock .............................................................................. 29 22
Additional capital ........................................................................ 95,725 48,649
Other ..................................................................................... (781) (603)
Accumulated deficit ....................................................................... (31,232) (27,402)
-------- --------
Total stockholders' equity ............................................................ 63,741 20,666
-------- --------
$130,578 $117,855
======== ========
<FN>
(A) The balance sheet at December 31, 1996 has been derived from the audited balance sheet (including TSW), but does not include all
of the information and footnotes required by generally accepted accounting principles for complete presentation.
See accompanying notes.
</FN>
</TABLE>
2
<PAGE>
<TABLE>
INDUS INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
(In thousands)
(Unaudited)
<CAPTION>
Total
Common Additional Accumulated Stockholders'
Stock Capital Other Deficit Equity
----- ------- ----- ------- ------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1994 ............................ $ 131 $ 1,399 $ 13 $(13,389) $(11,846)
Issuance of common stock
as deferred compensation ......................... 480 -- (480) -- --
Exercise of stock options ......................... 1 266 267
Stock options (1) .................................. -- 18,900 -- -- 18,900
Repurchase and retirement of stock ................. -- (122) -- -- (122)
Issuance of warrants to common stock ............... -- 570 -- -- 570
Cash distributions to stockholders ................. -- -- -- (9,516) (9,516)
Translation adjustment ............................. -- -- (229) -- (229)
Amortization of deferred compensation .............. -- -- 48 -- 48
Net loss ........................................... -- -- -- (18,545) (18,545)
-------- -------- -------- -------- --------
Balance at December 31, 1995 ............................ 612 21,013 (648) (41,450) (20,473)
Conversion to C Corporation effective
January 1, 1996 ................................ -- (8,223) -- 8,223 --
Reincorporation .................................... (494) 494 -- -- --
Issuance of common stock(2) ........................ 4 35,399 -- -- 35,403
Tax benefit from exercise of stock options ......... -- 6,669 -- -- 6,669
Purchase of Indus International, Inc. ..............
net assets ...................................... (100) (3) -- -- (103)
Unrealized loss on marketable securities ........... -- -- (42) -- (42)
Translation adjustment ............................. -- -- (9) -- (9)
Amortization of deferred compensation .............. -- -- 96 -- 96
Net loss ........................................... -- (6,700) -- 5,825 (875)
-------- -------- -------- -------- --------
Balance at December 31, 1996 ............................ 22 48,649 (603) (27,402) 20,666
Issuance of common stock ........................... -- 5,600 -- -- 5,600
Tax benefit from exercise of stock options ......... -- 1,721 -- -- 1,721
Capital contribution by a TSW
Shareholder ..................................... -- 1,717 -- -- 1,717
Reincorporation .................................... (4) 4 --
Redemption of TSW subordinated notes(3) ............ 8 19,937 19,945
Exchange of common stock for TSW
redeemable preferred stock(4) .................. 3 18,097 -- -- 18,100
Unrealized loss on marketable securities ........... -- -- (28) -- (28)
Translation adjustment ............................. -- -- (206) -- (206)
Amortization of deferred compensation .............. -- -- 56 -- 56
Net loss ........................................... -- -- -- (3,554) (3,554)
Elimination of TSW's net income for the three
months ended March 31, 1997 (5)................. -- -- -- (276) (276)
-------- -------- -------- -------- --------
Balance at September 30, 1997 ........................... $ 29 $ 95,725 $ (781) $(31,232) $ 63,741
======== ======== ======== ======== ========
3
<PAGE>
<FN>
(1) Value of unexercised stock options of The Indus Group, Inc. upon elimination of contingency feature, which had precluded
exercise of these options.
(2) Includes $33,864 received from February 29, 1996 initial public offering of The Indus Group, Inc. (2,500,000 common shares
offered at $15 per share less underwriting commission and expenses.
(3) Redemption of TSW subordinated notes and accumulated interest in exchange for 1,235,879 common shares of Indus International,
Inc.
(4) Exchange of 8,049,025 common shares of Indus International, Inc. for redeemable preferred stock of TSW International, Inc. and
53,937 shares for accumulated dividends.
(5) Net income of TSW International, Inc. for the three months ended March 31, 1997 ($276) included in both 1996 and 1997 combined
operating results, as a result of change in TSW International, Inc.'s fiscal year end.
See accompanying notes.
</FN>
</TABLE>
4
<PAGE>
<TABLE>
INDUS INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<CAPTION>
Nine Months Ended
September 30,
1997 1996
----------- -----------
<S> <C> <C>
Cash flows from operating activities
Net loss.......................................................................................... $(3,554) $(3,861)
Elimination of TSW's net income for the three months ended March 31, 1997......................... (276) --
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization ............................................................... 3,775 2,911
Provision for doubtful accounts ............................................................. 784 139
Amortization of deferred compensation ....................................................... 56 96
Loss on sale of fixed assets ................................................................ 315 2
Write-off goodwill .......................................................................... -- 804
Deferred income taxes ....................................................................... (3,437) (2,597)
Cumulative effect of deferred income taxes provided January 1, 1996 ......................... -- 6,700
Tax benefit from exercise of stock options .................................................. 1,721 3,636
Merger expense resulting from equity transaction ............................................ 2,009 --
Extraordinary charge to net loss from debt extinguishment ................................... 787 --
Changes in operating assets and liabilities:
Billed accounts receivable ............................................................. (7,400) (3,395)
Unbilled accounts receivable ........................................................... (6,002) (3,361)
Other current assets ................................................................... 1,995 (2,899)
Employee notes receivable .............................................................. 157 (156)
Other assets ........................................................................... 231 126
Accounts payable ....................................................................... 4,117 52
Income taxes payable ................................................................... -- (218)
Accrued merger expense ................................................................. 7,482 --
Other accrued liabilities .............................................................. (2,939) 1,681
Deferred revenue ....................................................................... (8,203) 326
Other .................................................................................. (96) (497)
-------- --------
Net cash used by operating activities ............................................................ (8,478) (511)
-------- --------
Cash flows from investing activities
Purchase of marketable securities ................................................................ (3,284) (39,132)
Sale of marketable securities .................................................................... 6,200 9,300
Investments and intangible assets................................................................. (8,289) --
Acquisition of property and equipment ............................................................ (5,072) (5,307)
-------- --------
Net cash used in investing activities ............................................................ (10,445) (35,139)
-------- --------
Cash flows from financing activities
Net drawdown/(repayment) of line of credit ....................................................... 10,659 (3,154)
Net drawdown/(repayment) of capital leases/notes payable ......................................... (1,866) 2,557
Net proceeds from issuance of common stock ....................................................... 850 39,664
Purchase of Indus International, Inc. net assets ................................................. -- (103)
-------- --------
Net cash provided by financing activities ........................................................ 9,643 38,964
-------- --------
Net increase in cash and cash equivalents ........................................................ (9,280) 3,314
Cash and cash equivalents at beginning of period ................................................. 13,815 297
-------- --------
Cash and cash equivalents at end of period ....................................................... $ 4,535 $ 3,611
======== ========
Supplemental disclosures of cash flow information
Interest paid .................................................................................... $ 2,004 $ 2,322
======== ========
Income taxes paid ................................................................................ $ 4,775 $ 5,560
======== ========
Supplemental schedule of noncash, investing and financing activities
Issuance of common stock in exchange for TSW subordinated notes and redeemable preferred stock... $ 38,034 $ --
======== ========
Issuance of common stock in exchange for investment............................................... $ 4,750 $ --
======== ========
<FN>
See accompanying notes.
</FN>
</TABLE>
5
<PAGE>
INDUS INTERNATIONAL, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Significant Accounting Policies
Interim Financial Statements
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form 10-Q and
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three and nine-month periods ended
September 30, 1997 are not necessarily indicative of the results that may be
expected for the fiscal year ending December 31, 1997. For further information,
refer to the Company's Registration Statement on Form S-4 Registration No.
333-33113 filed August 27, 1997.
Merger of The Indus Group, Inc. and TSW International, Inc.
The Indus Group, Inc. entered into an agreement and plan of merger and
reorganization on June 5, 1997 with TSW International, Inc., a Georgia
corporation, pursuant to which The Indus Group, Inc. and TSW International, Inc.
each became subsidiaries of a new Delaware corporation named Indus
International, Inc. (the "Company") which was formed for the purpose of the
transactions contemplated under the Merger. The Merger was consummated on August
25, 1997, as a tax-free reorganization pursuant to the provisions of Section 368
of the Internal Revenue Code of 1986, and has been accounted for as a pooling of
interests. In connection with the Merger, each share of outstanding common stock
of The Indus Group, Inc. was converted into one share of Common Stock of the
Company ("Common Stock") and (a) each outstanding share of common stock of TSW
("TSW Common Stock"), and each outstanding share of preferred stock of TSW ("TSW
Preferred Stock"), was converted into approximately 2.73 shares of the Company's
Common Stock; (b) the outstanding subordinated floating rate notes of TSW
(including accrued interest thereon) were exchanged for an aggregate of
1,235,879 shares of the Company's Common Stock; (c) all rights to receive any
unpaid dividends on TSW Preferred Stock were converted into an aggregate of
53,937 shares of the Company's Common Stock and (d) each outstanding option or
warrant to purchase TSW Common Stock was converted into an option or warrant,
respectively, to purchase that number of shares of the Company's Common Stock
determined by multiplying the number of shares of TSW Common Stock subject to
such option or warrant by the approximately 2.73, at an exercise price per share
of the Company's Common Stock equal to the exercise price per share of TSW
Common Stock pursuant to such option or warrant divided by the approximately
2.73. Based on the capitalization of TSW International, Inc. as of August 25,
1997, approximately 10.2 million shares of the Company's common stock were
issued in the transaction and the Company has reserved approximately 7.9 million
shares of its common stock for issuance pursuant to the assumption of
outstanding options and warrants to purchase TSW common stock.
As a result of the transaction, the Company incurred charges to
operations of $9.98 million of merger related costs during the current period
that primarily related to approximately $6.7 million for transaction fees and
professional services, $1.7 million for consulting services incurred by a
significant stockholder and $1.6 million for other costs incident to the merger.
Of the total charge, cash outflow to date is $2.1 million and $7.5 million are
future outflows as of September 30, 1997. The future outflows will primarily be
paid during the next twelve months. In addition to the merger related costs, the
Company accrued costs and losses as a restructuring of the Company totaling $2.1
million during the current period. Of the total cost, $910,000 results from
excess facilities that will be vacated and $1.2 million from termination costs
of excess or redundant employees. Of the total charge, cash outflow to date is
$290,000.
6
<PAGE>
INDUS INTERNATIONAL, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
Reporting Periods
All periods include the combined results of The Indus Group, Inc. and
TSW International, Inc. on a pooling of interest basis, as a result of a merger
effective August 25, 1997. The 1996 data in the Company's condensed consolidated
statement of operations represent the three and nine-month periods ended
September 30, 1996 for The Indus Group, Inc. and the three and nine-month
periods ended December 31, 1996 for TSW International, Inc. The December 31,
1996 data in the Company's condensed consolidated balance sheet represents
December 31, 1996 for The Indus Group, Inc. and March 31, 1997 for TSW
International, Inc. The Company's condensed consolidated statement of
shareholders' equity for December 31, 1995 and 1996 reflect the years ended
December 31, 1995 and 1996 for The Indus Group, Inc. and March 31, 1996 and 1997
for TSW International, Inc. The condensed consolidated statement of
shareholder's equity for September 30, 1997 reflect the nine months ended
September 30, 1997 for The Indus Group, Inc. and six months ended September 30,
1997 for TSW International, Inc.. The condensed consolidated statements of cash
flows for 1996 reflect the nine months ended September 30, 1996 for The Indus
Group, Inc. and the nine months ended December 31, 1996 for TSW International,
Inc. The condensed consolidated statements of cash flows for September 30, 1997
reflect the nine months ended September 30, 1997 for The Indus Group, Inc. and
the six months ended September 30, 1997 for TSW International, Inc.
Cash Equivalents and Marketable Securities
The Company considers all highly liquid, low risk debt instruments with
a maturity of three months or less from the date of purchase to be cash
equivalents. The Company generally invests its cash and cash equivalents in
money market accounts and agency repurchase agreements, which are secured by
government agency securities.
The Company presently classifies all marketable securities as
available-for-sale investments and carries them at fair market value. Marketable
securities represent U.S. government obligations and indirect investments in
municipal obligations. Marketable securities classified as long-term represent
U.S. government obligations maturing no later than July 1999. Unrealized holding
gains and losses, net of taxes, are carried as a component of shareholders'
equity.
Revenue Recognition
Effective in the quarter ended September 30, 1997, The Indus Group,
Inc. began to report applicable new license fees on standard software products
not requiring substantial modification or customization as earned revenue upon
shipment to customers. Previously, because substantial modification and
customization of software products was expected by customers, The Indus Group,
Inc. had deferred the applicable license fees initially and recognized those
fees as earned over the period of modification, customization and other
installation services. TSW International, Inc. which had not been required to
perform substantial customization services, continues to recognize the
applicable portion of license fees as earned upon shipment of standard software
products to customers.
Extraordinary Item
The extraordinary item of $787,000 ($0.03 per share) represents the
loss upon early extinguishment of indebtedness of TSW International, Inc.
2. Issuance of Common Stock
Initial Public Offering
On February 29, 1996, The Indus Group, Inc. completed an initial public
offering (the "Offering") in which it sold 2,500,000 shares of Common Stock at
$15.00 per share. The Offering raised net proceeds of $33,863,764 (exclusive of
underwriting discount and $1,011,236 in related expenses).
7
<PAGE>
INDUS INTERNATIONAL, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
Employee Stock Purchase Plan
The Indus Group, Inc. received $500,663 and $130,850 from the issuance
of 29,088 and 10,013 shares of Common Stock on June 30, 1997 and August 21,
1997, respectively, under The Indus Group, Inc. 1995 Employee Stock Purchase
Plan.
Exercise of Stock Options
During the nine months ended September 30, 1997, The Indus Group, Inc.
received $146,871 from the issuance of 255,995 shares of common stock upon
exercise of options under its 1992 Stock Option Plan.
During the nine months ended September 30, 1997, TSW International,
Inc. received $71,386 from the issuance of 12,932 shares of common stock upon
exercise of options under its Stock Option Plans.
Acquisition of Prism Consulting
On April 1, 1997, the Company acquired Prism Consulting, Inc., a
private management consulting firm for 339,285 shares of common stock at $14.00
per share and $250,000 in cash. Substantially all of the purchase cost was
allocated to intangible assets and is included in investments and intangible
assets.
3. Investment
The Indus Group, Inc. acquired a 10% interest in TenFold Corporation, a
private software company, for approximately $8 million in cash. The Indus Group,
Inc. received a perpetual, unrestricted license for applications and tools
developed with TenFold's technology.
4. Pro Forma Data; Per Share Data
The pro forma data reflects adjustments which would have been
applicable had The Indus Group, Inc. been a C Corporation in all periods.
Statements of Operations
Effective upon its incorporation in 1990, The Indus Group, Inc. elected
to have its United States income taxed under Subchapter S of the Code. Income
tax provisions through December 31, 1995 were principally attributable to state
taxes and taxes imposed by foreign governments on The Indus Group, Inc.'s
foreign operations. The Indus Group, Inc.'s S Corporation status terminated
effective January 1, 1996, and The Indus Group, Inc. was subject to federal
income taxation at the corporate level thereafter. In connection with the
termination of S Corporation status on January 1, 1996, a one-time charge
representing a cumulative net federal and state deferred income tax liability of
$6.7 million was recorded. Indus International, Inc. is a C Corporation.
For purposes of presenting comparative earnings and calculating
earnings per share data, pro forma net income for the nine months ended
September 30, 1996 reflects the elimination of the $6.7 million cumulative
deferred income tax charge upon converting from an S Corporation to a C
Corporation.
Per Share Data
Net income (loss) per share is computed using pro forma net income
(loss) and the weighted average number of common and dilutive common equivalent
shares outstanding during each period. Dilutive common equivalent shares consist
of incremental common shares issuable upon the assumed exercise of stock options
(using the treasury stock method). Fully diluted per share amounts are not
presented, as the effect is not material. The computation of the weighted
average number of shares outstanding for the three and nine month periods ended
September 30, 1997 and 1996 is as follows (in thousands):
8
<PAGE>
<TABLE>
INDUS INTERNATIONAL, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
----------- -- ---------- ---------- -- -----------
1997 1996 1997 1996
----------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
Weighted average outstanding........................................... 29,432 26,411 28,158 25,191
Equivalent shares assumed to be outstanding had options granted
prior to 1995 been exercised and used to repurchase shares at their
then fair value...................................................... - 3,435 - 2,979
=========== ========== ========== ===========
29,432 29,846 28,158 28,170
=========== ========== ========== ===========
</TABLE>
5. Earnings Per Share
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, Earnings Per Share, which is required to be adopted on
December 31, 1997. At that time, the company will be required to change the
method currently used to compute earning per share and to restate all prior
periods. Under the new requirements for calculating primary earnings per share,
the dilutive effect of stock options will be excluded. The impact is expected to
result in an increase (decrease) in primary earnings per share for the three
months ended September 30, 1997 and September 30, 1996 of ($0.01) and $0.01 per
share, respectively. The impact of Statement 128 on the calculation of fully
diluted earnings per share for these quarters is not expected to be material.
9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
This Form 10-Q contains forward-looking statements within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. Actual results could differ materially from those projected in the
forward-looking statements located in the Research and Development, Sales and
Marketing and Liquidity and Capital Resources sections as a result of the
factors set forth below, among others.
The Company has experienced, and may in the future experience, significant
fluctuations in quarterly revenues and operating results. The Company's revenues
and operating results in general, and in particular its revenues from new
licenses, are relatively difficult to forecast for a number of reasons,
including (i) the relatively long sales cycles for the Company's products, (ii)
the variable size and timing of individual license transactions, (iii) changes
in demand for the Company's products and services, (iv) competitive conditions
in the industry, (v) changes in customer budgets, (vi) the timing of the
introduction of new products or product enhancements by the Company or its
competitors, (vii) the Company's success in and costs associated with developing
and introducing new products, (viii) product life cycles, (ix) changes in the
proportion of revenues attributable to license fees versus services, (x) changes
in the level of operating expenses, (xi) delay or deferral of customer
implementations of the Company's software, (xii) software defects and other
product quality problems, and (xiii) other economic conditions generally or in
specific process industry segments. Further, the purchase of the Company's
products generally involves a significant commitment of capital, with the
attendant delays frequently associated with large capital expenditures and
authorization procedures within large organizations. For these and other
reasons, the sales cycles for the Company's products are typically lengthy and
subject to a number of significant risks over which the Company has little or no
control, including customers' budget constraints and internal authorization
reviews. In addition, delays in the completion of a product implementation may
require that the revenues associated with such implementation be recognized over
a longer period than originally anticipated. Such delays in the implementation
or execution of orders has caused, and may in the future cause, material
fluctuations in the Company's operating results. Similarly, customers may cancel
implementation projects at any time without penalty, and such cancellation could
have a material adverse effect on the Company's business or results of
operations. Because the Company's expenses are relatively fixed, a small
variation in the timing of recognition of specific revenues can cause
significant variations in operating results from quarter to quarter and may in
some future quarter result in losses or have a material adverse effect on the
Company's business or results of operations. For a more complete discussion of
these factors, refer to the Risk Factors included in the Company's Registration
Statement on Form S-4 filed on August 27, 1997 by the Company in connection with
the merger of The Indus Group, Inc. and TSW International, Inc..
Risks relating to the merger of The Indus Group, Inc. and TSW International,
Inc. include: (i) risks relating to the integration of the operations of The
Indus Group, Inc. and TSW International, Inc.; (ii) the incurrence of the
Combined Company of certain non-recurring charges in connection with the Merger;
(iii) the additional shares of Indus International, Inc. Common Stock to be
issued in the Merger as well as the number of shares of Indus International,
Inc. Common Stock to be eligible for public resale; (iv) certain differences in
the rights of holders of The Indus Group, Inc.'s Common Stock and TSW
International, Inc. Capital Stock resulting from the Merger; (vi) certain
affiliates of The Indus Group, Inc. and TSW International, Inc. have certain
interests that are different from or in addition to shareholders of The Indus
Group, Inc. and shareholders of TSW International, Inc. Risks relating to the
business of the Combined Company include: (i) the Combined Company's ability to
manage growth; (ii) the utilization by the Combined Company of new distribution
channels; and (iii) risks relating to the successful integration of current and
future products and technologies.
The Company has in the past and may in the future acquire complementary products
or businesses. Risks associated with such transactions include difficulty in
retaining and assimilating the personnel of the combined companies, difficulty
in integrating the operations of the combined companies, disruption of the
Company's ongoing business, expenses associated with completing the transaction,
and dilution of existing equity holders. There can be no assurance that such
transactions will not materially adversely affect the Company's business,
financial condition or operating results.
10
<PAGE>
Recent Developments
On August 25, 1997, The Indus Group, Inc. and TSW International, Inc. were each
merged (the "Merger") with and into wholly-owned subsidiaries of a new Delaware
company, Indus International, Inc. (the "Company"). In connection with the
Merger, each share of outstanding common stock of The Indus Group, Inc. was
converted into one share of Common Stock of the Company ("Common Stock") and (a)
each outstanding share of common stock of TSW ("TSW Common Stock"), and each
outstanding share of preferred stock of TSW ("TSW Preferred Stock"), was
converted into approximately 2.73 shares of the Company's Common Stock; (b) the
outstanding subordinated floating rate notes of TSW (including accrued interest
thereon) were exchanged for an aggregate of 1,235,879 shares of the Company's
Common Stock; (c) all rights to receive any unpaid dividends on TSW Preferred
Stock were converted into an aggregate of 53,937 shares of the Company's Common
Stock and (d) each outstanding option or warrant, respectively, to purchase that
number of shares of the Company's Common Stock determined by multiplying the
number of shares of TSW Common Stock subject to such option or warrant by the
approximately 2.73, at an exercise price per share of the Company's Common Stock
equal to the exercise price per share of TSW Common Stock pursuant to such
option or warrant divided by the approximately 2.73. The Company issued
approximately 10.2 million shares of the Company's common stock and has reserved
approximately 7.9 million shares of its common stock for issuance pursuant to
the assumption of outstanding options and warrants to purchase TSW common stock.
Results of Operations
Overview. Indus International, Inc. develops, markets, and supports a
proprietary line of enterprise asset management software and implementation
services. The Company serves as an agent of change for its customers, who seek
to improve their return on investment (ROI) and efficiencies in core business
functions in the utilities and energy industry, process, discreet and consumer
packaged goods companies, as well as educational, municipal and transportation
authorities worldwide.
The Company derives its revenues primarily from software licenses,
implementation and training services and maintenance fees. While the Company has
derived a significant portion of its revenues from electric utilities, it also
derives revenues from customers such as the oil and gas companies, petrochemical
companies, manufacturers, hospitals, educational systems, governments,
transportation authorities and steel and forest product companies.
The Company provides its software to customers under contracts which provide for
software license fees and system implementation services. Effective in the three
months ended September 30, 1997, The Indus Group, Inc. began to report
applicable new license fees, which typically have ranged from approximately
$100,000 to $5 million, on standard software products not requiring substantial
modification or customization as earned revenue upon shipment to customers.
Previously, because substantial modification and customization of software
products was epxected by customers, The Indus Group, Inc. had deferred the
applicable license fees initially and recognized those fees as earned over the
period of modification, customization and other installation services. TSW
International, Inc. has always recognized license fees upon shipment of product.
Revenues from system implementation services, which typically are time- and
material-based, are recognized as direct contract costs are incurred and
typically range from one to three times the license fees.
Accordingly, revenues for each quarter depend in part on revenues from the
closing of new contracts during the quarter. For contracts with a one-year
warranty clause, a portion of license fees is deferred initially and
subsequently recognized over the one-year period during which continuing
maintenance and support services are provided to customers under the contracts.
After an initial contract period, additional maintenance and support services,
for which the Company typically charges 15-18% of the original license fee per
year, are subject to separate contracts whereby revenue is recognized ratably
over the contract period.
In March 1997, The Indus Group, Inc. acquired a 10% interest in TenFold
Corporation, a private software company for approximately $8 million in cash.
The Indus Group, Inc. will receive a perpetual, unrestricted license for future
applications and tools developed with TenFold's technology. In April 1997, The
Indus Group, Inc. acquired Prism Consulting, a private management-consulting
firm, for $4.75 million in the Company's stock at the then current market value
and $250,000 in cash. The Company has not and does not anticipate any material
consequences on its results of operations for the calendar year 1997 as a result
of these acquisitions.
11
<PAGE>
Results of Operations (continued)
<TABLE>
The following table sets forth for the periods indicated the percentage of total
revenues represented by certain line items in the Company's statements of
operations:
Percent of Total Revenues
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------------------------------------
1997 1996 1997 1996
--------------------------------------------------
<S> <C> <C> <C> <C>
Revenues:
Software licensing fees ................................................... 31.5% 29.8% 30.0% 29.8%
Services and maintenance .................................................. 68.5 70.2 70.0 70.2
----- ----- ----- -----
Total revenues ....................................................... 100.0 100.0 100.0 100.0
Cost of revenues ................................................................ 44.3 44.8 43.9 44.7
----- ----- ----- -----
Gross margin .................................................................... 55.7 55.2 56.1 55.3
Operating expenses:
Research and development .................................................. 16.2 15.2 15.6 17.2
Sales and marketing ....................................................... 17.1 18.2 18.5 18.1
General and administrative ................................................. 7.3 9.2 8.8 11.0
Restructuring/merger expense ............................................... 28.0 -- 9.3 --
----- ----- ----- -----
Total operating expenses .............................................. 68.6 42.6 52.1 46.3
----- ----- ----- -----
Income (loss) from operations ................................................... (13.0) 12.6 4.0 9.0
Other income (expense), net ..................................................... (1.2) (1.1) (1.3) (1.4)
----- ----- ----- -----
Income (loss) before income taxes ............................................... (14.2) 11.5 2.7 7.6
Provision for income taxes (state and foreign only in 1995) ..................... 4.9 5.3 4.8 4.8
Cumulative effect of deferred income taxes provided upon January 1, 1996
conversion to C-Corporation status ........................................... -- -- -- (6.7)
----- ----- ----- -----
Income (loss) before extraordinary .............................................. (19.1)% 6.2% (2.7%) (3.9%)
Extraordinary item .............................................................. 1.8 -- -- --
----- ----- ----- -----
Net income (loss) ............................................................... (20.9%) 6.2% (2.7%) (3.9%)
Pro forma statement of operations:
Income (loss) before income taxes, as above ................................ 7.6%
Provision for income taxes (federal, state and foreign) .................... 4.8
-----
Pro forma net income per share ............................................. 2.8%
=====
</TABLE>
Revenues. Total revenues increased 16% to $43.2 million in the three months
ended September 30, 1997 from $37.3 million in 1997. In the first nine months of
1997, total revenues increased by 30% to $130.5 million from $100 million in
1996. Revenue from international customers (excluding Canada and Mexico)
accounted for 11% and 13% of revenues for the three months and nine months ended
September 30, 1997, respectively, and 13% and 17% for the three months and nine
months ended September 30, 1996, respectively. As most of the Company's
contracts are denominated in U.S. dollars, foreign currency fluctuations have
not impacted the results of operations.
In addition, effective in the three months ended September 30, 1997, The Indus
Group, Inc. began to report applicable new license fees on standard software
products not requiring substantial modification or customization as earned
revenue upon shipment to customers. Previously, because substantial modification
and customization of software products was expected by customers, The Indus
Group, Inc. had deferred the applicable license fees initially and recognized
those fees as earned over the period of modification, customization and other
installation services. TSW International, Inc. which had not been required to
perform substantial customization services, continues to recognize the
applicable portion of license fees as earned upon shipment of standard software
products to customers.
12
<PAGE>
Results of Operations (continued)
Revenues from licensing fees increased by 22% to $13.6 million in the three
months ended September 30, 1997 from $11.1 million in 1996. In the first nine
months of 1997, licensing fees increased 32% to $39.2 million from $29.8 million
in 1996. The license fee growth from 1996 to 1997 resulted primarily from
closing of a number of license fee agreements with both new and existing
customers. License fees as a percentage of revenue were 32% and 30% for the
three months ended September 30, 1997 and 1996, and 30% for the nine months
ended September 30, 1997 and 1996.
Revenues from services and maintenance increased by 13% to $29.6 million in the
three months ended September 30, 1997 from $26.2 million in 1996. In the first
nine months of 1997, services and maintenance revenue increased 30% to $91.3
million from $70.3 million in 1996. The service and maintenance growth for the
first nine months from 1996 to 1997 resulted primarily from implementation
services generated by new domestic contracts and additional implementation
projects with existing customers. The service and maintenance growth from the
three months of 1996 to the three months of 1997 was lower than the year to date
growth due to the delay of license fee contract closures during the first two
quarters of 1997 which resulted in a lack of implementation service contracts in
place.
The Company does not believe that the revenue growth experienced in the first
nine months of 1997 is necessarily indicative of any revenue growth that may
occur in future periods.
Cost of Revenues. Cost of revenues consists primarily of: (i) personnel and
related costs for implementation (including account executive personnel), (ii)
training and customer support services and (iii) sublicense fees to third
parties upon the sale of the Company's product containing such third-party
software. Gross margin on license fees are substantially higher than gross
margin on service revenue, reflecting the low packaging and production costs of
software products compared with the relatively high personnel costs associated
with providing implementation, maintenance, consulting and training services.
All software development costs are expensed to research and development as
incurred.
Cost of revenues increased 15% to $19.2 million in the three months ended
September 30, 1997 from $16.7 million in 1996. In the first nine months of 1997,
cost of revenues increased by 28% to $57.3 million from $44.7 million in 1996.
The 1997 increase in absolute dollars in cost of revenues was due principally to
the need for additional personnel to service the Company's customers. As a
percent of total revenue, cost of revenues was 44% and 45% for the three months
ended September 30, 1997 and 1996, respectively. For the first nine months of
1997 and 1996, the cost of revenues as a percent of total revenue was at 44% and
45%, respectively. Cost of revenues remained relatively flat as a percentage of
total revenue.
Research and Development (R&D). Research and development expenses consist
primarily of: (i) personnel and related costs, (ii) computer timeshare costs and
(iii) third party consultant fees directly attributable to the development of
new software application products and enhancements to existing products.
Research and development expenses increased 23% to $7.0 million in the three
months ended September 30, 1997 from $5.7 million in 1996. In the first nine
months of 1997, research and development expenses increased by 18% to $20.4
million from $17.2 million in 1996. As a percent of total revenue, research and
development expenses were 16% and 15% for the three months ended September 30,
1997 and 1996, respectively. For the first nine months of 1997 and 1996,
research and development expenses as a percent of total revenue were 16% and
17%, respectively.
R&D investment increased in the third quarter in 1997 compared to 1996 due to
the timing of PASSPORT Release 6.0 which was completed by July 1997 and EMPAC
Release 7.5 which was completed by August 1997. The Company believes that a
significant level of investment in R&D is essential to remain competitive. The
amount of R&D in absolute dollars for a particular period may vary depending on
the projects in progress.
In accordance with Statement of Financial Accounting Standards No. 86, software
development costs are expensed as incurred until technological feasibility of
the software is established, after which any additional costs are capitalized.
To date, the Company has expensed all software development costs because
development costs incurred subsequent to the establishment of technological
feasibility have not been material.
Sales and Marketing. Sales and marketing expenses increased 9% to $7.4 million
in the three months ended September 30, 1997 from $6.8 million in 1996. In the
first nine months of 1997, sales and marketing expenses increased by 33% to $24
million from $18 million in 1996. As a percent of total revenue, sales and
marketing expenses were 17%, 18%, 19% and 18% for the three months ended
September 30, 1997 and 1996 and for the first nine months of 1997 and 1996,
respectively. The growth in sales and marketing expenses in absolute dollars is
primarily due to: (i) the addition of personnel, (ii) expansion of strategic
alliance program and (iii) changes in the mix of the revenue base on which
commission expense is generated. The Company believes that sales and marketing
expenses as a percentage of total revenues may continue to increase for the same
reasons.
13
<PAGE>
Results of Operations (continued)
General and Administrative. General and administrative expenses decreased 6% to
$3.2 million in the three months ended September 30, 1997 from $3.4 million in
1996. In the first nine months of 1997, general and administrative expenses
increased by 4% to $11.5 million from $11.0 million in 1996. As a percent of
total revenue, general and administrative expenses were 7% and 9% for the three
months ended September 30, 1997 and 1996, and for the first nine months of 1997
and 1996, 9% and 11%, respectively. General and administrative expenses in
absolute dollars remained relatively constant.
Provision for Income Taxes. Effective upon its incorporation in 1990, The Indus
Group, Inc. elected to have its United States income taxed under Subchapter S of
the Code. Accordingly, income tax provisions prior to 1996 were principally
attributable to state taxes and taxes imposed by foreign governments on The
Indus Group, Inc.'s foreign operations. The Indus Group, Inc.'s S Corporation
status terminated effective January 1, 1996, and The Indus Group, Inc. was
subject to federal income taxation at the corporate level thereafter. In
relation to the termination of S Corporation status as of January 1, 1996, a
one-time charge representing a cumulative net federal and state deferred income
tax liability of $6.7 million was recorded.
Income tax expense of $6.2 million represented $5.9 million of federal and state
corporate income taxes for The Indus Group,Inc. for the nine months ended
September 30, 1997 and $307,000 of foreign withholding taxes for TSW
International, Inc. TSW International, Inc. has domestic net operating loss
carryforwards in excess of $10.0 million which will expire in years 2010 through
2012; domestic research and experimental tax credits of approximately $776,000
which expire in years 2010 to 2012; domestic and foreign tax credits of
approximately $506,000 which can be carried forward indefinitely; and foreign
net operating loss carryforwards of approximately $2.9 million which can be
carried forward indefinitely. The utilization of these net operating loss
carryforwards to offset the Company's future taxable income may be limited
subject to rules of Internal Revenue Code Section 382.
Net Income (Loss). The net loss for the nine months ended September 30, 1997 was
the result of the $12.9 million merger related costs. This included charges to
operations of $9.98 million of merger related costs during the current period
that primarily related to approximately $6.7 million for transaction fees and
professional services, $1.7 million for consulting services incurred by a
significant shareholder and $1.6 million for other costs incident to the merger.
In addition to the merger related costs, the Company accrued costs and losses as
a restructuring of the Company totaling $2.1 million during the current period.
Of the total cost, $910,000 results from excess facilities that will be vacated
and $1.2 million from termination costs of excess or redundant employees. And as
a result of the merger, the Company incurred an extraordinary loss of $787,000
due to the early extinguishment of indebtedness of TSW International, Inc.
Pro Forma Net Income. For purposes of presenting comparative earnings and
calculating earnings per share data, pro forma net income for the nine months
ended September 30, 1996 reflects the elimination of the $6.7 million
nonrecurring cumulative deferred income tax charge upon converting from an S
Corporation to a C Corporation.
Liquidity and Capital Resources
The Company had total assets of $130.6 million and $117.9 million at September
30, 1997 and December 31, 1996, respectively. Historically, the Company has
financed its operations primarily through cash provided by operations,
borrowings under its line of credit, sales of Preferred Stock to a principal
shareholder and funds borrowed from principal shareholders. In March 1996, The
Indus Group, Inc. received $33.9 million, representing the proceeds (net of
underwriting commissions and offering costs) from an initial public offering of
2,500,000 shares of its Common Stock. These proceeds were used to purchase
marketable securities (comprised of municipal and U.S. government obligations)
and certain cash equivalent instruments.
As of September 30, 1997, the Company's principal sources of liquidity consisted
of approximately $4.5 million in cash and cash equivalents, $25.7 million in
marketable securities and a revolving bank line of credit of $35 million, which
is secured by all of the Company's accounts receivables. The revolving credit
facility expires in July 31, 1999. The revolving credit facility bears an
interest rate of the one month LIBOR rate plus 1.50% (7.16% as of September 30,
1997). This facility replaced and eliminated The Indus Group, Inc. and TSW
International, Inc. revolving lines of credit, which bore higher interest rates.
Approximately $26.6 million had been drawn down under this line of credit at
September 30, 1997.
In the nine months ended September 30, 1997, cash, cash equivalents and
marketable securities decreased substantially as a result of cash investment in
a 10% interest in TenFold Corporation ($8 million), the purchase of property and
equipment ($5.1 million),
14
<PAGE>
and cash used by operations ($8.5 million). Financing activities provided cash
of $9.6 million, primarily from the issuance of common stock in exchange for the
outstanding subordinated floating rate notes of TSW International, Inc.
Cash requirements are expected to continue to increase in order to fund: (i)
personnel and salary costs, (ii) research and development costs, (iii)
investment in additional technical equipment, and (iv) working capital
requirements. The Company presently anticipates additional capital expenditures
for the remainder of 1997 of approximately $1 million, primarily for equipment
and furniture.
In addition to its line of credit, the Company's principal commitments at
September 30, 1997, consisted of obligations under operating leases for
facilities and computer equipment.
The Company believes that its existing cash and marketable securities, together
with anticipated cash flow from operations and available bank borrowings, will
be sufficient to meet its cash requirements during the next 12 months. The
foregoing statement regarding the Company's expectations for continued liquidity
is a forward-looking statement, and actual results may differ materially
depending on a variety of factors, including variable operating results or
presently unexpected uses of cash, such as the merger of The Indus Group, Inc.
with TSW International, Inc. and acquisitions.
PART II: OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
There are no pending legal proceedings to which the Company is a
party or of which any of its property is subject.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
In connection with the consummation of the Merger, a new company
was formed, Indus International, Inc. in the State of Delaware. The shareholders
of The Indus Group, Inc. and TSW International, Inc. became stockholders of the
Company, pursuant to the conversion of each outstanding share of common stock of
The Indus Group, Inc. into one share of common stock of the Company, the
conversion of each outstanding share of common and preferred stock of TSW
International, Inc. into approximately 2.73 shares of common stock of the
Company, the conversion of each outstanding option to purchase common stock of
The Indus Group, Inc. into an option to purchase an equivalent number of shares
of common stock of the Company and the conversion of each outstanding option or
warrant of TSW International, Inc. to purchase approximately 2.73 times the
equivalent number of shares of common stock of the Company. In addition, the
outstanding subordinated floating rate notes of TSW (including accrued interest
thereon) were exchanged for an aggregate of 1,235,879 shares of the Company's
Common Stock and all rights to receive any unpaid dividends on TSW Preferred
Stock were converted into an aggregate of 53,937 shares of the Company's Common
Stock. The rights of the Company's stockholders are governed by the Company's
Certificate of Incorporation and Bylaws which differ in certain respects from
the Articles of Incorporation and Bylaws of The Indus Group, Inc. and TSW
International, Inc. In addition, the rights of the Company's stockholders have
been affected in certain respects as a result of being governed by Delaware law,
rather than California or Georgia law. A detailed comparison of the rights of
the stockholders of the Company with the rights of the stockholders of The Indus
Group, Inc. and TSW International, Inc. under such companies' charter documents,
and as a result of differences between Delaware law and California or Georgia
law, is set forth in the Registration Statement on Form S-4 filed by the Company
with the Securities and Exchange Commission on August 27, 1997
Use of proceeds from the offering by The Indus Group, Inc. in February, 1996 are
as follows:
Report of Sales of Securities and Use of Proceeds Therefrom (Form SR)
Aggregate offering price $37,500,000
Expenses incurred in connection with offering 3,636,236
-----------
Net offering proceeds to issuer $33,863,764
Purchase of equipment 750,000
Income taxes 3,841,421
Working capital 3,300,000
-----------
Temporary investment $25,972,343
-----------
15
<PAGE>
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
At a Special Meeting of Shareholders of The Indus Group, Inc. held
August 25, 1997, the shareholders approved the adoption of (i) the Agreement and
Plan of Merger and Reorganization, dated as of June 5, 1997, by and among The
Indus Group, Inc., a California corporation, Indus International, Inc., a
Delaware corporation, and TSW International, Inc., a Georgia corporation and
(ii) the Agreement of Merger among Indus International, Inc., The Indus Group,
Inc. and Indus Sub, Inc., a California corporation and a wholly-owned subsidiary
of Indus International, Inc.
VOTES FOR: 13,273,481 AGAINST: 244,200 ABSTAIN: 213
At a Special Meeting of Shareholders of TSW International, Inc.
held August 25, 1997, the shareholders approved the adoption of (i) the
Agreement and Plan of Merger and Reorganization, dated as of June 5, 1997, by
and among The Indus Group, Inc., a California corporation, Indus International,
Inc., a Delaware corporation, and TSW International, Inc., a Georgia corporation
and (ii) the Agreement of Merger among Indus International, Inc., TSW
International, Inc. and TSW Sub, Inc., a Georgia corporation and a wholly-owned
subsidiary of Indus International, Inc.
VOTES FOR: 3,108,871 AGAINST: 0 ABSTAIN: 0
PART II: OTHER INFORMATION (continued)
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
10.01 Credit Agreement dated September 2, 1997 (as amended through
First Amendment dated September 16, 1997) with Sumitomo Bank
of California and Union Bank of California, N.A.
11.01 Statement of Computation of Pro Forma Net Income Per Share.
27.01 Financial Data Schedule.
(b) Reports on Forms 8-K.
The Company filed a report on Form 8-K dated August 25, 1997 to report
the merger of The Indus Group, Inc. and TSW International, Inc.
16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
INDUS INTERNATIONAL, INC.
(Registrant)
Date: November 14, 1997
/s/ Robert W. Felton
----------------------------------------
Robert W. Felton
President and Chief Executive Officer
Date: November 14, 1997
/s/ Frank M. Siskowski
---------------------------------------
Frank M. Siskowski
Senior Vice President of Finance and
Chief Financial Officer
(Principal Financial and Accounting Officer)
17
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
------- -----------
10.01 10.01 Credit Agreement dated September 2, 1997 (as amended through
First Amendment dated September 16, 1997) with Sumitomo Bank of
California and Union Bank of California, N.A.
11.01 Statement of Computation of Pro Forma Net Income Per Share
27.01 Financial Data Schedule
18
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 2, 1997, is entered into by
and among:
(1) THE INDUS GROUP, INC., a California corporation ("Borrower");
(2) Each of the financial institutions from time to time listed in
Schedule I hereto, as amended from time to time (such financial
institutions to be referred to herein collectively as the "Banks"); and
(3) SUMITOMO BANK OF CALIFORNIA, a California banking corporation
("SBC"), as agent for the Banks (in such capacity, "Agent").
RECITALS
A. Pursuant to that certain Agreement and Plan of Merger and Reorganization
dated as of June 5, 1997, among Borrower, Indus Sub, Inc., a California
corporation ("Indus Sub"), TSW International, Inc., a Georgia corporation
("TSW"), TSW Sub, Inc., a Georgia corporation ("TSW Sub") and Indus
International, Inc., a Delaware corporation ("Parent") and certain related
agreements, (i) Indus Sub recently merged with and into Borrower, with Borrower
as the surviving corporation and a wholly-owned Subsidiary of Parent, and (ii)
TSW Sub merged with and into TSW, with TSW as the surviving corporation and a
wholly-owned Subsidiary of Parent. (Parent, Indus and TSW are sometimes referred
to herein as the "Indus International Group")
B. As a result of the above-described transaction, Borrower has requested
that the Banks provide certain credit facilities to Borrower to be used by
Borrower (i) to refinance the loans outstanding under that certain Amended and
Restated Commercial Loan Agreement, dated as of June 30, 1995, as amended
through the date hereof, between Borrower and SBC, (ii) to retire the existing
Indebtedness of TSW and (iii) to finance Borrower's working capital and general
corporate needs.
C. The Banks are willing to provide such credit facilities to Borrower upon
their understanding that upon the terms and subject to the conditions set forth
herein based upon certain representations that have been made by Parent to the
Banks that Borrower is to remain an operating company of the Indus International
Group and that the excess cash of the Indus International Group shall largely be
retained by Borrower.
<PAGE>
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION I. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Credit Document, each term set forth below, when used in this Agreement or
any other Credit Document, shall have the respective meaning given to that term
below or in the provision of this Agreement or other Credit Document referenced
below:
"Affiliate" shall mean, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially or as
a trustee, guardian or other fiduciary, five percent (5%) or more of any
class of Equity Securities of such Person, (b) each Person that controls,
is controlled by or is under common control with such Person or any
Affiliate of such Person or (c) each of such Person's officers, directors,
joint venturers and partners; provided, however, that in no case shall
Agent or any Bank be deemed to be an Affiliate of Parent or any of its
Subsidiaries (including Borrower) for purposes of this Agreement.
"Agent" shall have the meaning given to that term in clause (3) of the
introductory paragraph hereof.
"Agreement" shall mean this Credit Agreement.
"Applicable Lending Office" shall mean, with respect to any Bank, (a)
initially, its office designated as such in Schedule I (or, in the case of
any Bank which becomes a Bank by an assignment pursuant to Subparagraph
8.05(c), its office designated as such in the applicable Assignment
Agreement) and (b) subsequently, such other office or offices as such Bank
may designate to Agent as the office at which such Bank's Loans will
thereafter be maintained and for the account of which all payments of
principal of, and interest on, such Bank's Loans will thereafter be made.
"Applicable Margin" shall mean, with respect to any LIBOR Loan at any
time, the per annum margin which is determined pursuant to the Pricing Grid
and added to the LIBO Rate for such LIBOR Loan; provided, however, that
each Applicable Margin determined pursuant to the Pricing Grid shall be
increased by two percent (2.00%) on the date an Event of Default of the
type set forth in Subparagraph 6.01(a) occurs and ten (10) days after the
date of notification of any other type of Event of Default occurs and
remains uncured, and in each case shall continue at such increased rate
during the continuance of such Event of Default.
"Assignee Bank" shall have the meaning given to that term in
Subparagraph 8.05(c).
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"Assignment" shall have the meaning given to that term in Subparagraph
8.05(c).
"Assignment Agreement" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment Effective Date" shall have, with respect to each Assignment
Agreement, the meaning set forth therein.
"Assignor Bank" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Bank Parties" shall mean, collectively, the Banks and Issuing Bank.
Unless otherwise indicated, the term "Bank Parties" shall include any Bank
acting as Issuing Bank but not in its capacity as such.
"Banks" shall have the meaning given to that term in clause (2) of the
introductory paragraph hereof. Unless otherwise indicated, the term "Banks"
shall include any Bank acting as Issuing Bank but not in its capacity as
such.
"Base Rate" shall mean, on any day, the greater of (a) the Prime Rate
in effect on such date and (b) the Federal Funds Rate for such day plus
one-half percent (0.50%); provided, however, that the Base Rate shall be
increased by two percent (2.00%) on the date an Event of Default of the
type set forth in Subparagraph 6.01(a) occurs and ten (10) days after the
date of notification of any other type of Event of Default occurs and
remains uncured, and in each case shall continue at such increased rate
during the continuance of such Event of Default.
"Base Rate Loan" shall mean, at any time, a Loan which then bears
interest as provided in clause (i) of Subparagraph 2.01(c).
"Borrower" shall have the meaning given to that term in clause (1) of
the introductory paragraph hereof.
"Borrower Security Agreement" shall have the meaning given to that term
in Subparagraph 2.13(a).
"Borrowing" shall mean a borrowing by Borrower consisting of the Loans
made by each of the Banks on the same date and of the same Type pursuant to
a single Notice of Borrowing.
"Business Day" shall mean any day on which (a) commercial banks are not
authorized or required to close in San Francisco, California and (b) if
such Business Day is related to a Loan which bears or is to bear interest
based on a LIBO Rate, dealings in Dollar deposits are carried out in the
London or other applicable interbank eurodollar market.
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"Capital Adequacy Requirement" shall have the meaning given to that
term in Subparagraph 2.10(d).
"Capital Leases" shall mean any and all lease obligations that, in
accordance with GAAP, are required to be capitalized on the books of a
lessee.
"Cash Equivalents" shall mean:
(a) Direct obligations of, or obligations the principal and
interest on which are unconditionally guaranteed by, the United States
of America or obligations of any agency of the United States of America
to the extent such obligations are backed by the full faith and credit
of the United States of America, in each case maturing within twelve
months from the date of acquisition thereof;
(b) Certificates of deposit maturing within twelve months from
the date of acquisition thereof issued by a commercial bank or trust
company organized under the laws of the United States of America or a
state thereof or that is a Bank, provided that (A) such deposits are
denominated in Dollars, (B) such bank or trust company has capital,
surplus and undivided profits of not less than $100,000,000 and (C)
such bank or trust company has certificates of deposit or other debt
obligations rated at least A-1 (or its equivalent) by Standard and
Poor's Ratings Group or P-1 (or its equivalent) by Moody's Investors
Service, Inc.; and
(c) Open market commercial paper maturing within twenty-four
months from the date of acquisition thereof issued by a corporation
organized under the laws of the United States of America or a state
thereof, provided such commercial paper is rated at least BBB (or its
equivalent) by Standard and Poor's Ratings Group or Baa (or its
equivalent) by Moody's Investors Service, Inc.
"Change of Control" shall mean (a) with respect to Borrower, the
occurrence of any of the following events: (i) Parent shall cease to own
one hundred percent (100%) of the outstanding Equity Securities of Borrower
or TSW, or (ii) any change in the management of Borrower which Agent
determines will have a Material Adverse Effect; and (b) with respect to
Parent, the occurrence of any of the following events: (i) any person or
group of persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall (A) acquire beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended)
of fifty-one (51%) or more of the outstanding Equity Securities of Parent
entitled to vote for members of the board of directors, or (B) acquire all
or substantially all of the assets of Parent and its Subsidiaries
(including Borrower) taken as a whole, or (ii) any change in the management
of Parent which Agent determines will have a Material Adverse Effect.
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"Change of Law" shall have the meaning given to that term in
Subparagraph 2.10(b).
"Closing Date" shall mean the date, not later than September 2, 1997
when the initial Loan is made or the initial Letter of Credit is issued.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all property in which Agent or any Bank has a
Lien to secure the Obligations.
"Commitment" shall mean, with respect to any Bank at any time, such
Bank's Proportionate Share at such time of the Total Commitment at such
time.
"Commitment Fee Percentage" shall mean, with respect to the Unused
Commitment at any time, a per annum rate which is determined pursuant to
the Pricing Grid.
"Commitment Fees" shall have the meaning given to that term in
Subparagraph 2.04(a).
"Commitment Reduction Date" shall mean, collectively, the First
Commitment Reduction Date and the Second Commitment Reduction Date.
"Compliance Certificate" shall have the meaning given to that term in
Subparagraph 5.01(a).
"Contractual Obligation" of any Person shall mean, any indenture, note,
lease, loan agreement, security, deed of trust, mortgage, security
agreement, guaranty, instrument, contract, agreement or other form of
contractual obligation or undertaking to which such Person is a party or by
which such Person or any of its property is bound.
"Credit Documents" shall mean and include this Agreement, the LC
Applications, the Notes, and the Security Documents; all documents,
instruments and agreements delivered to any Agent or any Bank Party
pursuant to Paragraph 3.01; and all other documents, instruments and
agreements delivered by Borrower, Parent, any of their Subsidiaries or TSW
to Agent or any Bank Party in connection with this Agreement on or after
the date of this Agreement.
"Credit Event" shall mean the making of any Loan, the conversion of any
Base Rate Loan into a LIBOR Loan, the selection of a new Interest Period
for any LIBOR Loan, the issuance of any Letter of Credit or any amendment
of any Letter of Credit which increases its stated amount or extends its
expiration date.
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"Default" shall have the meaning given to that term in Paragraph 6.01.
"Dollars" and "$" shall mean the lawful currency of the United States
of America.
"Drawing Payment" shall have the meaning given to that term in
Subparagraph 2.02(c).
"Employee Benefit Plan" shall mean any employee benefit plan within the
meaning of section 3(3) of ERISA maintained or contributed to by Parent or
any ERISA Affiliate of Parent (including Borrower), other than a
Multiemployer Plan.
"Equity Securities" of any Person shall mean (a) all common stock,
preferred stock, participations, shares, partnership interests or other
equity interests in such Person (regardless of how designated and whether
or not voting or non-voting) and (b) all warrants, options and other rights
to acquire any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may from time to time be amended or supplemented, including any
rules or regulations issued in connection therewith.
"ERISA Affiliate" shall mean any Person which is treated as a single
employer with Parent under Section 414 of the Code.
"Event of Default" shall have the meaning given to that term in
Paragraph 6.01.
"Federal Funds Rate" shall mean, for any day, the Federal funds
effective rate as set forth in the weekly statistical release designated as
H.15(519) published by the Federal Reserve Bank of New York for such day,
or in any successor publication (or, if such rate is not so published for
any day, the average rate quoted to Agent on and for such day by three (3)
Federal funds brokers of recognized standing selected by Agent).
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
"Financial Statements" shall mean, with respect to any accounting
period for any Person, statements of income, shareholders' equity and cash
flows of such Person for such period, and a balance sheet of such Person as
of the end of such period, setting forth in each case in comparative form
figures for the corresponding period in the preceding fiscal year if such
period is less than a full fiscal year or, if such period is a full fiscal
year, corresponding figures from the preceding annual audit, all prepared
in reasonable detail and in accordance with GAAP.
"First Amendment Effective Date" shall mean September 16, 1997.
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"First Commitment Reduction Date" shall mean March 31, 1998.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to time,
consistently applied.
"Governmental Authority" shall mean any domestic or foreign national,
state or local government, any political subdivision thereof, any
department, agency, authority or bureau of any of the foregoing, or any
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including, without
limitation, the Federal Deposit Insurance Corporation, the Federal Reserve
Board, the Comptroller of the Currency, any central bank or any comparable
authority.
"Governmental Charges" shall mean, with respect to any Person, all
levies, assessments, fees, claims or other charges imposed by any
Governmental Authority upon such Person or any of its property or otherwise
payable by such Person.
"Governmental Rule" shall mean any law, rule, regulation, ordinance,
order, code interpretation, judgment, decree, directive, guidelines, policy
or similar form of decision of any Governmental Authority.
"Guaranty Obligation" shall mean, with respect to any Person, any
direct or indirect liability of that Person with respect to any
indebtedness, lease, dividend, letter of credit or other obligation of
another Person. The amount of any Guaranty Obligation shall be deemed equal
to the liability in respect thereof required to be reported as a liability
(contingent or otherwise) on either the balance sheet or in the financial
statements of such Person in accordance with GAAP.
"Hazardous Materials" shall mean all materials, substances and wastes
which are classified or regulated as "hazardous," "toxic" or similar
descriptions under any environmental law or which are hazardous, toxic,
harmful or dangerous to human health.
"Indebtedness" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other obligations of
such Person for borrowed money (including obligations to repurchase
receivables and other assets sold with recourse);
(b) All obligations of such Person for the deferred purchase
price of property or services (including obligations under letters of
credit and other credit facilities which secure or finance such
purchase price and obligations under "synthetic" leases);
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<PAGE>
(c) All obligations of such Person under conditional sale or
other title retention agreements with respect to property acquired by
such Person (to the extent of the value of such property if the rights
and remedies of the seller or lender under such agreement in the event
of default are limited solely to repossession or sale of such
property);
(d) All obligations of such Person as lessee under or with
respect to Capital Leases;
(e) All non-contingent payment or reimbursement obligations of
such Person under or with respect to letters of credit, banker's
acceptances or other similar instruments;
(f) All Guaranty Obligations of such Person with respect to the
obligations of other Persons of the types described in clauses (a) -
(e) above; and
(g) All obligations of other Persons of the types described in
clauses (a) - (f) above to the extent secured by (or for which any
holder of such obligations has an existing right, contingent or
otherwise, to be secured by) any Lien in any property (including
accounts and contract rights) of such Person, even though such Person
has not assumed or become liable for the payment of such obligations.
"Indus Sub" shall have the meaning given to that term in Recital A.
"Interest Account" shall have the meaning given to that term in
Subparagraph 2.07(b).
"Interest Period" shall mean, with respect to any LIBOR Loan, the time
periods selected by Borrower pursuant to Subparagraph 2.01(b) or
Subparagraph 2.01(d) which commences on the first day of such Loan or the
effective date of any conversion and ends on the last day of such time
period, and thereafter, each subsequent time period selected by Borrower
pursuant to Subparagraph 2.01(e) which commences on the last day of the
immediately preceding time period and ends on the last day of that time
period.
"Investment" of any Person shall mean any loan or advance of funds by
such Person to any other Person (other than advances to employees of such
Person for moving and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business), any purchase or other
acquisition of any Equity Securities or Indebtedness of any other Person,
any capital contribution by such Person to or any other investment by such
Person in any other Person (including any Guaranty Obligations of such
Person and any Indebtedness of such Person of the type described in clause
(f) of the definition of "Indebtedness" on behalf of any other Person);
provided, however, that Investments shall not include (a) accounts
receivable
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<PAGE>
or other indebtedness owed by customers of such Person which are current
assets and arose from sales of inventory in the ordinary course of such
Person's business or (b) prepaid expenses of such Person incurred and
prepaid in the ordinary course of business.
"Issuing Bank" shall mean SBC, in its capacity as issuer of letters of
credit under Paragraph 2.02.
"LC Application" shall have the meaning given to that term in
Subparagraph 2.02(b).
"LC Commitment" shall have the meaning given to that term in
Subparagraph 2.02(a).
"LC Facility Expiration Date" shall have the meaning given to that term
in Subparagraph 2.02(a).
"LC Issuance Fees" shall have the meaning given to that term in
Subparagraph 2.04(b).
"LC Usage Fee" shall have the meaning given to that term in
Subparagraph 2.04(b).
"LC Usage Fee Rate" shall mean, with respect to Letters of Credit, the
per annum rate which is determined pursuant to the Pricing Grid and used to
calculate the LC Usage Fee.
"Letter of Credit" shall have the meaning given to that term in
Subparagraph 2.02(a).
"Leverage Ratio" shall mean, with respect to Parent and its
Subsidiaries (including Borrower) at any time, the ratio, determined on a
consolidated basis in accordance with GAAP, of (a) the sum of the total
liabilities of Parent and its Subsidiaries (including Borrower) at such
time minus cash and Cash Equivalents in excess of Two Million Dollars
($2,000,000) to (b) the Tangible Net Worth of Parent and its Subsidiaries
(including Borrower) at such time.
"LIBO Rate" shall mean, with respect to any Interest Period for the
LIBOR Loans in any Borrowing, a rate per annum equal to the quotient of (a)
the arithmetic mean (rounded upward if necessary to the nearest 1/16 of one
percent) of the rates per annum appearing on the Reuters screen LIBO page
(or any successor publication) on the second Business Day prior to the
first day of such Interest Period at or about 11:00 A.M. (London time) (for
delivery on the first day of such Interest Period) for a term comparable to
such Interest Period, divided by (b) one minus the Reserve Requirement for
such Loans in effect from time to time. If for any reason rates are not
available as provided in clause (a) of the preceding sentence, the rate to
be used
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<PAGE>
in clause (a) shall be, at Agent's discretion, (i) the rate per annum at
which Dollar deposits are offered to Agent in the London interbank
eurodollar currency market or (ii) the rate at which Dollar deposits are
offered to Agent in, or by Agent to major banks in, any offshore interbank
eurodollar market selected by Agent, in each case on the second Business
Day prior to the commencement of such Interest Period at or about 10:00
A.M. (New York time) (for delivery on the first day of such Interest
Period) for a term comparable to such Interest Period and in an amount
approximately equal to the amount of the Loan to be made or funded by Agent
as part of such Borrowing.
"LIBOR Loan" shall mean, at any time, a Loan which then bears interest
as provided in clause (ii) of Subparagraph 2.01(c).
"Lien" shall mean, with respect to any property, any security interest,
mortgage, pledge, lien, charge or other encumbrance in, of, or on such
property or the income therefrom, and the filing of any financing statement
or similar instrument under the Uniform Commercial Code or comparable law
of any jurisdiction.
"Loan" shall have the meaning given to that term in Subparagraph
2.01(a).
"Margin Stock" shall have the meaning given to that term in Regulation
U issued by the Federal Reserve Board, as amended from time to time, and
any successor regulation thereto.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, assets, operations or financial or other condition of Parent
and its Subsidiaries (including Borrower); (b) the ability of Borrower to
pay or perform the Obligations in accordance with the terms of this
Agreement and the other Credit Documents; (c) the ability of Parent to pay
or perform its obligations in accordance with the terms of this Agreement
and the other Credit Documents; or (d) the rights and remedies of Agent and
the Bank Parties under this Agreement or any other Credit Documents taken
as a whole.
"maturity" shall mean, with respect to any Loan, Reimbursement
Obligation, interest, fee or other amount payable by Borrower under this
Agreement or the other Credit Documents, the date such Loan, interest,
Reimbursement Obligation, fee or other amount becomes due, whether upon the
stated maturity or due date, upon acceleration or otherwise.
"Maturity Date" shall have the meaning given to that term in
Subparagraph 2.01(a).
"Multiemployer Plan" shall mean any multiemployer plan within the
meaning of section 3(37) of ERISA maintained or contributed to by Parent or
any ERISA Affiliate.
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"Note" shall have the meaning given to that term in Subparagraph
2.07(a).
"Notice of Borrowing" shall have the meaning given to that term in
Subparagraph 2.01(b).
"Notice of Conversion" shall have the meaning given to that term in
Subparagraph 2.01(d).
"Notice of Interest Period Selection" shall have the meaning given to
that term in Subparagraph 2.01(e).
"Obligations" shall mean and include, with respect to Borrower and its
Affiliates, all loans, advances, debts, liabilities, and obligations,
howsoever arising, owed by Borrower to Agent or any Bank Party of every
kind and description (whether or not evidenced by any note or instrument
and whether or not for the payment of money), direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter arising
pursuant to the terms of this Agreement or any of the other Credit
Documents, including without limitation all interest, fees, charges,
expenses, attorneys' fees and accountants' fees chargeable to Borrower or
payable by Borrower hereunder or thereunder.
"Outstanding Facilities Credit" shall have the meaning given to that
term in Subparagraph 2.03(a).
"Parent" shall have the meaning given to that term in Recital A.
"Parent Guaranty" shall have the meaning given to that term in
Subparagraph 2.13(a).
"Participant" shall have the meaning given to that term in Subparagraph
8.05(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Indebtedness" shall have the meaning given to that term in
Subparagraph 5.02(a).
"Permitted Liens" shall have the meaning given to that term in
Subparagraph 5.02(b).
"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a limited liability company, a
joint stock company, an unincorporated association, a joint venture, a
trust or other entity or a Governmental Authority.
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"Pricing Grid shall mean Schedule II.
"Pricing Period" shall mean (a) the period commencing on the date of
this Agreement and ending on November 30, 1997, and (b) each consecutive
three-calendar month period thereafter which commences on the day following
the last day of the immediately preceding three-calendar month period and
ends on the last day of that time period.
"Prime Rate" shall mean the per annum rate publicly announced by Agent
from time to time at its San Francisco Branch. The Prime Rate is determined
by Agent from time to time as a means of pricing credit extensions to some
customers and is neither directly tied to any external rate of interest or
index nor necessarily the lowest rate of interest charged by Agent at any
given time for any particular class of customers or credit extensions. Any
change in the Base Rate resulting from a change in the Prime Rate shall
become effective on the Business Day on which each change in the Prime Rate
occurs.
"Proportionate Share" shall mean, with respect to each Bank, the
percentage set forth under the caption "Proportionate Share" opposite such
Bank's name on Schedule I, or, if changed, such percentage as may be set
forth for such Bank in the Register.
"Quick Ratio" shall mean, with respect to Parent and its Subsidiaries
(including Borrower) at any time, the ratio, determined on a consolidated
basis in accordance with GAAP, of:
(a) The sum at such time of all (i) cash of Parent and its
Subsidiaries (including Borrower); (ii) Cash Equivalents of Parent and
its Subsidiaries (including Borrower); and (iii) accounts receivable of
Parent and its Subsidiaries (including Borrower), less all reserves
therefor; provided, however, that in computing the foregoing sum, there
shall be excluded therefrom any cash, Cash Equivalent or accounts
receivable subject to a security interest (except a security interest
in favor of Agent or any Bank Party securing the Obligations);
to
(b) The sum at such time of (i) the current liabilities of Parent
and its Subsidiaries (including Borrower); and (ii) to the extent not
included in such current liabilities, the Outstanding Facilities Credit
at such time.
"Register" shall have the meaning given to that term in Subparagraph
8.05(d).
"Reimbursement Obligation" shall have the meaning given to that term in
Subparagraph 2.02(c).
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"Reimbursement Payment" shall have the meaning given to that term in
Subparagraph 2.02(c).
"Reportable Event" shall have the meaning given to that term in ERISA
and applicable regulations thereunder.
"Requirement of Law" applicable to any Person shall mean (a) the
Articles or Certificate of Incorporation and By-laws, Partnership
Agreement, Operating Agreement or other organizational or governing
documents of such Person, (b) any Governmental Rule binding upon such
Person, (c) any license, permit, approval or other authorization granted by
any Governmental Authority to or for the benefit of such Person or (d) any
judgment, decision or determination of any Governmental Authority or
arbitrator, in each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its property is subject.
"Reserve Requirement" shall mean, with respect to any day in an
Interest Period for a LIBOR Loan, the aggregate of the reserve requirement
rates (expressed as a decimal) in effect on such day for eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation
D of the Federal Reserve Board) maintained by a member bank of the Federal
Reserve System. As used herein, the term "reserve requirement" shall
include, without limitation, any basic, supplemental or emergency reserve
requirements imposed on Bank by any Governmental Authority.
"Required Banks" shall mean (a) at any time Loans are outstanding and
the Banks are obligated to make Loans pursuant to their Commitments, Banks
holding seventy-five percent (75%) or more of the aggregate principal
amount of all Loans outstanding, calculated as if Loans in the full amount
of the Banks' Commitments were outstanding, (b) at any time Loans are
outstanding and the Banks are not obligated to make Loans pursuant to their
Commitments, Banks holding seventy-five percent or more of the aggregate
principal amount of all Loans outstanding and (c) at any time no Loans are
outstanding, Banks whose aggregate Commitments exceed seventy-five percent
(75%) or more of the Total Commitment at such time.
"SBC" shall have the meaning given to that term in clause (3) of the
introductory paragraph hereof.
"Second Commitment Reduction Date" shall mean September 30, 1998.
"Security Documents" shall mean and include the Borrower Security
Agreement, the TSW Security Agreement, the Parent Guaranty, the TSW
Guaranty and all other instruments, agreements, certificates and documents
(including Uniform Commercial Code financing statements) delivered to Agent
or any Bank in connection with any Collateral to secure the Obligations.
"Solvent" shall mean, with respect to any Person on any date, that on
such date (a) the fair value of the property of such Person is greater than
the fair value of
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the liabilities (including, without limitation, contingent liabilities) of
such Person, (b) the present fair saleable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital.
"Subsidiary" of any Person shall mean (a) any corporation of which more
than 50% of the issued and outstanding Equity Securities having ordinary
voting power to elect a majority of the Board of Directors of such
corporation is at the time directly or indirectly owned or controlled by
such Person and (b) any partnership, joint venture, or other association of
which more than 50% of the equity interest having the power to vote, direct
or control the management of such partnership, joint venture or other
association is at the time owned and controlled by such Person.
"Tangible Net Worth" shall mean, with respect to Parent and its
Subsidiaries (including Borrower) at any time, the remainder at such time,
determined on a consolidated basis in accordance with GAAP, of (a) the
total assets of Parent and its Subsidiaries (including Borrower) minus (b)
the sum (without limitation and without duplication of deductions) of (i)
the Total Liabilities of Parent and its Subsidiaries (including Borrower),
(ii) all reserves established by Parent and its Subsidiaries (including
Borrower) for anticipated losses and expenses (to the extent not deducted
in calculating total assets in clause (a) above), and (iii) all intangible
assets of Parent and its Subsidiaries (including Borrower) (to the extent
included in calculating total assets in clause (a) above), including,
without limitation, goodwill (including any amounts, however designated on
the balance sheet, representing the cost of acquisition of businesses and
investments in excess of underlying tangible assets), trademarks, trademark
rights, trade name rights, copyrights, patents, patent rights, licenses,
unamortized debt discount, marketing expenses, organizational expenses,
non-compete agreements and deferred research and development and (iv) all
loans owed to Parent and its Subsidiaries (including Borrower) by officers,
directors and employees of Parent and its Subsidiaries (including
Borrower).
"Taxes" shall have the meaning given to such term in Subparagraph
2.11(a).
"Total Commitment" shall mean (a) from and after the Closing Date up to
the First Amendment Effective Date, Twenty-Five Million Dollars; (b) from
and after the First Amendment Effective Date up to and including the First
Commitment Reduction Date, Thirty-Five Million Dollars ($35,000,000) or, if
such amount is reduced pursuant to Subparagraph 2.03(b), the amount to
which so reduced and in effect at such time; (c) from and after April 1,
1998 through the Second Commitment Reduction Date, Thirty Million Dollars
($30,000,000) or, if such amount is reduced pursuant to Subparagraph
2.03(b), the amount to which so reduced and in effect at such time; and (d)
from and after October 1, 1998 through the Maturity Date,
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Twenty-Five Million Dollars ($25,000,000) or, if such amount is reduced
pursuant to Subparagraph 2.03(b), the amount to which so reduced and in
effect at such time.
"Total Liabilities" shall mean, with respect to Parent and its
Subsidiaries (including Borrower) at any time, the sum at such time,
determined on a consolidated basis in accordance with GAAP, of (a) all
liabilities of Parent and its Subsidiaries (including Borrower) determined
in accordance with GAAP plus (b) all Guaranty Obligations of Parent and its
Subsidiaries (including Borrower) at such time.
"TSW" shall have the meaning given to that term in Recital A.
"TSW Sub" shall have the meaning given to that term in Recital A.
"TSW Guaranty" shall have the meaning given to that term in
Subparagraph 2.13(a).
"TSW Security Agreement" shall have the meaning given to that term in
Subparagraph 2.13(a).
"Type" shall mean, with respect to any Loan or Borrowing at any time,
the classification of such Loan or Borrowing by the type of interest rate
it then bears, whether an interest rate based on the Base Rate or the LIBO
Rate.
"UCP" shall have the meaning given to that term in Subparagraph
2.02(a).
"Unused Commitment" shall mean, at any time after this Agreement is
executed by Borrower, Agent and Banks, the remainder of (a) the Total
Commitment at such time minus (b) the sum of the aggregate principal amount
of all Loans then outstanding and the aggregate stated amount of all
Letters of Credit then outstanding.
1.02. GAAP. Unless otherwise indicated in this Agreement or any other
Credit Document, all accounting terms used in this Agreement or any other Credit
Document shall be construed, and all accounting and financial computations
hereunder or thereunder shall be computed, in accordance with GAAP. If GAAP
changes during the term of this Agreement such that any covenants contained
herein would then be calculated in a different manner or with different
components, Borrower, the Banks and Agent agree to negotiate in good faith to
amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change in GAAP;
provided, however, that, until Borrower, the Banks and Agent so amend this
Agreement, all such covenants shall be calculated in accordance with GAAP as in
effect immediately prior to such change.
1.03. Headings. Headings in this Agreement and each of the other Credit
Documents are for convenience of reference only and are not part of the
substance hereof or thereof.
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1.04. Plural Terms. All terms defined in this Agreement or any other Credit
Document in the singular form shall have comparable meanings when used in the
plural form and vice versa.
1.05. Time. All references in this Agreement and each of the other Credit
Documents to a time of day shall mean San Francisco, California time unless
otherwise indicated.
1.06. Governing Law. This Agreement and each of the other Credit Documents
(unless otherwise provided in such other Credit Documents) shall be governed by
and construed in accordance with the laws of the State of California without
reference to conflicts of law rules.
1.07. Construction. This Agreement is the result of negotiations among, and
has been reviewed by, Borrower, each Bank, Agent and their respective counsel.
Accordingly, this Agreement shall be deemed to be the product of all parties
hereto, and no ambiguity shall be construed in favor of or against Borrower,
Agent or any Bank Party.
1.08. Entire Agreement. This Agreement and each of the other Credit
Documents, taken together, constitute and contain the entire agreement of
Borrower, the Banks and Agent and supersede any and all prior agreements,
negotiations, correspondence, understandings and communications among the
parties, whether written or oral, respecting the subject matter hereof.
1.09. Calculation of Interest and Fees. All calculations of interest and
fees under this Agreement and the other Credit Documents for any period (a)
shall include the first day of such period and exclude the last day of such
period and (b) shall be calculated on the basis of a year of 360 days for actual
days elapsed, except that during any period any Loan bears interest based upon
the Base Rate, such interest shall be calculated on the basis of a year of 365
or 366 days, as appropriate, for actual days elapsed.
1.10. Other Interpretive Provisions. References in this Agreement to
"Recitals," "Sections," "Paragraphs," "Subparagraphs," "Exhibits" and
"Schedules" are to recitals, sections, paragraphs, subparagraphs, exhibits and
schedules herein and hereto unless otherwise indicated. References in this
Agreement and each of the other Credit Documents to any document, instrument or
agreement (a) shall include all exhibits, schedules and other attachments
thereto, (b) shall include all documents, instruments or agreements issued or
executed in replacement thereof and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time. The words
"hereof," "herein" and "hereunder" and words of similar import when used in this
Agreement or any other Credit Document shall refer to this Agreement or such
other Credit Document, as the case may be, as a whole and not to any particular
provision of this Agreement or such other Credit Document, as the case may be.
The words "include" and "including" and words of similar import when used in
this Agreement or any other Credit Document shall not be construed to be
limiting or exclusive.
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In the event of any inconsistency between the terms of this Agreement and the
terms of any other Credit Document, the terms of this Agreement shall govern.
SECTION II. CREDIT FACILITIES.
2.01. Loan Facility.
(a) Loan Availability. Subject to the terms and conditions of
this Agreement (including the amount limitations set forth in Paragraph
2.03), each Bank severally agrees to advance to Borrower from time to
time during the period beginning on the Closing Date and ending on July
31, 1999 (the "Maturity Date") such revolving loans as Borrower may
request under this Paragraph 2.01 (individually, a "Loan"); provided,
however, that (i) the aggregate principal amount of all Loans made by
such Bank at any time outstanding shall not exceed such Bank's
Commitment at such time and (ii) the aggregate principal amount of all
Loans made by all Banks at any time outstanding shall not exceed the
Total Commitment at such time. All Loans shall be made on a pro rata
basis by the Banks in accordance with their respective Proportionate
Shares, with each Borrowing to be comprised of a Loan by each Bank
equal to such Bank's Proportionate Share of such Borrowing. Except as
otherwise provided herein, Borrower may borrow, repay and reborrow
Loans until the Maturity Date.
(b) Notice of Borrowing. Borrower shall request each Borrowing by
delivering to Agent an irrevocable written notice in the form of
Exhibit A, appropriately completed (a "Notice of Borrowing"), which
specifies, among other things:
(i) The principal amount of the requested Borrowing,
which shall be in the amount of (A) $500,000 or an integral
multiple of $100,000 in excess thereof;
(ii) Whether the requested Borrowing is to consist of
Base Rate Loans or LIBOR Loans;
(iii) If the requested Borrowing is to consist of LIBOR
Loans, the initial Interest Period selected by Borrower for such
LIBOR Loans in accordance with Subparagraph 2.01(e); and
(iv) The date of the requested Borrowing, which shall be
a Business Day.
Borrower shall give each Notice of Borrowing to Agent at least three
(3) Business Days before the date of the requested Borrowing in the
case of a Borrowing consisting of LIBOR Loans and at least one (1)
Business Day before the date of the requested Borrowing in the case of
a Borrowing consisting of Base Rate Loans. Each
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Notice of Borrowing shall be delivered by first-class mail or facsimile
to Agent at the office or facsimile number and during the hours
specified in Paragraph 8.01; provided, however, that Borrower shall
promptly deliver to Agent the original of any Notice of Borrowing
initially delivered by facsimile. Agent shall promptly notify each Bank
of the contents of each Notice of Borrowing and of the amount and Type
of (and, if applicable, the Interest Period for) each Loan to be made
by such Bank as part of the requested Borrowing.
(c) Interest Rates. Borrower shall pay interest on the unpaid
principal amount of each Loan from the date of such Loan until the
maturity thereof, at one of the following rates per annum:
(i) During such periods as such Loan is a Base Rate Loan,
at a rate per annum equal to the Base Rate, such rate to change
from time to time as the Base Rate shall change; and
(ii) During such periods as such Loan is a LIBOR Loan, at
a rate per annum equal at all times during each Interest Period
for such LIBOR Loan to the LIBO Rate for such Interest Period
plus the Applicable Margin therefor, such rate to change from
time to time during such Interest Period as the Applicable Margin
shall change;
Provided, however, that all Loans outstanding during the period
commencing on the Closing Date and ending three (3) Business Days after
the Closing Date shall be Base Rate Loans. All Loans in each Borrowing
shall, at any given time prior to maturity, bear interest at one, and
only one, of the above rates. The number of Borrowings consisting of
LIBOR Loans shall not exceed ten (10) at any time.
(d) Conversion of Loans. Borrower may convert any Borrowing from
one Type of Borrowing to the other Type; provided, however, that any
conversion of a Borrowing consisting of LIBOR Loans into a Borrowing
consisting of Base Rate Loans shall be made on, and only on, the last
day of an Interest Period for such LIBOR Loans. Borrower shall request
such a conversion by an irrevocable written notice to Agent in the form
of Exhibit B, appropriately completed (a "Notice of Conversion"), which
specifies, among other things:
(i) The Borrowing which is to be converted;
(ii) The Type of Loans into which such Loans are to be
converted;
(iii) If such Borrowing is to be converted into a
Borrowing consisting of LIBOR Loans, the initial Interest Period
selected by Borrower for such Loans in accordance with
Subparagraph 2.01(e); and
(iv) The date of the requested conversion, which shall be
a Business Day.
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Borrower shall give each Notice of Conversion to Agent at least three
(3) Business Days before the date of the requested conversion in the
case of a conversion into a Loan consisting of LIBOR Loans and at least
one (1) Business Day before the date of the requested conversion in the
case of a conversion into a Loan consisting of Base Rate Loans. Each
Notice of Conversion shall be delivered by first-class mail or
facsimile to Agent at the office or to the facsimile number and during
the hours specified in Paragraph 8.01; provided, however, that Borrower
shall promptly deliver to Agent the original of any Notice of
Conversion initially delivered by facsimile. Agent shall promptly
notify each Bank of the contents of each Notice of Conversion.
(e) LIBOR Loan Interest Periods.
(i) The initial and each subsequent Interest Period
selected by Borrower for a LIBOR Loan shall be one (1), two (2),
three (3), four (4), five (5), six (6), nine (9) or twelve (12)
months as Borrower may specify; provided, however, that (A) any
Interest Period which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding Business
Day unless such next Business Day falls in another calendar
month, in which case such Interest Period shall end on the
immediately preceding Business Day; (B) any Interest Period which
begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month; (C) no Interest Period
for any Borrowing shall end after a Commitment Reduction Date,
if, as a result of the selection of such Interest Period, the
Outstanding Facilities Credit as of such Commitment Reduction
Date shall exceed the Total Commitment as of such Commitment
Reduction Date; and (D) no Interest Period shall end after the
Maturity Date.
(ii) Borrower shall notify Agent by an irrevocable
written notice in the form of Exhibit C, appropriately completed
(a "Notice of Interest Period Selection"), at least three (3)
Business Days prior to the last day of each Interest Period for
LIBOR Loans of the Interest Period selected by Borrower for the
next succeeding Interest Period for such Loans. Each Notice of
Interest Period Selection shall be given by first-class mail or
facsimile to the office or the facsimile number and during the
hours specified in Paragraph 8.01; provided, however, that
Borrower shall promptly deliver to Agent the original of any
Notice of Interest Period Selection initially delivered by
facsimile. If Borrower fails to notify Agent of the next Interest
Period for LIBOR Loans in accordance with this Subparagraph
2.01(e), such LIBOR Loans shall automatically convert to Base
Rate Loans on the last day of the current Interest Period
therefor.
(f) Scheduled Loan Payments. Borrower shall repay the unpaid
principal amount of all Loans on the Maturity Date. Borrower shall pay
accrued interest on the unpaid principal amount of the Loans in arrears
(i) in the case of Base Rate Loans, on
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the last Business Day in each month; (ii) in the case of LIBOR Loans,
on the last day of each Interest Period thereof (and, if any such
Interest Period is longer than one (1) month, on the last Business Day
in each month after the first day of such Interest Period); and (iii)
in the case of all Loans, upon prepayment (to the extent thereof) and
at maturity.
(g) Purpose. Borrower shall use the proceeds of the Loans (i) to
refinance the loans outstanding under that certain Amended and Restated
Commercial Loan Agreement, dated as of June 30, 1995, as amended
through the date hereof, between Borrower and SBC, (ii) to retire the
existing Indebtedness of TSW and (iii) to finance Borrower's working
capital and general corporate needs.
2.02. Letter of Credit Facility.
(a) Letter of Credit Availability. Subject to the terms and
conditions of this Agreement (including the amount limitations set
forth in Paragraph 2.03, Issuing Bank shall issue on behalf of Borrower
from time to time during the period beginning on the Closing Date and
ending on the date which is fifteen (15) days prior to the Maturity
Date (the "LC Facility Expiration Date") such letters of credit as
Borrower may request under this Paragraph 2.02 (individually, a "Letter
of Credit"); provided, however, as follows:
(i) The aggregate amount available for drawing under all
Letters of Credit at any time outstanding shall not exceed Five
Million Dollars ($5,000,000) (such amount, as reduced from time
to time pursuant to this Agreement, to be referred to herein as
the "LC Commitment").
(ii) Each Letter of Credit shall expire on or prior to
the LC Facility Expiration Date (or if such Letter of Credit
shall extend beyond the Expiration Date, Borrower shall agree in
connection with the issuance of such Letter of Credit that on or
prior to the Expiration Date Borrower shall deposit with Agent an
amount equal to the face amount of such Letter of Credit as cash
collateral for the Obligations of Borrower under such Letter of
Credit to be applied to repay any draws after the Expiration Date
on such Letter of Credit).
(iii) Each Letter of Credit shall be governed by the
Uniform Customs and Practices for Documentary Credits as most
recently published by the International Chamber of Commerce (the
"UCP") prior to the date of issuance of such Letter of Credit and
the terms of the UCP are hereby incorporated by reference with
respect to each Letter of Credit.
(iv) Each Letter of Credit shall be in a form reasonably
acceptable to Issuing Bank.
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Except as otherwise provided herein, Borrower may request Letters of
Credit, cause or allow Letters of Credit to expire and request
additional Letters of Credit until the LC Facility Expiration Date.
(b) LC Application. Borrower shall request each Letter of Credit
by delivering to Agent and Issuing Bank an irrevocable written
application in a form reasonably acceptable to Issuing Bank (it being
understood that such form shall not contain terms inconsistent with the
terms set forth in this Agreement), appropriately completed (an "LC
Application"), which specifies, among other things:
(i) The stated amount of the requested Letter of Credit;
(ii) The name and address of the beneficiary of the
requested Letter of Credit;
(iii) The expiration date of the requested Letter of
Credit;
(iv) The documentary conditions for drawing under the
requested Letter of Credit;
(v) The date of issuance for the requested Letter of
Credit, which shall be a Business Day; and
(vi) The aggregate amount available for drawing under all
Letters of Credit then outstanding.
Borrower shall give each LC Application to Issuing Bank at least three
(3) Business Days before the proposed date of issuance of the requested
Letter of Credit. Each LC Application shall be delivered by an
established express courier service, first-class mail or facsimile to
Agent and Issuing Bank at their respective offices or facsimile numbers
and during the hours specified in Paragraph 8.01; provided, however,
that Borrower shall promptly deliver to Issuing Bank the original of
any LC Application initially delivered by facsimile. Agent shall
promptly notify each Bank of the contents of each LC Application. In
the event of any conflict between the terms of this Agreement and the
terms of any LC Application, the terms of this Agreement shall control.
(c) Disbursement and Reimbursement.
(i) Disbursement. Issuing Bank will notify Borrower by
facsimile forthwith upon receipt of the presentment of any demand
for payment under any Letter of Credit, together with notice of
the amount of such payment and the date such payment shall be
made. Subject to the terms and provisions of such Letter of
Credit, Issuing Bank shall make such payment (a "Drawing
Payment") to the appropriate beneficiary.
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(ii) Time of Reimbursement. Not later than 11:00 a.m. on
the day each Drawing Payment is to be made by Issuing Bank,
Borrower shall make or cause to be made to Issuing Bank a payment
in the amount of such Drawing Payment (a "Reimbursement
Payment"); provided, however, that Borrower shall make such
Reimbursement Payment to, or cause such Reimbursement Payment to
be made to, Agent for the benefit of the Banks if, prior to the
time such Reimbursement Payment is made, Issuing Bank has
notified Borrower that it has requested the Banks pursuant to
clause (ii) of Subparagraph 2.02(d) to pay to Issuing Bank their
respective Proportionate Shares of the Drawing Payment made by
Issuing Bank. If any such Reimbursement Payment is made to Agent,
Agent shall promptly pay to each Bank which has paid its
Proportionate Share of the Drawing Payment, such Bank's
Proportionate Share of the Reimbursement Payment and shall
promptly pay to Issuing Bank the balance of such Reimbursement
Payment.
(iii) Reimbursement Obligation Absolute. The obligation
of Borrower to reimburse Issuing Bank or the Banks, as the case
may be, for Drawing Payments (such obligation to be referred to
herein collectively as a "Reimbursement Obligation") shall be
absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under and
without regard to any circumstances, including, without
limitation (A) any lack of validity or enforceability of any of
the Credit Documents, (B) the existence of any claim, setoff,
defense or other right which Borrower may have at any time
against any beneficiary or any transferee of any Letter of Credit
(or any Persons for whom any such beneficiary or transferee may
be acting), Issuing Bank, Agent, any Bank Party or any other
Person, whether in connection with this Agreement, the
transactions contemplated herein or in the other Credit
Documents, or in any unrelated transaction, (C) any breach of
contract or dispute between Borrower, any beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any
such beneficiary or transferee may be acting), Issuing Bank,
Agent, any Bank Party or any other Person, (D) any demand,
statement or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in
any respect, (E) payment by Issuing Bank under any Letter of
Credit against presentation of a demand for payment which does
not comply with the terms of such Letter of Credit, (F) any
non-application or misapplication by any beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any
such beneficiary or transferee may be acting) of the proceeds of
any drawing under such Letter of Credit or (G) any delay,
extension of time, renewal, compromise or other indulgence or
modification granted or agreed to by Issuing Bank, Agent or any
Bank Party, with or without notice to or approval by Borrower,
with respect to Borrower's indebtedness under this Agreement;
provided, that this Subparagraph 2.02(b) shall not abrogate any
right which Borrower may have to seek to enjoin any drawing under
any Letter of Credit or to recover damages from Issuing Bank
pursuant to Subparagraph 2.02(e).
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(d) Bank Participations; Loan Funding.
(i) Participation Agreement. Each Bank severally,
unconditionally and irrevocably agrees with Issuing Bank to
participate in the extension of credit arising from the issuance
of each Letter of Credit in an amount equal to such Bank's
Proportionate Share of the stated amount of such Letter of Credit
from time to time, and the issuance of each Letter of Credit
shall be deemed a confirmation by Issuing Bank of such
participation in such amount.
(ii) Participation Funding. Issuing Bank may request the
Banks to fund their participations in Letters of Credit by paying
to Issuing Bank all or any portion of any Drawing Payment made or
to be made by Issuing Bank under any Letter of Credit. Issuing
Bank shall make such a request by delivering to Agent (with a
copy to Borrower), at any time after the drawing for which such
payment is requested has been made upon Issuing Bank, a written
request for such payment which specifies the amount of such
Drawing Payment and the date on which such Drawing Payment is to
be made or was made; provided, however, that Issuing Bank shall
not request the Banks to make any payment under this Subparagraph
2.02(d) in connection with any portion of a Drawing Payment for
which Issuing Bank has been reimbursed from a Reimbursement
Payment by Borrower unless such Reimbursement Payment has been
thereafter recovered by Borrower. Agent shall promptly notify
each Bank of the contents of each such request and of such Bank's
Proportionate Share of the applicable portion of such Drawing
Payment. Promptly following receipt of such notice from Agent,
each Bank shall pay to Agent, for the benefit of Issuing Bank,
such Bank's Proportionate Share of the applicable portion of such
Drawing Payment.
(iii) Funding Through Loans. At any time any
Reimbursement Obligations are outstanding, Agent may or, upon the
written request of Issuing Bank (if Borrower is not then the
subject of a bankruptcy proceeding), shall (subject to the terms
and conditions of this Subparagraph 2.02(d)), initiate a
Borrowing in an amount not exceeding the aggregate amount of such
outstanding Reimbursement Obligations and use the proceeds of
such Loan to repay all or a portion of such Reimbursement
Obligations. Agent shall initiate such a Borrowing by delivering
to each Bank (with a copy to Borrower) a written notice which
specifies the aggregate amount of outstanding Reimbursement
Obligations, the amount of the Borrowing, the date of such
Borrowing and the amount of the Loan to be made by such Bank as
part of such Borrowing. Each Bank shall make available to Agent
funds in the amount of its Proportionate Share of such Loan as
provided in Subparagraph 2.08(a). After receipt of such funds,
Agent shall promptly disburse such funds to Issuing Bank and the
Banks, as appropriate, in payment of the outstanding
Reimbursement Obligations.
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(iv) Obligations Absolute. Each Bank's obligations to
fund its participations under this Subparagraph 2.02(d) shall be
absolute, unconditional and irrevocable and shall not be affected
by (A) the occurrence or existence of any Default or Event of
Default, (B) any failure to satisfy any condition set forth in
Section III, (C) any event or condition which might have a
Material Adverse Effect, (D) the failure of any other Bank to
make any payment under this Subparagraph 2.02(d), (E) any right
of offset, abatement, withholding or reduction which such Bank
may have against Issuing Bank, Agent, any other Bank Party or
Borrower, (F) any event, circumstance or condition set forth in
Subparagraph 2.02(c) or Subparagraph 2.02(e), or (G) any other
event, circumstance or condition whatsoever, whether or not
similar to any of the foregoing; provided, that nothing in this
Paragraph 2.02 shall prejudice any right which any Bank may have
against Issuing Bank for any action by Issuing Bank which
constitutes gross negligence or willful misconduct.
(e) Liability of Issuing Bank, Etc. Borrower agrees that none of
Issuing Bank, Agent or any other Bank Party (nor any of their
respective directors, officers or employees) shall be liable or
responsible for (i) the use which may be made of any Letter of Credit
or for any acts or omissions of any beneficiary or transferee thereof
in connection therewith; (ii) any reference which may be made to this
Agreement or to any Letter of Credit in any agreements, instruments or
other documents relating to obligations secured by such Letter of
Credit; (iii) the validity, sufficiency or genuineness of documents, or
of any endorsement(s) thereon, even if such documents should in fact
prove to be in any or all respects invalid, insufficient, fraudulent or
forged or any statement therein prove to be untrue or inaccurate in any
respect whatsoever; (iv) payment by Issuing Bank against presentation
of documents which do not comply with the terms of any Letter of
Credit, including failure of any documents to bear any reference or
adequate reference to any Letter of Credit; or (v) any other
circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except only that Issuing Bank shall be liable to
Borrower for acts or events described in clauses (i) through (v) above,
to the extent, but only to the extent, of any damages suffered by
Borrower (excluding consequential damages) which Borrower proves were
caused by (A) Issuing Bank's willful misconduct, bad faith or gross
negligence in determining whether a drawing made under any Letter of
Credit complies with the terms and conditions therefor stated in such
Letter of Credit or (B) Issuing Bank's willful misconduct, bad faith or
gross negligence in failing to pay under any Letter of Credit after a
drawing by the beneficiary thereof strictly complying with the terms
and conditions of such Letter of Credit. Without limiting the
foregoing, Issuing Bank may accept a drawing that appears on its face
to be in order, without responsibility for further investigation. The
determination of whether a drawing has been made under any Letter of
Credit prior to its expiration or whether a drawing made under any
Letter of Credit is in proper and sufficient form shall be made by
Issuing Bank in its sole discretion, which determination shall be
conclusive and binding upon Borrower to the extent permitted by law.
Borrower hereby waives any right to object to any payment made under
any Letter of Credit with regard to a
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drawing that is in the form provided in such Letter of Credit but which
varies with respect to punctuation, capitalization, spelling or similar
matters of form.
(f) Reports of Issuing Bank. While any Letter of Credit is
outstanding, Issuing Bank shall on a monthly basis provide to Agent or
any Bank such information regarding the Letters of Credit as Agent or
such Bank may reasonably request, including the Letters of Credit
outstanding, the stated amounts of outstanding Letters of Credit, the
expiration dates of outstanding Letters of Credit, the names of the
beneficiaries of outstanding Letters of Credit, the amounts of unpaid
Reimbursement Obligations and the amounts and times of Drawing Payments
and Reimbursement Payments.
(g) Purpose. Borrower shall use the Letters of Credit solely as
provided in clause (ii) of Subparagraph 2.02(a).
2.03. Amount Limitations, Commitment Reductions, Etc.
(a) Total Commitments. The sum of the aggregate principal amount
of all Loans outstanding at any time, the aggregate amount available
for drawing under all Letters of Credit then outstanding and the
aggregate amount of all Reimbursement Obligations then outstanding
(such sum to be referred to herein as the "Outstanding Facilities
Credit") shall not exceed the Total Commitment at such time.
(b) Optional Reduction or Cancellation of Commitments. Borrower
may, upon three (3) Business Days written notice to Agent (and, in the
case of the LC Commitment, to Issuing Bank), permanently reduce the
Total Commitment by the amount of $20,000,000 or integral multiples of
$5,000,000 in excess thereof or cancel the Total Commitment in its
entirety; provided, however, that:
(i) Borrower may not reduce the Total Commitment if,
after giving effect to such reduction, the Outstanding Facilities
Credit would exceed the Total Commitment at such time as so
reduced; and
(ii) Borrower may not cancel the Total Commitment if,
after giving effect to such cancellation, any Loan or Letter of
Credit would remain outstanding.
(c) Effect of Commitment Reductions. From the effective date of
any reduction of the Total Commitment, the Commitment Fees payable
pursuant to Subparagraph 2.04(b) shall be computed on the basis of the
Total Commitment as so reduced. Any reduction of the Total Commitment
shall be applied ratably to reduce each Bank's Commitment in accordance
with clause (i) of Subparagraph 2.09(a).
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2.04. Fees.
(a) Commitment Fees. Borrower shall pay to Agent, for the ratable
benefit of the Banks as provided in clause (v) of Subparagraph 2.09(a),
nonrefundable commitment fees (the "Commitment Fees") equal to the
Commitment Fee Percentage on the daily average Unused Commitment for
the period beginning on the date of this Agreement and ending on the
Maturity Date. The Commitment Fee Percentage shall be determined as
provided in the Pricing Grid and may change for each Pricing Period.
Borrower shall pay the Commitment Fees quarterly in arrears on the last
Business Day in each calendar quarter (commencing September 30, 1997)
and on the Maturity Date (or if the Total Commitment is cancelled on a
date prior to the Maturity Date, on such prior date).
(b) Letter of Credit Fees.
(i) Letter of Credit Usage Fees. Borrower shall pay to
Agent, for the ratable benefit of the Banks as provided in clause
(v) of Subparagraph 2.09(a), nonrefundable usage fees for the
Letters of Credit (the "LC Usage Fees") equal to one percent (1%)
per annum on the daily average available amount of each Letter of
Credit for the period beginning on the date such Letter of Credit
is issued and ending on the date such Letter of Credit expires.
Borrower shall pay the LC Usage Fees quarterly in arrears on the
last Business Day in each quarter (commencing at the end of the
first calendar quarter after the issuance of the initial Letter
of Credit) and on the Maturity Date.
(ii) Letter of Credit Issuance Fees. Borrower shall pay
to Agent, for the sole benefit of Issuing Bank, nonrefundable
issuance fees for the Letters of Credit (the "LC Issuance Fees")
as agreed to between Borrower and Issuing Bank.
(iii) Other Letter of Credit Fees. In addition to the LC
Issuance Fees, Borrower shall pay to Agent, for the sole benefit
of Issuing Bank, other standard reasonable fees of Issuing Bank
for drawings under, transfers of and amendments to any Letter of
Credit and other administrative actions performed by Issuing Bank
in connection with any Letter of Credit, payable at such times
and in such amounts as are consistent with Issuing Bank's
standard fee policy at the time of such amendment or other
action.
2.05. Prepayments.
(a) Terms of all Prepayments. Upon the prepayment of any Loan
(whether such prepayment is an optional prepayment under Subparagraph
2.05(b), a mandatory prepayment required by Subparagraph 2.05(c) or a
mandatory prepayment required by any other provision of this Agreement
or the other Credit Documents, including, without limitation, a
prepayment upon acceleration), Borrower shall pay to Agent for the
benefit of the Bank Party which made such Loan (i) all accrued interest
to the date
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of such prepayment on the amount prepaid and (ii) if such prepayment is
the prepayment of a LIBOR Loan on a day other than the last day of an
Interest Period for such Loan, all amounts payable to such Bank Party
pursuant to Paragraph 2.12.
(b) Optional Prepayments. At its option, Borrower may, upon three
(3) Business Days notice to Agent for LIBOR Loans and one (1) Business
Day notice to Agent for Base Rate Loans, prepay any Borrowing in part,
in an aggregate principal amount of $100,000 or more, or in whole.
(c) Mandatory Prepayments. If, at any time, the Outstanding
Facilities Credit exceeds the Total Commitment at such time (including,
without limitation, as a result of the occurrence of a Commitment
Reduction Date), Borrower shall immediately prepay Loans in an
aggregate principal amount equal to such excess.
(d) Application of Loan Prepayments. All prepayments of the Loans
shall, to the extent possible, be first applied to prepay Base Rate
Loans and then, if any funds remain, to prepay LIBOR Loans.
2.06. Other Payment Terms.
(a) Place and Manner. Except as otherwise expressly provided
herein, Borrower shall make all payments due to each Bank Party
hereunder by payments to Agent, for the account of such Bank Party and
such Bank Party's Applicable Lending Office, by Agent debiting
Borrower's account maintained with Agent, or if no such account is
currently being maintained, at Agent's office, located at the address
specified in Paragraph 8.01, in lawful money of the United States and
in same day or immediately available funds not later than 12:00 noon on
the date due. Agent shall promptly disburse to each Bank Party each
such payment received by Agent for such Bank Party.
(b) Date. Whenever any payment due hereunder shall fall 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 be included
in the computation of interest or fees, as the case may be.
(c) Late Payments. If any amounts required to be paid by Borrower
under this Agreement or the other Credit Documents (including, without
limitation, principal or interest payable on any Loan, any fees or
other amounts) remain unpaid after such amounts are due, Borrower shall
pay interest on the aggregate, outstanding balance of such amounts from
the date due until those amounts are paid in full at a per annum rate
equal to the Base Rate plus two percent (2.00%), such rate to change
from time to time as the Base Rate shall change.
(d) Application of Payments. All payments hereunder shall be
applied first to unpaid fees, costs and expenses then due and payable
under this Agreement or the other Credit Documents, second to accrued
interest then due and payable under this
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Agreement or the other Credit Documents and finally to reduce the
principal amount of outstanding Loans.
(e) Failure to Pay Agent. Unless Agent shall have received notice
from Borrower at least one (1) Business Day prior to the date on which
any payment is due to any Bank Party hereunder that Borrower will not
make such payment in full, Agent may assume that Borrower has made such
payment in full to Agent on such date and Agent may, in reliance upon
such assumption, cause to be distributed to the appropriate Bank
Parties on such due date an amount equal to the amount then due such
Bank Parties. If and to the extent Borrower shall not have so made such
payment in full to Agent, each such Bank Party shall repay to Agent
forthwith on demand such amount distributed to such Bank Party together
with interest thereon, for each day from the date such amount is
distributed to such Bank Party until the date such Bank Party repays
such amount to Agent, at (i) the Federal Funds Rate for the first three
(3) days and (ii) the Base Rate thereafter. A certificate of Agent
submitted to any Bank Party with respect to any amounts owing by such
Bank Party under this Subparagraph 2.06(e) shall be conclusive absent
manifest error.
2.07. Notes and Interest Account.
(a) Notes. The obligation of Borrower to repay the Loans made by
each Bank and to pay interest thereon at the rates provided herein
shall be evidenced by a promissory note in the form of Exhibit D
(individually, a "Note") which note shall be (i) payable to the order
of such Bank, (ii) in the amount of such Bank's Commitment, (iii) dated
the Closing Date and (iv) otherwise appropriately completed. Borrower
authorizes each Bank to record on the schedule annexed to such Bank's
Note the date and amount of each Loan made by such Bank and of each
payment or prepayment of principal thereon made by Borrower, and agrees
that all such notations shall constitute prima facie evidence of the
matters noted; provided, however, that any failure by a Bank to make
any such notation shall not affect the Obligations. Borrower further
authorizes each Bank to attach to and make a part of such Bank's Note
continuations of the schedule attached thereto as necessary.
(b) Interest Account. Borrower authorizes Agent to record in an
account or accounts maintained by Agent on its books (the "Interest
Account") (i) the interest rates applicable to all Loans and the
effective dates of all changes thereto, (ii) the Interest Period for
each LIBOR Loan, (iii) the date and amount of each principal and
interest payment on each Loan and (iv) such other information as Agent
may determine is necessary for the computation of interest payable by
Borrower hereunder.
2.08. Loan Funding, Etc.
(a) Bank Funding and Disbursement to Borrower. Each Bank shall,
before 11:00 A.M. on the date of each Borrowing, make available to
Agent at its office specified in Paragraph 8.01, in same day or
immediately available funds, such Bank's
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Proportionate Share of such Borrowing. After Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in
Section III, Agent shall promptly disburse such funds in same day or
immediately available funds to Borrower. Unless otherwise directed by
Borrower, Agent shall disburse the proceeds of each Borrowing to
Borrower by disbursement to the account or accounts specified in the
applicable Notice of Borrowing.
(b) Bank Failure to Fund. Unless Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not
make available to Agent such Bank's Proportionate Share of such
Borrowing, Agent may assume that such Bank has made such portion
available to Agent on the date of such Borrowing in accordance with
Subparagraph 2.08(a), and Agent may, in reliance upon such assumption,
make available to Borrower (or otherwise disburse) on such date a
corresponding amount. If any Bank does not make the amount of its
Proportionate Share of any Borrowing available to Agent on or prior to
the date of such Borrowing, such Bank shall pay to Agent, on demand,
interest which shall accrue on such amount until made available to
Agent at rates equal to (i) the daily Federal Funds Rate during the
period from the date of such Borrowing through the third Business Day
thereafter and (ii) the Base Rate thereafter. A certificate of Agent
submitted to any Bank with respect to any amounts owing under this
Subparagraph 2.08(b) shall be conclusive absent manifest error. If any
Bank's Proportionate Share of any Borrowing is not in fact made
available to Agent by such Bank within three (3) Business Days after
the date of such Borrowing, Borrower shall pay to Agent, on demand, an
amount equal to such Proportionate Share together with interest
thereon, for each day from the date such amount was made available to
Borrower until the date such amount is repaid to Agent, at the interest
rate applicable at the time to the Loans comprising such Borrowing.
(c) Banks' Obligations Several. The failure of any Bank to make
the Loan to be made by it as part of any Borrowing shall not relieve
any other Bank of its obligation hereunder to make its Loan on the date
of such Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Loan to be made by such other Bank on the
date of any Borrowing.
2.09. Pro Rata Treatment.
(a) Borrowings, Commitment Reductions, Etc. Except as otherwise
provided herein:
(i) Each Borrowing, each reduction of the Total
Commitment and participations in each Letter of Credit shall be
made by or shared among the Banks pro rata according to their
respective Proportionate Shares;
(ii) Each payment of principal of Loans in any Borrowing
shall be shared among the Banks which made or funded the Loans in
such Borrowing
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pro rata according to the respective unpaid principal amounts of
such Loans so made or funded by such Banks;
(iii) Each payment of interest on Loans in any Borrowing
shall be shared among the Banks which made or funded the Loans in
such Borrowing pro rata according to (A) the respective unpaid
principal amounts of such Loans so made or funded by such Banks
and (B) the dates on which such Banks so made or funded such
Loans;
(iv) Each Reimbursement Payment and interest payable by
Borrower thereon shall be shared among the Banks (including
Issuing Bank) which made or funded the applicable Drawing Payment
pro rata according to the respective amounts of such Drawing
Payment so made or funded by such Banks;
(v) Each payment of Commitment Fees shall be shared among
the Banks pro rata according to (A) their respective
Proportionate Share and (B) in the case of each Bank which
becomes a Bank hereunder after the date hereof, the date upon
which such Bank so became a Bank;
(vi) Each payment of LC Usage Fees shall be shared among
the Banks (including Issuing Bank in its capacity as a Bank) pro
rata according to (A) their respective Proportionate Share and
(B) in the case of each Bank which becomes a Bank hereunder after
the date hereof, the date upon which such Bank so became a Bank;
(vii) Each payment of interest (other than interest on
Loans) shall be shared among the Bank Parties owed the amount
upon which such interest accrues pro rata according to (A) the
respective amounts so owed such Bank Parties and (B) the dates on
which such amounts became owing to such Bank Parties; and
(viii) All other payments under this Agreement and the
other Credit Documents shall be for the benefit of the Person or
Persons specified.
(b) Sharing of Payments, Etc. If any Bank Party shall obtain any
payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of Loans owed to it in excess
of its ratable share of payments on account of such Loans obtained by
all Banks entitled to such payments, such Bank Party shall forthwith
purchase from the other Bank Parties entitled to such payments such
participations in the Loans or Reimbursement Obligations as shall be
necessary to cause such purchasing Bank Party 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 Bank Party, such purchase shall be rescinded and each other
Bank Party shall repay to the purchasing Bank Party the purchase price
to the extent of such recovery together with an amount equal to such
other Bank Party's ratable share (according to the proportion of (i)
the amount of such
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other Bank Party's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank Party in respect of the total
amount so recovered. Borrower agrees that any Bank Party so purchasing
a participation from another Bank Party pursuant to this Subparagraph
2.09(b) may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff, but only as provided
in Paragraph 8.06) with respect to such participation as fully as if
such Bank Party were the direct creditor of Borrower in the amount of
such participation.
2.10. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first day
of any Interest Period for any LIBOR Loan, Agent shall determine that
(i) the LIBO Rate for such Interest Period cannot be adequately and
reasonably determined due to the unavailability of funds in or other
circumstances affecting the London interbank market or (ii) the rates
of interest for such LIBOR Loans do not adequately and fairly reflect
the cost to the Banks of making or maintaining such LIBOR Loans, Agent
shall immediately give notice of such condition to Borrower and the
Banks. After the giving of any such notice and until Agent shall
otherwise notify Borrower that the circumstances giving rise to such
condition no longer exist, Borrower's right to request the making of or
conversion to, and the Banks' obligations to make or convert to LIBOR
Loans shall be suspended. Any LIBOR Loans outstanding at the
commencement of any such suspension shall, unless fully repaid, be
converted at the end of the then current Interest Period for such LIBOR
Loans into Base Rate Loans unless such suspension has then ended.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule
or the application or requirements thereof (whether such change occurs
in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority,
or compliance by any Bank with any request or directive (whether or not
having the force of law) of any Governmental Authority (a "Change of
Law") shall make it unlawful or impossible for any Bank to make or
maintain any LIBOR Loan, such Bank shall immediately notify Agent and
Borrower of such Change of Law. Upon receipt of such notice, (i)
Borrower's right to request the making of or conversion to, and such
Bank's obligation to make or convert to, LIBOR Loans shall be
terminated, and (ii) Borrower shall, at the request of such Bank,
either (A) pursuant to Subparagraph 2.01(d), convert any such then
outstanding LIBOR Loans of such Bank into Base Rate Loans at the end of
the current Interest Period for such LIBOR Loans, or (B) immediately
repay or convert any such LIBOR Loans if such Bank shall notify
Borrower that such Bank may not lawfully continue to fund and maintain
such LIBOR Loans. Any conversion or prepayment of LIBOR Loans made
pursuant to the preceding sentence prior to the last day of an Interest
Period for such LIBOR Loans shall be deemed a prepayment thereof for
purposes of Paragraph 2.12. After any Bank notifies Agent and Borrower
of such a Change of
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Law and until such Bank notifies Agent and Borrower that it is no
longer unlawful or impossible for such Bank to make or maintain any
LIBOR Loan, all Loans of such Bank shall be Base Rate Loans.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject any Bank to any tax, duty or other
charge with respect to any LIBOR Loan, or shall change the basis
of taxation of payments by Borrower to any Bank on such a LIBOR
Loan or in respect to such a LIBOR Loan under this Agreement
(except for changes in the rate of taxation on the overall net
income of any Bank imposed by its jurisdiction of incorporation
or the jurisdiction in which its principal executive office is
located); or
(ii) Shall impose, modify or hold applicable any reserve
(excluding any Reserve Requirement or other reserve to the extent
included in the calculation of the LIBO Rate for any LIBOR
Loans), special deposit or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances or loans by, or any other acquisition of funds by any
Bank for any LIBOR Loan; or
(iii) Shall impose on any Bank any other condition
related to any LIBOR Loan or such Bank's Commitments;
And the effect of any of the foregoing is to increase the cost to such
Bank of making, renewing, or maintaining any such LIBOR Loan or such
Bank's Commitments or to reduce any amount receivable by such Bank
hereunder, then Borrower shall from time to time, within five (5) days
after demand by such Bank, pay to such Bank additional amounts
sufficient to reimburse such Bank for such increased costs or to
compensate such Bank for such reduced amounts. A certificate as to the
amount of such increased costs or reduced amounts submitted by such
Bank to Borrower shall, in the absence of manifest error, be conclusive
and binding on Borrower for all purposes. The obligations of Borrower
under this Subparagraph 2.10(c) shall survive the payment and
performance of the Obligations and the termination of this Agreement.
(d) Capital Requirements. If, after the date of this Agreement,
any Bank Party determines that (i) any Change of Law affects the amount
of capital required or expected to be maintained by such Bank Party or
any Person controlling such Bank Party (a "Capital Adequacy
Requirement") and (ii) the amount of capital maintained by such Bank
Party or such Person which is attributable to or based upon the Loans,
the Letters of Credit, the Commitments or this Agreement must be
increased as a result of such Capital Adequacy Requirement (taking into
account such Bank Party's or such Person's policies with respect to
capital adequacy), Borrower shall pay to such Bank Party or such
Person, within five (5) days after demand of such Bank Party, such +
amounts as such Bank Party or such Person shall determine are necessary
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to compensate such Bank Party or such Person for the increased costs to
such Bank Party or such Person of such increased capital. A certificate
of any Bank Party setting forth in reasonable detail the computation of
any such increased costs delivered by such Bank Party to Borrower
shall, in the absence of manifest error, be conclusive and binding on
Borrower for all purposes. The obligations of Borrower under this
Subparagraph 2.10(d) shall survive the payment and performance of the
Obligations and the termination of this Agreement.
2.11. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Borrower under
this Agreement and the other Credit Documents shall be made free and
clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental
Authority (except net income taxes and franchise taxes in lieu of net
income taxes imposed on any Agent or Bank Party by its jurisdiction of
incorporation or the jurisdiction in which its Applicable Lending
Office is located) (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions and withholdings being hereinafter
called "Taxes"). If any Taxes are required to be withheld from any
amounts payable to any Agent or any Bank Party hereunder or under the
other Credit Documents, the amounts so payable to Agent or such Bank
Party shall be increased to the extent necessary to yield to Agent or
such Bank Party (after payment of all Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in
this Agreement and the other Credit Documents. Whenever any Taxes are
payable by Borrower, as promptly as possible thereafter, Borrower shall
send to Agent for its own account or for the account of such Bank
Party, as the case may be, a certified copy of an original official
receipt received by Borrower showing payment thereof. If Borrower fails
to pay any Taxes when due to the appropriate taxing authority or fails
to remit to Agent the required receipts or other required documentary
evidence, Borrower shall indemnify Agent and the Bank Parties for any
incremental taxes, interest or penalties that may become payable by
Agent or any Bank Party as a result of any such failure. The
obligations of Borrower under this Subparagraph 2.11(a) shall survive
the payment and performance of the Obligations and the termination of
this Agreement.
(b) Withholding Exemption Certificates. On or prior to the
Closing Date, each Bank which is not incorporated under the laws of the
United States of America or a state thereof shall deliver to Borrower
and Agent either two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 (or successor applicable form), as
the case may be, certifying in each case that such Bank is entitled to
receive payments under this Agreement without deduction or withholding
of any United States federal taxes. Each Bank which delivers to
Borrower and Agent a Form 1001 or 4224 pursuant to the immediately
preceding sentence further undertakes to deliver to Borrower and Agent
two further copies of Form 1001 or 4224, or successor applicable forms,
or other manner of certification or procedure, as the case
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may be, on or before the date that any such letter or form expires or
becomes obsolete or after the occurrence of any event requiring a
change in the most recent letter and form previously delivered by it to
Borrower and Agent, and such extensions or renewals thereof as may
reasonably be requested by Borrower or Agent, certifying in the case of
a Form 1001 or 4224 that such Bank is entitled to receive payments
under this Agreement without deduction or withholding of any United
States federal taxes, unless in any such cases an event (including
without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise
be required which renders all such forms inapplicable or which would
prevent a Bank from duly completing and delivering any such letter or
form with respect to it and such Bank advises Borrower and Agent that
it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
2.12. Funding Loss Indemnification. If Borrower shall (a) repay, prepay or
convert any LIBOR Loan on any day other than the last day of an Interest Period
therefor (whether a scheduled payment, an optional prepayment or conversion, a
mandatory prepayment or conversion, a payment upon acceleration or otherwise),
(b) fail to borrow any LIBOR Loan for which a Notice of Borrowing has been
delivered to Agent (whether as a result of the failure to satisfy any applicable
conditions or otherwise) or (c) fail to convert any Loans into LIBOR Loans in
accordance with a Notice of Conversion delivered to Agent (whether as a result
of the failure to satisfy any applicable conditions or otherwise), Borrower
shall, upon demand by any Bank, reimburse such Bank for and hold such Bank
harmless from all costs and losses incurred by such Bank as a result of such
repayment, prepayment or failure. Borrower understands that such costs and
losses may include, without limitation, losses incurred by a Bank as a result of
funding and other contracts entered into by such Bank to a fund a LIBOR Loan.
Each Bank demanding payment under this Paragraph 2.12 shall deliver to Borrower,
with a copy to Agent, a certificate setting forth the amount of costs and losses
for which demand is made, which certificate shall set forth in reasonable detail
the calculation of the amount demanded. Such a certificate so delivered to
Borrower shall constitute prima facie evidence of such costs and losses. The
obligations of Borrower under this Paragraph 2.12 shall survive the payment and
performance of the Obligations and the termination of this Agreement.
2.13. Security.
(a) Security Agreements, Guaranties, Etc. The Obligations shall
be secured by the following:
(i) A Security Agreement in the form of Exhibit E-1, duly
executed by Borrower (the "Borrower Security Agreement");
(ii) A Security Agreement in the form of Exhibit E-2,
duly executed by TSW (the "TSW Security Agreement");
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(iii) A Guaranty in the form of Exhibit F-1, duly
executed by Parent (the "Indus Guaranty"); and
(iv) A Guaranty in the form of Exhibit F-2, duly executed
by TSW (the "TSW Guaranty").
provided, however, that if during any fiscal quarter after the First
Commitment Reduction Date, Parent maintains a Leverage Ratio of less
than 0.65/1.00, the security interests of Agent and the Bank Parties
created pursuant to the Security Agreement and the TSW Security
Agreement shall be released and discharged and shall not be reinstated.
(b) Further Assurances. At all times while the security interest
created pursuant to the Borrower Security Agreement and the TSW
Security Agreement are in place, Borrower shall deliver, and shall
cause TSW and Parent to deliver, to Agent such additional security
agreements, guaranties and other instruments, agreements, certificates,
opinions and documents (including Uniform Commercial Code financing
statements) as Agent may reasonably request to:
(i) Grant, perfect, maintain, protect and evidence
security interests in favor of Agent, for the benefit of Agent
and the Bank Parties, in and to the Collateral prior to the Liens
or other interests of any Person, except for Permitted Liens; and
(ii) Otherwise establish, maintain, protect and evidence
the rights provided to Agent, for the benefit of Agents and the
Banks, pursuant to the Security Documents.
Borrower shall fully cooperate with Agent and the Bank Parties and
perform all additional acts reasonably requested by Agent or any Bank
to effect the purposes of this Paragraph 2.13.
SECTION III. CONDITIONS PRECEDENT.
3.01. Initial Conditions Precedent. The obligations of the Bank Parties to
make the Loans comprising the initial Borrowing or of Issuing Bank to issue the
initial Letter of Credit are subject to receipt by Agent, on or prior to the
Closing Date, of each item listed in Schedule 3.01, each in form and substance
reasonably satisfactory to the Banks, and with sufficient copies for, Agent and
each Bank.
3.02. Conditions Precedent to Each Credit Event. The occurrence of each
Credit Event (including the initial Borrowing and the initial Letter of Credit)
is subject to the further conditions that:
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(a) Borrower shall have delivered to Agent (and Issuing Bank, in
the case of an LC Application) the Notice of Borrowing, Notice of
Conversion or Notice of Interest Period Selection, as the case may be,
for such Credit Event in accordance with this Agreement;
(b) On the date such Credit Event is to occur and after giving
effect to such Credit Event, the following shall be true and correct:
(i) The representations and warranties of Parent and its
Subsidiaries (including Borrower) set forth in Paragraph 4.01 and
of Parent and its Subsidiaries in the other Credit Documents are
true and correct in all material respects as if made on such date
(except for representations and warranties expressly made as of a
specified date, which shall be true as of such date); and
(ii) No Default or Event of Default has occurred and is
continuing or will result from such Credit Event; and
(c) On the date such Credit Event is to occur and after giving
effect to such Credit Event, all of the Credit Documents are in full
force and effect.
The submission by Borrower to Agent of each Notice of Borrowing, each Notice of
Conversion (other than a notice for a conversion to a Base Rate Loan), each
Notice of Interest Period Selection and each LC Application shall be deemed to
be a representation and warranty by Borrower as of the date thereon as to the
above.
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.01. Parent's Representations and Warranties. In order to induce Agent and
the Bank Parties to enter into this Agreement, Parent on behalf of Borrower
hereby represents and warranties to Agent and the Bank Parties as follows:
(a) Due Incorporation, Qualification, etc. Each of Parent and its
Subsidiaries (including Borrower) (i) is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation; (ii) has the power and authority to own,
lease and operate its properties and carry on its business as now
conducted; and (iii) is duly qualified, licensed to do business and in
good standing as a foreign corporation in each jurisdiction where the
failure to be so qualified or licensed is reasonably likely to have a
Material Adverse Effect.
(b) Authority. The execution, delivery and performance by Parent
and its Subsidiaries (including Borrower) of each Credit Document
executed, or to be executed, by such Person and the consummation of the
transactions contemplated thereby (i) are within the corporate power of
such Person and (ii) have been duly authorized by all necessary
corporate actions on the part of such Person.
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(c) Enforceability. Each Credit Document executed, or to be
executed, by Parent or any of its Subsidiaries (including Borrower) has
been, or will be, duly executed and delivered by such Person and
constitutes, or will constitute, a legal, valid and binding obligation
of such Person, enforceable against such Person in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of
creditors' rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by Parent and
its Subsidiaries (including Borrower) of the Credit Documents and the
performance and consummation of the transactions contemplated thereby
do not (i) violate any Requirement of Law applicable to such Person;
(ii) violate any provision of, or result in the breach or the
acceleration of, or entitle any other Person to accelerate (whether
after the giving of notice or lapse of time or both), any Contractual
Obligations of Borrower; or (iii) result in the creation or imposition
of any Lien (or the obligation to create or impose any Lien) upon any
property, asset or revenue of such Person (except such Liens as may be
created in favor of Agent pursuant to this Agreement or the other
Credit Documents).
(e) Approvals. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Authority
or other Person (including the shareholders of any Person) is required
in connection with the execution and delivery of the Credit Documents
executed by Parent or any of its Subsidiaries (including Borrower) or
the performance and consummation of the transactions contemplated
thereby, except such as have been made or obtained and are in full
force and effect.
(f) No Violation or Default. Neither Parent nor any of its
Subsidiaries (including Borrower) is in violation of or in default with
respect to (i) any Requirement of Law applicable to such Person or (ii)
any Contractual Obligation of such Person, where, in each case, such
violation or default is reasonably likely to have a Material Adverse
Effect. Without limiting the generality of the foregoing, neither
Parent nor any of its Subsidiaries (A) is in violation of any
environmental laws, (B) has any liability or potential liability under
any environmental laws or (C) has received notice or other
communication of an investigation or is under investigation by any
Governmental Authority having authority to enforce environmental laws,
where, in each case, such violation, liability or investigation could
reasonably be expected to have a Material Adverse Effect. No Event of
Default or Default has occurred and is continuing.
(g) Litigation. Except as set forth in the Schedule 4.01(g) (with
estimates of the dollar amounts involved), no actions (including,
without limitation, derivative actions), suits, proceedings or
investigations are pending or, to the knowledge of Borrower, threatened
against Parent or any of its Subsidiaries (including Borrower) at law
or in equity in any court or before any other Governmental Authority
which (i) is reasonably likely (alone or in the aggregate) to have a
Material Adverse Effect or
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(ii) seeks to enjoin, either directly or indirectly, the execution,
delivery or performance of the Credit Documents or the transactions
contemplated thereby.
(h) Title; Possession Under Leases. Parent and its Subsidiaries
(including Borrower) own and have good and marketable title, or a valid
leasehold interest in, all their respective properties and assets as
reflected in the most recent Financial Statements delivered to Agent
(except those assets and properties disposed of in the ordinary course
of business or otherwise in compliance with this Agreement since the
date of such Financial Statements) and all respective assets and
properties acquired by Borrower and its Subsidiaries since such date
(except those disposed of in the ordinary course of business or
otherwise in compliance with this Agreement). Such assets and
properties are subject to no Lien, except for Permitted Liens. Each of
Parent and its Subsidiaries (including Borrower) has complied with all
material obligations under all material leases to which it is a party
and all such leases are in full force and effect. Each of Parent and
its Subsidiaries (including Borrower) enjoys peaceful and undisturbed
possession under such leases.
(i) Financial Statements. The Financial Statements of Parent and
its Subsidiaries (including Borrower) which have been delivered to
Agent in connection with this Agreement, (i) are in accordance with the
books and records of Parent, which have been maintained in accordance
with good business practice; (ii) have been prepared in conformity with
GAAP; and (iii) fairly present the financial condition and results of
operations of Parent and its Subsidiaries (including Borrower) as of
the date thereof and for the periods covered thereby. As of the date of
each of the Financial Statements of Parent and its Subsidiaries
(including Borrower) delivered pursuant to Paragraph 3.01 or clause (i)
or (ii) of Subparagraph 5.01(a), neither Parent nor any of its
Subsidiaries (including Borrower) has any contingent obligations,
liability for taxes or other outstanding obligations which are
reasonably likely, in the aggregate, to have a Material Adverse Effect,
except as disclosed in such Financial Statements.
(j) No Agreements to Sell Assets; Etc. As of the Closing Date,
neither Parent nor any of its Subsidiaries (including Borrower) has any
legal obligation, absolute or contingent, to any Person to sell all or
any material part of the assets of Parent or any of its Subsidiaries
(including Borrower) (other than sales in the ordinary course of
business), or to effect any merger, consolidation or other
reorganization of Parent or any of its Subsidiaries (including
Borrower) or to enter into any agreement with respect thereto.
(k) Employee Benefit Plans.
(i) Based on the latest valuation of each Employee
Benefit Plan that either Parent or any ERISA Affiliate maintains
or contributes to, or has any obligation under (which occurred
within twelve months of the date of this representation), the
aggregate benefit liabilities of such plan within the meaning of
ss. 4001 of ERISA did not exceed the aggregate value of the
assets of such plan. Neither Parent nor any ERISA Affiliate has
any liability with
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respect to any post-retirement benefit under any Employee Benefit
Plan which is a welfare plan (as defined in section 3(1) of
ERISA), other than liability for health plan continuation
coverage described in Part 6 of Title I(B) of ERISA, which
liability for health plan contribution coverage is not reasonably
likely to have a Material Adverse Effect.
(ii) Each Employee Benefit Plan complies, in both form
and operation, in all material respects, with its terms, ERISA
and the Code, and no condition exists or event has occurred with
respect to any such plan which would result in the incurrence by
either Parent or any ERISA Affiliate of any material liability,
fine or penalty. Each Employee Benefit Plan, related trust
agreement, arrangement and commitment of Parent or any ERISA
Affiliate is legally valid and binding and in full force and
effect. No Employee Benefit Plan is being audited or investigated
by any government agency or is subject to any pending or
threatened claim or suit. Neither Parent nor any ERISA Affiliate
nor any fiduciary of any Employee Benefit Plan has engaged in a
prohibited transaction under section 406 of ERISA or section 4975
of the Code.
(iii) Neither Parent nor any ERISA Affiliate has any
material contingent obligations to any Multiemployer Plan.
Neither Parent nor any ERISA Affiliate has incurred any material
liability (including secondary liability) to any Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan under Section 4201 of ERISA or as a result of
a sale of assets described in Section 4204 of ERISA. Neither
Parent nor any ERISA Affiliate has been notified that any
Multiemployer Plan is in reorganization or insolvent under and
within the meaning of Section 4241 or Section 4245 of ERISA or
that any Multiemployer Plan intends to terminate or has been
terminated under Section 4041A of ERISA.
(l) Other Regulations. Neither Parent nor any of its Subsidiaries
(including Borrower) is subject to regulation under the Investment
Company Act of 1940, the Public Utility Holding Company Act of 1935,
the Federal Power Act, any state public utilities code or to any other
Governmental Rule limiting its ability to incur indebtedness.
(m) Patent and Other Rights. Parent and its Subsidiaries
(including Borrower) own or license under validly existing agreements,
and have the full right to license without the consent of any other
Person, all patents, licenses, trademarks, trade names, trade secrets,
service marks, copyrights and all rights with respect thereto, which
are material to conduct the businesses of Parent and its Subsidiaries
(including Borrower) (taken as a whole) as now conducted.
(n) Governmental Charges. Parent and its Subsidiaries (including
Borrower) have filed or caused to be filed all material tax returns
which are required by law to be filed by them. Parent and its
Subsidiaries (including Borrower) have
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paid, or made provision for the payment of, all taxes and other
Governmental Charges which have or may have become due pursuant to said
returns or otherwise, except such Governmental Charges, if any, which
are being contested in good faith and as to which adequate reserves
(determined in accordance with GAAP) have been provided or which are
not reasonably likely to have a Material Adverse Effect if unpaid.
(o) Margin Stock. Neither Parent nor any of its Subsidiaries
(including Borrower) owns Margin Stock which, in the aggregate, would
constitute a substantial part of the assets of such Person, and no
proceeds of any Loan and no Letter of Credit will be used to purchase
or carry, directly or indirectly, any Margin Stock or to extend credit,
directly or indirectly, to any Person for the purpose of purchasing or
carrying any Margin Stock.
(p) Subsidiaries, etc. Set forth in Schedule 4.01(p) (as
immediately supplemented by Borrower on behalf of Parent on or
immediately prior to any change thereto) is a complete list of all of
Parent's Subsidiaries (including Borrower) and all of Borrower's
Subsidiaries, the jurisdiction of incorporation of each, the asset
value of each and the percentage of Parent's or Borrower's consolidated
total assets represented by each. Except for such Subsidiaries, neither
Parent nor Borrower has any Subsidiaries, is not a partner in any
partnership or a joint venturer in any joint venture.
(q) Capital Stock. The authorized capital stock of Borrower
consists of 50,000,000 shares of common stock of which 19,198,302
shares are duly issued and outstanding as of August 25, 1997. Parent
owns all issued and outstanding shares of such common stock. All
outstanding capital stock is duly authorized, validly issued, fully
paid and non-assessable. There are no outstanding subscriptions,
options, conversion rights, warrants or other agreements or commitments
of any nature whatsoever (firm or conditional) obligating Borrower to
issue, deliver or sell, or cause to be issued, delivered or sold, any
additional capital stock of Borrower, or obligating Borrower to grant,
extend or enter into any such agreement or commitment.
(r) Solvency, Etc. Parent and each of its Subsidiaries (including
Borrower) is Solvent and, after the execution and delivery of the
Credit Documents and the consummation of the transactions contemplated
thereby, will be Solvent.
(s) Catastrophic Events. Neither Parent nor any of its
Subsidiaries (including Borrower) and none of their properties is or
has been affected by any fire, explosion, strike, lockout or other
labor dispute, earthquake, embargo or other casualty that is reasonably
likely to have a Material Adverse Effect. As of the Closing Date, there
are no disputes presently subject to grievance procedure, arbitration
or litigation under any of the collective bargaining agreements,
employment contracts or employee welfare or incentive plans to which
Parent or any of its Subsidiaries (including Borrower) is a party, and
there are no strikes, lockouts,
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work stoppages or slowdowns, or, to the best knowledge of Parent,
jurisdictional disputes or organizing activities occurring or
threatened which alone or in the aggregate are reasonably likely to
have a Material Adverse Effect.
(t) No Material Adverse Effect. No event has occurred and no
condition exists which could reasonably be expected to have a Material
Adverse Effect.
(u) Accuracy of Information Furnished. None of the Credit
Documents and none of the other certificates, statements or information
furnished to Bank Party by or on behalf of Parent, Borrower or any of
their Subsidiaries in connection with the Credit Documents or the
transactions contemplated thereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.02. Reaffirmation. Parent shall be deemed to have reaffirmed, for the
benefit of Agent and the Bank Parties, each representation and warranty
contained in Paragraph 4.01 on and as of the date of each Credit Event (except
for representations and warranties expressly made as of a specified date, which
shall be true as of such date).
SECTION V. COVENANTS.
5.01. Affirmative Covenants. Until the termination of this Agreement and
the satisfaction in full by Borrower of all Obligations, Borrower or Parent on
behalf of Borrower (as applicable) will comply, and will cause compliance, with
the following affirmative covenants, unless Required Banks shall otherwise
consent in writing:
(a) Financial Statements, Reports, etc. Borrower shall furnish to
Agent (and Agent shall promptly thereupon furnish to each Bank) the
following, each in such form and such detail as Agent or the Required
Banks shall reasonably request:
(i) As soon as available and in no event later than
forty-five (45) days after the last day of each quarter, a copy
of the Financial Statements of Parent, Borrower and TSW (prepared
on a consolidated and consolidating basis) for such month and for
the fiscal year to date, certified by the Chief Financial Officer
of Parent to present fairly the financial condition, results of
operations and other information reflected therein and to have
been prepared in accordance with GAAP (subject to normal year-end
audit adjustments);
(ii) At all times during which the Obligations of
Borrower are secured by the Collateral pledged pursuant to the
Security Agreement, as soon as available and in no event later
than thirty (30) days after the last day of each month, a summary
aging of Parent's and its Subsidiaries' consolidated accounts
receivable as of the most recent month end, certified by the Vice
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President Finance of Parent to present fairly the aging of such
accounts receivable reflected therein;
(iii) As soon as available and in no event later than one
hundred twenty (120) days after the close of each fiscal year of
Parent, (A) copies of the audited Financial Statements of Parent
and its Subsidiaries (prepared on a consolidated and
consolidating basis) for such year, prepared by independent
certified public accountants of recognized national standing
acceptable to Agent, (B) copies of the unqualified opinions (or
qualified opinions reasonably acceptable to Agent) and management
letters delivered by such accountants in connection with all such
Financial Statements and (C) certificates of such accountants to
Agent stating that in making the examination necessary for their
opinion they have reviewed this Agreement and have obtained no
knowledge of any Default which has occurred and is continuing, or
if, in the opinion of such accountants, a Default has occurred
and is continuing, a statement as to the nature thereof;
(iv) Contemporaneously with the quarterly and year-end
Financial Statements required by the foregoing clauses (ii) and
(iii), a certificate of an executive officer of Parent and
Borrower in the form of Exhibit G, appropriately completed,
together with such financial computations as Agent may reasonably
request to determine compliance with the terms of this Agreement
(a "Compliance Certificate");
(v) As soon as possible and in no event later than five
(5) Business Days after any officer of Parent or Borrower knows
of the occurrence or existence of (A) any Reportable Event under
any Employee Benefit Plan or Multiemployer Plan; (B) any actual
or threatened litigation, suits, claims or disputes against
Parent or any of its Subsidiaries (including Borrower) involving
potential monetary damages payable by Parent or its Subsidiaries
(including Borrower) of $1,000,000 or more (alone or in the
aggregate); (C) any other event or condition which is reasonably
likely to have a Material Adverse Effect; or (D) any Default; the
statement of the president or chief financial officer of Parent
or Borrower setting forth details of such event, condition or
Default and the action which Parent or Borrower proposes to take
with respect thereto;
(vi) If requested, copies of Parent's and its
Subsidiaries' (including Borrower's) federal income tax returns,
and if requested by Agent, copies of any extensions with respect
to the filing thereof; and
(vii) Such other certificates, opinions, statements,
documents and information relating to the operations or condition
(financial or otherwise) of Parent or any of its Subsidiaries
(including Borrower), and compliance by Borrower with the terms
of this Agreement and the other Credit Documents as any Bank
Party through Agent may from time to time reasonably request.
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(b) Books and Records. Parent and its Subsidiaries (including
Borrower) shall at all times keep proper books of record and account in
which full, true and correct entries will be made of their transactions
in accordance with GAAP.
(c) Inspections. Parent and its Subsidiaries (including Borrower)
shall permit any Person designated by any Bank Party, upon reasonable
notice and during normal business hours, to visit and inspect any of
the properties and offices of Parent and its Subsidiaries (including
Borrower), to conduct audits of any or all of the Collateral at
Borrower's expense, to examine the books and records of Parent and its
Subsidiaries (including Borrower) and make copies thereof and to
discuss the affairs, finances and business of Parent and its
Subsidiaries (including Borrower) with, and to be advised as to the
same by, their officers, auditors and accountants, all at such times
and intervals as any Bank may reasonably request.
(d) Insurance. Parent and its Subsidiaries (including Borrower)
shall:
(i) Carry and maintain insurance of the types and in the
amounts customarily carried from time to time during the term of
this Agreement by others engaged in substantially the same
business as such Person and operating in the same geographic area
as such Person, including, but not limited to, fire, public
liability, property damage and worker's compensation;
(ii) Carry and maintain each policy for such insurance
with (A) a company which is rated A or better by A.M. Best and
Company at the time such policy is placed and at the time of each
annual renewal thereof or (B) any other insurer which is
reasonably satisfactory to Agent; and
(iii) Deliver to Agent from time to time, as Agent may
request, schedules setting forth all insurance then in effect.
(e) Governmental Charges. Parent and its Subsidiaries (including
Borrower) shall promptly pay and discharge when due (i) all taxes and
other Governmental Charges prior to the date upon which penalties
accrue thereon, (ii) all indebtedness which, if unpaid, could become a
Lien upon the property of Parent or its Subsidiaries (including
Borrower) and (iii) subject to any subordination provisions applicable
thereto, all other Indebtedness which, if unpaid, is reasonably likely
to have a Material Adverse Effect.
(f) Use of Proceeds. Borrower shall use the proceeds of the Loans
and the Letters of Credit only for the respective purposes set forth in
Subparagraph 2.01(g) and Subparagraph 2.02(g). Borrower shall not use
any part of the proceeds of any Loan or any Letter of Credit, directly
or indirectly, for the purpose of purchasing or carrying any Margin
Stock or for the purpose of purchasing or carrying or trading in any
securities under such circumstances as to involve Borrower, any Bank
Party or Agent in a violation of Regulations G, T, U or X issued by the
Federal Reserve Board.
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(g) General Business Operations. Each of Parent and its
Subsidiaries (including Borrower) shall (i) preserve and maintain its
corporate existence and all of its rights, privileges and franchises
reasonably necessary to the conduct of its business, (ii) conduct its
business activities in compliance with all Requirements of Law and
Contractual Obligations applicable to such Person, the violation of
which is reasonably likely to have a Material Adverse Effect, (iii)
keep all property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted, and (iv) pay and
perform all Contractual Obligations as and when due (except to the
extent disputed in good faith by Parent or the appropriate Subsidiary
and where non-payment would not be reasonably expected to have a
Material Adverse Effect). Borrower shall maintain its chief executive
office and principal place of business in the United States and shall
not relocate its chief executive office or principal place of business
outside of California except upon not less than ninety (90) days prior
written notice to Agent.
5.02. Negative Covenants. Until the termination of this Agreement and the
satisfaction in full by Borrower of all Obligations, Parent on behalf of
Borrower will comply, and will cause compliance, with the following negative
covenants, unless Required Banks shall otherwise consent in writing:
(a) Indebtedness. On a consolidated basis, neither Parent nor any
of its Subsidiaries (including Borrower) shall create, incur, assume or
permit to exist any Indebtedness or any Guaranty Obligations except for
the following ("Permitted Indebtedness"):
(i) The Obligations of Borrower under the Credit
Documents;
(ii) Indebtedness listed in Schedule 5.02(a) existing on
the date of this Agreement, but specifically excluding the
Indebtedness of TSW to Greyrock;
(iii) Indebtedness of Parent and its Subsidiaries
(including Borrower) under purchase money loans and Capital
Leases incurred by Parent or any of its Subsidiaries (including
Borrower) to finance the acquisition by such Person of real
property, fixtures, equipment or other fixed assets provided that
in each case, (A) such Indebtedness is incurred by such Person at
the time of, or not later than ninety (90) days after, the
acquisition by such Person of the property so financed, (B) such
Indebtedness does not exceed the purchase price of the property
so financed and (C) the aggregate principal amount of any such
Indebtedness does not exceed $4,000,000 at any time;
(iv) Indebtedness arising from the endorsement of
instruments for collection in the ordinary course of Parent's or
a Subsidiary's (including Borrower's) business;
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(v) Indebtedness of Parent and its Subsidiaries
(including Borrower) with respect to surety, appeal, indemnity,
performance or other similar bonds in the ordinary course of
business;
(vi) Indebtedness of Parent and its Subsidiaries
(including Borrower) under initial or successive refinancings of
any Indebtedness permitted by clause (ii) or (iii) above,
provided that (A) the principal amount of any such refinancing
does not exceed the principal amount of the Indebtedness being
refinanced and (B) the material terms and provisions of any such
refinancing (including maturity, redemption, prepayment, default
and subordination provisions) are no less favorable to the Banks
than the Indebtedness being refinanced;
(vii) Indebtedness of Parent and its Subsidiaries
(including Borrower) for trade accounts payable, provided that
(A) such accounts arise in the ordinary course of business and
(B) no material part of such account is more than ninety (90)
days past due (unless subject to a bona fide dispute and for
which adequate reserves have been established);
(viii) Guaranty Obligations of Parent and its
Subsidiaries (including Borrower) in respect of other Permitted
Indebtedness;
(ix) Indebtedness of Parent to any of its Subsidiaries
(including Borrower), Indebtedness of any of its Subsidiaries to
Borrower or Parent or Indebtedness of any of its Subsidiaries to
any of its other Subsidiaries; and
(x) Other Indebtedness of Parent and its Subsidiaries
(including Borrower), provided that the aggregate principal
amount of all such other Indebtedness does not exceed $1,000,000
at any time.
(b) Liens. Neither Parent nor any of its Subsidiaries (including
Borrower) shall create, incur, assume or permit to exist any Lien on or
with respect to any of its assets or property of any character, whether
now owned or hereafter acquired, except for the following ("Permitted
Liens"):
(i) Liens in favor of Agent or any Bank securing the
Obligations;
(ii) Liens listed in Schedule 5.02(b) existing on the
date of this Agreement;
(iii) Liens for taxes or other Governmental Charges not
at the time delinquent or thereafter payable without penalty or
being contested in good faith, provided that adequate reserves
for the payment thereof have been established in accordance with
GAAP;
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(iv) Liens of carriers, warehousemen, mechanics,
materialmen, vendors, and landlords and other similar Liens
imposed by law incurred in the ordinary course of business for
sums (A) not overdue or (B) being contested in good faith
provided that adequate reserves for the payment thereof have been
established in accordance with GAAP;
(v) Deposits under workers' compensation, unemployment
insurance and social security laws or to secure the performance
of bids, tenders, contracts (other than for the repayment of
borrowed money) or leases, or to secure statutory obligations of
surety or appeal bonds or to secure indemnity, performance or
other similar bonds in the ordinary course of business;
(vi) Zoning restrictions, easements, rights-of-way, title
irregularities and other similar encumbrances, which alone or in
the aggregate are not substantial in amount and do not materially
detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of Parent or
any of its Subsidiaries (including Borrower);
(vii) Liens securing Indebtedness which constitutes
Permitted Indebtedness under clause (iii) and (x) of Subparagraph
5.02(a) provided that, in each case, such Lien (A) covers only
those assets, the acquisition of which was financed by such
Permitted Indebtedness, and (B) secures only such Permitted
Indebtedness;
(viii) Banker's Liens and similar Liens (including
set-off rights) in respect of bank deposits;
(ix) Liens incurred in connection with the extension,
renewal or refinancing of the Indebtedness secured by the Liens
described in clause (ii) or (vii) above, provided that any
extension, renewal or replacement Lien (A) is limited to the
property covered by the existing Lien and (B) secures
Indebtedness which is no greater in amount and has material terms
no less favorable to the Banks than the Indebtedness secured by
the existing Lien; and
(x) Liens on property or assets of any corporation which
becomes a Subsidiary of Parent (including Borrower) after the
date of this Agreement, provided that (A) such Liens exist at the
time the stock of such corporation is acquired by Parent or any
of its Subsidiaries (including Borrower) and (B) such Liens were
not created in contemplation of such acquisition;
(xi) Judgement Liens, provided that such Liens do not
have a value in excess of $2,000,000 or such Liens are released,
stayed, vacated or otherwise dismissed within ten (10) days after
issue or levy and, if so stayed, such stay is not thereafter
removed;
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(xii) Rights of vendors or lessors under conditional sale
agreements, Capital Leases or other title retention agreements,
provided that, in each case, (A) such rights secure or otherwise
relate to Permitted Indebtedness, (B) such rights do not extend
to any property other than property acquired with the proceeds of
such Permitted Indebtedness and (C) such rights do not secure any
Indebtedness other than such Permitted Indebtedness;
(xiii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties
and in connection with the importation of goods in the ordinary
course of Parent's and its Subsidiaries' (including Borrower's)
businesses; and
(xiv) Liens on insurance proceeds in favor of insurance
companies with respect to the financing of insurance premiums.
(c) Asset Dispositions. Neither Parent nor any of its
Subsidiaries (including Borrower) shall sell, lease, transfer or
otherwise dispose of all or any of its assets or property, whether now
owned or hereafter acquired, except for the following:
(i) Sales of inventory by Parent and its Subsidiaries
(including Borrower) in the ordinary course of their businesses;
(ii) Sales of surplus, damaged, worn or obsolete assets
or properties for not less than fair market value;
(iii) Sales or other dispositions of Investments
permitted by Subparagraph 5.02(e) for not less than fair market
value;
(iv) Sales or assignments of defaulted receivables to a
collection agency in the ordinary course of business; and
(v) Other sales, leases, transfers and disposals of
assets and property, provided that the aggregate value of all
such assets and property (based upon the greater of the fair
market or book value of such assets and property) so sold,
leased, transferred or otherwise disposed of in any fiscal year
does not exceed $2,000,000 per year.
(d) Mergers, Acquisitions, Etc. Neither Parent nor any of its
Subsidiaries (including Borrower) shall consolidate with or merge into
any other Person or permit any other Person to merge into it, establish
any new Subsidiary, acquire any Person as a new Subsidiary or acquire
all or substantially all of the assets of any other Person, except
that:
(i) Any wholly-owned Subsidiary of Parent may merge into
any other wholly-owned Subsidiary of Parent;
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(ii) Parent or any wholly-owned Subsidiary of Parent may
merge into or consolidate with any other Person, provided that
(A) Parent or any wholly-owned Subsidiary of Parent is the
surviving corporation, (B) the aggregate consideration paid in
connection with any such merger or acquisition does not exceed
$5,000,000, of which no more than $2,000,000 may consist of cash
and/or assumed Indebtedness and (C) the aggregate consideration
paid in connection with all such mergers in any calendar year
does not exceed $10,000,000, of which no more than $5,000,000 may
consist of cash and/or assumed Indebtedness; and
(iii) Parent or any wholly-owned Subsidiary of Parent
(including Borrower) may merge into or consolidate with any other
Person with the prior written consent of the Required Banks.
(e) Investments. Neither Parent nor any of its Subsidiaries
(including Borrower) shall make any Investment except for Investments
of Parent in an aggregate amount of up to $2,000,000 outstanding at any
time in the following:
(i) Investments of Parent and its Subsidiaries (including
Borrower) in Cash Equivalents;
(ii) Any transaction permitted by Subparagraph 5.02(a);
(iii) Money market mutual funds registered with the
Securities and Exchange Commission, meeting the requirements of
Rule 2a-7 promulgated under the Investment Company Act of 1940;
(iv) Investments listed in Schedule 5.02(e) existing on
the date of this Agreement;
(v) Investments consisting of loans to officers and
directors of Parent and its Subsidiaries (including Borrower),
provided that the aggregate amount of such loans shall not exceed
$1,000,000 during the term of this Agreement; and
(vi) Other Investments, provided that the aggregate
amount of such other Investments does not exceed $2,000,000
during the term of this Agreement.
(f) Dividends, Redemptions, Etc. Neither Parent nor any of its
Subsidiaries (including Borrower) shall pay any dividends or make any
distributions on its Equity Securities; purchase, redeem, retire,
defease or otherwise acquire for value any of its Equity Securities;
return any capital to any holder of its Equity Securities as such; make
any distribution of assets, Equity Securities, obligations or
securities to any holder of its Equity Securities as such; or set apart
any sum for any such purpose; except as follows:
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(i) Borrower and Parent may pay dividends on its capital
stock payable solely in Borrower's or Parent's own capital stock;
(ii) Borrower and Parent may purchase or redeem shares of
its capital stock in connection with or pursuant to any of its
Employee Benefit Plans; and
(iii) Any Subsidiary or Affiliate of Borrower may pay
dividends to Borrower.
(g) Change in Business. Neither Parent nor any of its
Subsidiaries (including Borrower) shall engage, either directly or
indirectly through Affiliates, in any business substantially different
from its present business.
(h) Certain Indebtedness Payments, Etc. Neither Parent nor any of
its Subsidiaries (including Borrower) shall (i) prepay, redeem,
purchase, defease or otherwise satisfy in any manner prior to the
scheduled payment thereof any Indebtedness for borrowed money (other
than the Obligations) or lease obligations; or (ii) amend, modify or
otherwise change the terms of any document, instrument or agreement
evidencing Indebtedness for borrowed money (other than the Obligations)
or lease obligations so as to accelerate the scheduled payment thereof.
(i) ERISA. Neither Parent nor any ERISA Affiliate shall (i) adopt
or institute any Employee Benefit Plan that is an employee pension
benefit plan within the meaning of Section 3(2) of ERISA, (ii) take any
action which will result in the partial or complete withdrawal, within
the meanings of sections 4203 and 4205 of ERISA, from a Multiemployer
Plan, (iii) engage or permit any Person to engage in any transaction
prohibited by section 406 of ERISA or section 4975 of the Code
involving any Employee Benefit Plan or Multiemployer Plan which would
subject either Parent or any ERISA Affiliate to any tax, penalty or
other liability including a liability to indemnify, (iv) incur or allow
to exist any accumulated funding deficiency (within the meaning of
section 412 of the Code or section 302 of ERISA), excluding all
extensions permitted by law or contract, (v) fail to make full payment
when due of all amounts due as contributions to any Employee Benefit
Plan or Multiemployer Plan, (vi) fail to comply with the requirements
of section 4980B of the Code or Part 6 of Title I(B) of ERISA, or (vii)
adopt any amendment to any Employee Benefit Plan which would require
the posting of security pursuant to section 401(a)(29) of the Code, if
any of such actions or inactions described in clauses (i) - (vii),
either individually or cumulatively, would have a Material Adverse
Effect.
(j) Transactions With Affiliates. Neither Parent nor any of its
Subsidiaries (including Borrower) shall enter into any Contractual
Obligation with any Affiliate or engage in any other transaction with
any Affiliate except upon terms at least as favorable to Parent or such
Subsidiary as an arms-length transaction with unaffiliated Persons.
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(k) Accounting Changes. Neither Parent nor any of its
Subsidiaries (including Borrower) shall change (i) its fiscal year
before December 31, 1997 (currently December 31 for Parent and
Borrower, and March 31 for TSW) or (ii) its accounting practices except
as permitted by GAAP.
5.03. Financial Covenants. Until the termination of this Agreement and the
satisfaction in full by Borrower of all Obligations, Parent on behalf of
Borrower will comply, and will cause compliance, with the following financial
covenants, unless Required Banks shall otherwise consent in writing:
(a) Quick Ratio. Parent shall not permit the Quick Ratio of
Parent and its Subsidiaries to be less than 1.25 to 1.00 on the last
day of each fiscal quarter.
(b) Tangible Net Worth. Parent shall not permit its consolidated
Tangible Net Worth to be less than on any date of determination (such
date to be referred to herein as a "determination date") which occurs
after September 30, 1997 (such date to be referred to herein as the
"base date") the sum on such determination date of the following:
(i) $60,000,000;
plus
(ii) Eighty percent (80%) of the sum of Parent's
consolidated quarterly net income (ignoring any quarterly losses)
for each quarter after the base date through and including the
quarter ending immediately prior to the determination date;
plus
(iii) One Hundred percent (100%) of the net proceeds of
all Equity Securities issued by Parent and its Subsidiaries
during the period commencing on the base date and ending on the
determination date.
(c) Leverage Ratio. Parent shall not permit the Leverage Ratio of
Parent and its Subsidiaries to be greater than .90 to 1.00.
(d) Profitability. (i) Parent shall not permit the consolidated
net income before taxes of Parent and its Subsidiaries for the fiscal
quarter period ending September 30, 1997 to be a loss in excess of
$9,000,000; and (ii) Parent shall not permit the consolidated net
income after taxes of Parent and its Subsidiaries for any fiscal
quarter period thereafter to be less than $1.00.
5.04. Post-Closing Covenants. Within ten (10) days after the Closing Date,
Borrower or Parent on behalf of Borrower (as applicable) will deliver to Agent
each item
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listed in Schedule 5.04, each in form and substance reasonably satisfactory to
the Banks, and with sufficient copies for, Agent and each Bank.
SECTION VI. DEFAULT.
6.01. Events of Default. The occurrence or existence of any one or more of
the following shall constitute an "Event of Default" hereunder:
(a) Borrower shall fail to pay when due any payment required
under the terms of this Agreement or any of the other Credit Documents;
or
(b) Borrower, Parent or any of their Subsidiaries shall fail to
observe or perform any covenant, obligation, condition or agreement set
forth in Subparagraph 5.01(d), Paragraph 5.02 or Paragraph 5.03 or set
forth in Paragraph 4 of the Parent Guaranty, Paragraph 4 of the TSW
Guaranty, or Paragraph 4 of the TSW Security Agreement; or
(c) Borrower, Parent or any of their Subsidiaries shall fail to
observe or perform any other covenant, obligation, condition or
agreement contained in this Agreement or the other Credit Documents and
such failure shall continue for ten (10) days; or
(d) Any written representation, warranty, certificate,
information or other statement (financial or otherwise) made or
furnished by Borrower, Parent or any of their Subsidiaries to Agent or
any Bank Party in or in connection with this Agreement or any of the
other Credit Documents shall be false, incorrect, incomplete or
misleading in any material respect when made or furnished; or
(e) (i) Borrower, Parent or any of their Subsidiaries (A) shall
fail to make a payment or payments in an aggregate amount of $100,000
or more when due under the terms of any Indebtedness to be paid by such
Person (excluding this Agreement and the other Credit Documents or any
intercompany Indebtedness between Borrower, Parent and any of their
Subsidiaries, but including any other evidence of indebtedness of
Borrower, Parent or any of their Subsidiaries to any Bank) and such
failure shall continue beyond any period of grace provided with respect
thereto, or (B) shall fail to make any other payment or payments when
due under or otherwise default in the observance or performance of any
other agreement, term or condition contained in any such Indebtedness,
and the effect of such failure or default is to cause, or permit the
holder or holders thereof to cause, indebtedness in an aggregate amount
of $100,000 or more to become due prior to its stated date of maturity;
or (ii) there shall occur or exist any other event or condition which
causes, or permits the holder or holders of such indebtedness to cause,
indebtedness in an aggregate amount of $100,000 or more to become due
prior to its stated date of maturity (whether through holder puts,
mandatory redemptions or prepayments or otherwise); or
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(f) Borrower, Parent or any of their Subsidiaries shall (i) apply
for or consent to the appointment of a receiver, trustee, liquidator or
custodian of itself or of all or a substantial part of its property,
(ii) be unable, or admit in writing its inability, to pay its debts
generally as they mature, (iii) make a general assignment for the
benefit of its or any of its creditors, (iv) be dissolved or liquidated
in full or in part, (v) no longer be Solvent, (vi) commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or consent
to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding
commenced against it, or (vii) take any action for the purpose of
effecting any of the foregoing; or
(g) Proceedings for the appointment of a receiver, trustee,
liquidator or custodian of Borrower, Parent or any of their
Subsidiaries or of all or a substantial part of the property thereof,
or an involuntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to Borrower, Parent or any
of their Subsidiaries or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be
commenced and an order for relief entered or such proceeding shall not
be dismissed or discharged within sixty (60) days of commencement; or
(h) A final judgment or order for the payment of money in excess
of $1,000,000 shall be rendered against Borrower, Parent or any of
their Subsidiaries and the same shall remain undischarged and unpaid
for a period of thirty (30) days during which execution shall not be
effectively stayed; or
(i) Any Credit Document or any material term thereof shall cease
to be, or be asserted by Borrower, Parent or any of their Subsidiaries
(including TSW) not to be, a legal, valid and binding obligation of
such Person enforceable in accordance with its terms; or
(j) Any Reportable Event occurs which constitutes grounds for the
termination of any Employee Benefit Plan by the PBGC or for the
appointment of a trustee by the PBGC to administer any Employee Benefit
Plan, or any Employee Benefit Plan shall be terminated with unfunded
liabilities within the meaning of Title IV of ERISA or a trustee shall
be appointed by the PBGC to administer any Employee Benefit Plan; or
(k) Any Change of Control shall occur.
(Any of the events or conditions set forth in Subparagraphs 6.01(a)-(k), prior
to the giving of any required notice or the expiration of any specified grace
period, shall constitute a "Default" hereunder.)
6.02. Remedies. Upon the occurrence or existence of any Event of Default
(other than an Event of Default referred to in Subparagraph 6.01(f) or 6.01(g))
and at any time
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thereafter during the continuance of such Event of Default, Agent may, with the
consent of the Required Banks, or shall, upon instructions from the Required
Banks, by written notice to Borrower, (a) terminate the Commitments and the
obligations of the Bank Parties to make Loans or issue Letters of Credit (b)
declare all outstanding Obligations payable by Borrower to be immediately due
and payable without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived, anything contained herein or in
the Notes to the contrary notwithstanding, and/or (c) direct Borrower to deliver
to Agent funds in an amount equal to the aggregate stated amount of all
outstanding Letters of Credit. Upon the occurrence or existence of any Event of
Default described in Subparagraph 6.01(f) or 6.01(g), immediately and without
notice, (1) the Commitments and the obligations of the Bank Parties to make
Loans or issue Letters of Credit shall automatically terminate and (2) all
outstanding Obligations payable by Borrower hereunder shall automatically become
immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the Notes to the contrary notwithstanding. In addition to the
foregoing remedies, upon the occurrence or existence of any Event of Default,
Agent may exercise any right, power or remedy permitted to it by law, either by
suit in equity or by action at law, or both. Immediately after taking any action
under this Paragraph 6.02, Agent shall notify each Bank Party of such action.
SECTION VII. AGENT AND RELATIONS AMONG BANKS.
7.01. Appointment, Powers and Immunities. Each Bank Party hereby appoints
and authorizes Agent to act as its agent hereunder and under the other Credit
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in any
other Credit Document, be a trustee for any Bank Party or have any fiduciary
duty to any Bank Party. Notwithstanding anything to the contrary contained
herein, Agent shall not be required to take any action which is contrary to this
Agreement or any other Credit Document or applicable law. Neither Agent nor any
Bank Party shall be responsible to Agent or any other Bank Party for any
recitals, statements, representations or warranties made by Borrower, Parent or
any of their Subsidiaries contained in this Agreement or in any other Credit
Document, for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, or any other Credit Document or for any failure
by Borrower, Parent or any of their Subsidiaries to perform its obligations
hereunder or thereunder. Agent may employ agents and attorneys-in-fact and shall
not be responsible to any Bank Party for the negligence or misconduct of any
such agents or attorneys-in-fact selected by them with reasonable care. None of
the Agent or its directors, officers, employees or agents shall be responsible
to any Bank Party for any action taken or omitted to be taken by it or them
hereunder or under any other Credit Document or in connection herewith or
therewith, except for its or their own gross negligence or willful misconduct.
Except as otherwise provided under this Agreement, Agent shall take such action
with respect to the Credit Documents as shall be directed by the Required Banks.
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7.02. Reliance by Agent. Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, facsimile
or telex) believed by them in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by Agent with reasonable care. As to any other matters not
expressly provided for by this Agreement, Agent shall not be required to take
any action or exercise any discretion, but Agent shall be required to act or to
refrain from acting upon instructions of the Required Banks and shall in all
cases be fully protected by the Bank Parties in acting, or in refraining from
acting, hereunder or under any other Credit Document in accordance with the
instructions of the Required Banks, and such instructions of the Required Banks
and any action taken or failure to act pursuant thereto shall be binding on
Agent and all of the Bank Parties.
7.03. Defaults. Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default unless Agent has received a
notice from a Bank Party or Borrower, referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "Notice of
Default". If Agent receives such a notice of the occurrence of a Default or
Event of Default, Agent shall give prompt notice thereof to the Bank Parties.
Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Banks; provided, however, that
until Agent shall have received such directions, Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interest of the Bank Parties.
7.04. Indemnification. Without limiting the Obligations of Borrower
hereunder, each Bank agrees to indemnify Agent, ratably in accordance with such
Bank's Proportionate Share, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against Agent in any way relating to or arising out of this
Agreement or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or the enforcement of any of the
terms hereof or thereof or of any such other documents; provided, however, that
no Bank shall be liable for any of the foregoing to the extent they arise from
Agent's gross negligence or willful misconduct. Agent shall be fully justified
in refusing to take or to continue to take any action hereunder unless it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The obligations of each Bank under this
Paragraph 7.04 shall survive the payment and performance of the Obligations, the
termination of this Agreement and any Bank ceasing to be a party to this
Agreement.
7.05. Non-Reliance. Each Bank Party represents that it has, independently
and without reliance on Agent or any other Bank Party, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of the financial condition and affairs of Borrower, Parent and their
Subsidiaries and its own decision to enter into this Agreement and agrees that
it will, independently and without reliance upon Agent or any Bank Party, and
based on such documents and information as it shall deem appropriate at the
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time, continue to make its own appraisals and decisions in taking or not taking
action under this Agreement. Neither Agent nor any Bank Party shall be required
to keep Agent or any Bank Party informed as to the performance or observance by
Borrower, Parent or their Subsidiaries of the obligations under this Agreement
or any other document referred to or provided for herein or to make inquiry of,
or to inspect the properties or books of Borrower. Except for notices, reports
and other documents and information expressly required to be furnished to the
Bank Parties by Agent hereunder, neither Agent nor any Bank Party shall have any
duty or responsibility to provide Agent or any Bank Party with any credit or
other information concerning Borrower, Parent or their Subsidiaries, which may
come into the possession of Agent or any Bank Party or any of its or their
Affiliates.
7.06. Resignation or Removal of Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, Agent may resign at any time
by giving notice thereof to the Banks, and Agent may be removed at any time with
or without cause by the Required Banks. Upon any such resignation or removal,
the Required Banks shall have the right to appoint a successor Agent, which
Agent shall be reasonably acceptable to Borrower. If no successor Agent shall
have been appointed by the Required Banks and shall have accepted such
appointment within thirty (30) days after the retiring Agent's giving of notice
of resignation or the Required Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Bank Parties, appoint a successor Agent,
which shall be (a) a bank having a combined capital, surplus and retained
earnings of not less than U.S. $250,000,000 and (b) shall be reasonably
acceptable to Borrower; provided, however, that Borrower shall have no right to
approve a successor Agent which is a Bank if an Event of Default has occurred
and is continuing. 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
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Section VII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
7.07. Authorization. Agent is hereby authorized by the Bank Parties to
execute, deliver and perform, each of the Credit Documents to which Agent is or
is intended to be a party and each Bank Party agrees to be bound by all of the
agreements of Agent contained in the Credit Documents.
7.08. Agent in its Individual Capacity. Agent and its affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
Borrower, Parent and their Subsidiaries and affiliates as though such Agent were
not an Agent hereunder. With respect to Loans made and Letters of Credit issued
by SBC as a Bank, SBC shall have the same rights and powers under this Agreement
and the other Credit Documents as any other Bank Party and may exercise the same
as though it were not Agent.
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SECTION VIII. MISCELLANEOUS.
8.01. Notices. Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to or upon Borrower, any
Bank Party or Agent under this Agreement or the other Credit Documents shall be
in writing and faxed, mailed or delivered, if to Borrower or Agent at its
respective facsimile number or address set forth below, if to any Bank, at the
address or facsimile number specified beneath the heading "Address for Notices"
under the name of such Bank in Schedule I or, if to Issuing Bank, at the address
or facsimile number indicated in the notice given by Issuing Bank to the other
parties at the time any such Issuing Bank is selected by Borrower and approved
by Agent (or to such other facsimile number or address for any party as
indicated in any notice given by that party to the other parties). All such
notices and communications shall be effective (a) when sent by Federal Express
or other overnight service of recognized standing, on the second Business Day
following the deposit with such service; (b) when mailed, first class postage
prepaid and addressed as aforesaid through the United States Postal Service,
upon receipt; (c) when delivered by hand, upon delivery; and (d) when faxed,
upon confirmation of receipt; provided, however, that any notice delivered to
Agent or Issuing Bank under Section II shall not be effective until received by
such Person.
Agent: Sumitomo Bank of California
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
Telephone: (415) 445-8713
Facsimile: (212) 296-9617
Borrower: The Indus Group, Inc.
60 Spear Street
San Francisco, CA 94105
Attn: Anna Ng-Borden
Telephone: (415) 904-3915
Facsimile: (415) 904-3920
Each Notice of Borrowing, Notice of Conversion, Notice of Interest Period
Selection and LC Application shall be given by Borrower to Agent and, in the
case of an LC Application, to Issuing Bank, to the office of such Person located
at the address referred to above during such Person's normal business hours;
provided, however, that any such notice received by any such Person after 1:00
P.M. on any Business Day shall be deemed received by such Person on the next
Business Day. In any case where this Agreement authorizes notices, requests,
demands or other communications by Borrower to Agent or any Bank Party to be
made by telephone or facsimile, Agent or any Bank Party may conclusively presume
that anyone purporting to be a person designated in any incumbency certificate
or other similar document received by Agent or such Bank Party is such a person.
8.02. Expenses. Borrower shall pay on demand, whether or not any Loan is
made or any Letter of Credit is issued hereunder, (a) all reasonable fees and
expenses payable to
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third parties, including Agent's out-of-pocket expenses and reasonable
attorneys' fees and expenses, incurred by Agent in connection with the
preparation, negotiation, execution and delivery of, and the exercise of their
duties under, the Summary of Terms and Conditions dated August 2, 1997 between
Borrower and Agent and its structuring of, due diligence relating to and
syndication of the credit facilities set forth in this Agreement; (b) all
attorney costs and other reasonable fees and expenses payable to third parties
incurred by Agent in connection with the preparation, negotiation, execution,
delivery and syndication of this Agreement and the other Credit Documents, and
the preparation, negotiation, execution and delivery of amendments and waivers
hereunder and thereunder; (c) all attorney costs and other reasonable fees and
expenses payable to third parties incurred by Agent in connection with the
exercise of their rights or duties under this Agreement and the other Credit
Documents; and (d) all attorney costs and other reasonable fees and expenses
payable to third parties incurred by Agent or any Bank Party in the enforcement
or attempted enforcement of any of the Obligations or in preserving any of
Agent's or the Banks' rights and remedies (including all such fees and expenses
incurred in connection with any "workout" or restructuring affecting the Credit
Documents or the Obligations or any bankruptcy or similar proceeding involving
Borrower or any of its Subsidiaries). As used herein, the term "reasonable
attorneys' fees and expenses" shall include, without limitation, allocable costs
and expenses of Agent's and Bank's in house legal counsel and staff. The
obligations of Borrower under this Paragraph 8.02 shall survive the payment and
performance of the Obligations and the termination of this Agreement.
8.03. Indemnification. To the fullest extent permitted by law, Borrower
agrees to protect, indemnify, defend and hold harmless Agent, the Bank Parties
and their Affiliates and their respective directors, officers, employees, agents
and advisors ("Indemnitees") from and against any and all liabilities, losses,
damages or expenses of any kind or nature and from any suits, claims or demands
(including in respect of or for reasonable attorney's fees and other expenses)
arising on account of or in connection with any matter or thing or action or
failure to act by Indemnitees, or any of them, arising out of or relating to the
Credit Documents or any transaction contemplated thereby, including without
limitation any use by Borrower of any proceeds of the Loans or any Letter of
Credit, except to the extent such liability arises from the willful misconduct
or gross negligence of such Indemnitee. Upon receiving knowledge of any suit,
claim or demand asserted by a third party that Agent or any Bank Party believes
is covered by this indemnity, Agent or such Bank Party shall give Borrower
notice of the matter and an opportunity to defend it, at Borrower's sole cost
and expense, with legal counsel satisfactory to Agent or such Bank Party, as the
case may be. Any failure or delay of Agent or any Bank Party to notify Borrower
of any such suit, claim or demand shall not relieve Borrower of its obligations
under this Paragraph 8.03 but shall reduce such obligations to the extent of any
increase in those obligations caused solely by any such failure or delay which
is unreasonable. The obligations of Borrower under this Paragraph 8.03 shall
survive the payment and performance of the Obligations and the termination of
this Agreement.
8.04. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement or any other Credit Document may be amended or waived if such
amendment or
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waiver is in writing and is signed by Borrower and the Required Banks; provided,
however that:
(a) Any amendment, waiver or consent which (i) amends this
Paragraph 8.04, or (ii) amends the definition of Required Banks must be
in writing and signed or approved in writing by all Banks;
(b) Any amendment, waiver or consent which (i) amends the
definition of Total Commitment, (ii) extends the Maturity Date, (iii)
reduces the principal of or interest on the Loans or any fees or other
amounts payable for the account of the Banks hereunder, (iv) increases
the LC Commitment, (v) releases any substantial part of the Collateral,
except for any release otherwise authorized by Paragraph 2.13, or (vi)
postpones any date fixed for any payment of the principal of or
interest on the Loans or any fees or other amounts payable for the
account of the Banks hereunder must be in writing and signed or
approved in writing by all Banks;
(c) Any amendment, waiver or consent which increases or decreases
the Proportionate Share of any Bank must be in writing and signed by
such Bank;
(d) Any amendment, waiver or consent which increases the LC
Commitment or otherwise affects the rights or obligations of Issuing
Bank must be in writing and signed by Issuing Bank; and
(e) Any amendment, waiver or consent which affects the rights or
obligations of Agent must be in writing and signed by Agent.
No failure or delay by Agent or any Bank Party in exercising any right hereunder
shall operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right. Unless otherwise specified in such waiver or consent, a
waiver or consent given hereunder shall be effective only in the specific
instance and for the specific purpose for which given.
8.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Credit Documents
shall be binding upon and inure to the benefit of Borrower, the Bank
Parties, Agent, all future holders of the Notes and their respective
successors and permitted assigns, except that Borrower may not assign
or transfer any of its rights or obligations under any Credit Document
without the prior written consent of Agent and each Bank. All
references in this Agreement to any Person shall be deemed to include
all successors and assigns of such Person.
(b) Participations. Any Bank may at any time sell to one or more
banks or other financial institutions ("Participants") participating
interests in any Loan owing to such Bank, any Note held by such Bank,
any Commitment of such Bank or any other interest of such Bank under
this Agreement and the other Credit Documents;
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provided, however, that no Bank may sell a participating interest in
its Loans or Commitment in a principal amount of less than Ten Million
Dollars ($10,000,000). In the event of any such sale by a Bank of
participating interests, such Bank's obligations under this Agreement
to the other parties to this Agreement shall remain unchanged, such
Bank shall remain solely responsible for the performance thereof, such
Bank shall remain the holder of any such Note for all purposes under
this Agreement, such Bank shall retain the right to approve amendments
and waivers and other voting rights hereunder and Agent and Borrower
shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement; provided,
however, that any agreement pursuant to which any Bank sells a
participating interest to a Participant may require the selling Bank to
obtain the consent of such Participant in order for such Bank to agree
in writing to any amendment of a type specified in clause (i), (ii),
(iii), (iv) or (v) of Subparagraph 8.04(b) or Subparagraph 8.04(c), as
appropriate. Borrower agrees that if amounts outstanding under this
Agreement and the other Credit Documents are due and unpaid, or shall
have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the
fullest extent permitted by law, be deemed to have the right of setoff
in respect of its participating interest in amounts owing under this
Agreement and any other Credit Documents to the same extent as if the
amount of its participating interest were owing directly to it as a
Bank under this Agreement or any other Credit Documents; provided,
however, that (i) no Participant shall exercise any rights under this
sentence without the consent of Agent, (ii) no Participant shall have
any rights under this sentence which are greater than those of the
selling Bank and (iii) such rights of setoff shall be subject to the
obligation of such Participant to share with the Banks, and the Banks
agree to share with such Participant, as provided in Subparagraph
2.09(b). Borrower also agrees that any Bank which has transferred all
or part of its interests in the Commitments and the Loans to one or
more Participants shall, notwithstanding any such transfer, be entitled
to the full benefits accorded such Bank under Paragraph 2.10, Paragraph
2.11, and Paragraph 2.12, as if such Bank had not made such transfer.
(c) Assignments. Any Bank may at any time, sell and assign to any
Bank, any affiliate of a Bank or any other bank or financial
institution (individually, an "Assignee Bank") all or a portion of its
rights and obligations under this Agreement and the other Credit
Documents (such a sale and assignment to be referred to herein as an
"Assignment") pursuant to an assignment agreement in the form of
Exhibit H (an "Assignment Agreement"), executed by each Assignee Bank
and such assignor Bank (an "Assignor Bank") and delivered to Agent for
its acceptance and recording in the Register; provided, however, that:
(i) Without the written consent of Borrower, Agent and
Issuing Bank (which consent of Borrower, Agent and Issuing Bank
shall not be unreasonably withheld), no Bank may make any
Assignment to any Assignee Bank which is not, immediately prior
to such Assignment, a Bank hereunder or an affiliate
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which controls, is controlled by or is under common control with
a Bank hereunder;
(ii) Without the written consent of Agent and, if no
Default has occurred and is continuing, Borrower (which consent
of Agent and Borrower shall not be unreasonably withheld), no
Bank may make any Assignment to any Assignee Bank if, after
giving effect to such Assignment, the Commitment of such Bank or
such Assignee Bank would be less than Ten Million Dollars
($10,000,000) (except that a Bank may make an Assignment which
reduces its Commitment to zero without the written consent of
Borrower and Agent); and
(iii) No Bank may make any Assignment which does not
assign and delegate an equal pro rata interest in such Bank's
Loans, Commitments and all other rights, duties and obligations
of such Bank under this Agreement and the other Credit Documents.
Upon such execution, delivery, acceptance and recording of each
Assignment Agreement, from and after the Assignment Effective Date
determined pursuant to such Assignment Agreement, (A) each Assignee
Bank thereunder shall be a Bank hereunder with a Proportionate Share as
set forth on Attachment 1 to such Assignment Agreement and shall have
the rights, duties and obligations of such a Bank under this Agreement
and the other Credit Documents, and (B) the Assignor Bank thereunder
shall be a Bank with a Proportionate Share as set forth on Attachment 1
to such Assignment Agreement, or, if the Proportionate Share of the
Assignor Bank has been reduced to 0%, the Assignor Bank shall cease to
be a Bank; provided, however, that any such Assignor Bank which ceases
to be a Bank shall continue to be entitled to the benefits of any
provision of this Agreement which by its terms survives the termination
of this Agreement. Each Assignment Agreement shall be deemed to amend
Schedule I to the extent, and only to the extent, necessary to reflect
the addition of each Assignee Bank, the deletion of each Assignor Bank
which reduces its Proportionate Share to 0% and the resulting
adjustment of Proportionate Shares arising from the purchase by each
Assignee Bank of all or a portion of the rights and obligations of an
Assignor Bank under this Agreement and the other Credit Documents. On
or prior to the Assignment Effective Date determined pursuant to each
Assignment Agreement, Borrower, at its own expense, shall execute and
deliver to Agent, in exchange for the surrendered Note of the Assignor
Bank thereunder, a new Note to the order of each Assignee Bank
thereunder in an amount equal to the Commitment assumed by such
Assignee Bank and, if the Assignor Bank is continuing as a Bank
hereunder, a new Note to the order of the Assignor Bank in an amount
equal to the Commitment retained by it. Each such new Note shall be
dated the Closing Date and otherwise be in the form of the Note
replaced thereby. The Notes surrendered by the Assignor Bank shall be
returned by Agent to Borrower marked "replaced". Each Assignee Bank
which was not previously a Bank hereunder and which is not incorporated
under the laws of the United States of America or a state thereof
shall, within three (3) Business Days of becoming a Bank, deliver to
Borrower and Agent either two duly completed copies of United States
Internal Revenue Service
60
<PAGE>
Form 1001 or 4224 (or successor applicable form), as the case may be,
certifying in each case that such Bank is entitled to receive payments
under this Agreement without deduction or withholding of any United
States federal income taxes.
(d) Register. Agent shall maintain at its address referred to in
Paragraph 8.01 a copy of each Assignment Agreement delivered to it and
a register (the "Register") for the recordation of the names and
addresses of the Banks and the Proportionate Share of each Bank from
time to time. The entries in the Register shall be conclusive in the
absence of manifest error, and Borrower, Agent and the Bank Parties may
treat each Person whose name is recorded in the Register as the owner
of the Loans recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by Borrower or any Bank
Party at any reasonable time and from time to time upon reasonable
prior notice.
(e) Registration. Upon its receipt of an Assignment Agreement
executed by an Assignor Bank and an Assignee Bank (and, to the extent
required by Subparagraph 8.05(c), by Borrower, Agent and Issuing Bank),
together with payment to Agent by Assignor Bank of a registration and
processing fee of $3,500 if such assignment occurs more than thirty
(30) days after the Closing Date, Agent shall (i) promptly accept such
Assignment Agreement and (ii) on the Assignment Effective Date
determined pursuant thereto record the information contained therein in
the Register and give notice of such acceptance and recordation to the
Bank Parties and Borrower. Agent may, from time to time at its
election, prepare and deliver to the Bank Parties and Borrower a
revised Schedule I reflecting the names, addresses and respective
Proportionate Shares of all Banks then parties hereto.
8.06. Setoff; Security Interest.
(a) Setoff. In addition to any rights and remedies of the Bank
Parties provided by law, each Bank Party shall have the right, with the
prior consent of Agent, but without prior notice to or consent of
Borrower, any such notice or consent being expressly waived by Borrower
to the extent permitted by applicable law, upon the occurrence and
during the continuance of an Event of Default, to set-off and apply, or
to authorize or direct such Bank to set-off and apply, against any
indebtedness, whether matured or unmatured, of Borrower to such Bank
Party, any amount owing from such Bank Party to Borrower. The aforesaid
right of set-off may be exercised by any Bank Party against Borrower or
against any trustee in bankruptcy, debtor in possession, assignee for
the benefit of creditors, receiver or execution, judgment or attachment
creditor of Borrower or against anyone else claiming through or against
Borrower or such trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Bank Party prior to the
occurrence of an Event of Default. Each Bank Party agrees promptly to
notify Borrower after any such set-off and application made by such
Bank Party, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
61
<PAGE>
(b) Security Interest. As security for the Obligations, Borrower
hereby grants to each Bank Party, for the benefit of all the Agent and
Bank Parties, a continuing security interest in any and all deposit
accounts or moneys of Borrower now or hereafter maintained with such
Bank Party. Each Bank Party shall have all of the rights of a secured
party with respect to such security interest.
8.07. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
8.08. Partial Invalidity. If at any time any provision of this Agreement is
or becomes illegal, invalid or unenforceable in any respect under the law or any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Agreement nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
8.09. Jury Trial. EACH OF BORROWER, THE BANK PARTIES AND AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT.
8.10. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
[The next page is the first signature page.]
62
<PAGE>
IN WITNESS WHEREOF, Borrower, the Bank Parties and Agent have caused this
Agreement to be executed as of the day and year first above written.
BORROWER: THE INDUS GROUP, INC.
By:/s/ Robert W. Felton
---------------------------------
Name: Robert W. Felton
Title: Chief Executive Officer
Agent: SUMITOMO BANK OF CALIFORNIA,
As Agent
By:/s/ Erik B. Larsen
---------------------------------
Name: Erik B. Larsen
Title: Vice President
By:/s/ F. Clark Warden
---------------------------------
Name: F. Clark Warden
Title: Senior Vice President
BANKS: SUMITOMO BANK OF CALIFORNIA,
As a Bank
By:/s/ Erik B. Larsen
---------------------------------
Name: Erik B. Larsen
Title: Vice President
By:/s/ F. Clark Warden
---------------------------------
Name: F. Clark Warden
Title: Senior Vice President
63
<PAGE>
UNION BANK OF CALIFORNIA, N.A.,
As a Bank
By:/s/ Cecilia K. Person
---------------------------------
Name: Cecilia K. Person
Title: Vice President
ACKNOWLEDGEMENT AND AGREEMENT:
IN WITNESS WHEREOF, the undersigned, on behalf of Parent, hereby
acknowledges and agrees with the terms and conditions of this Agreement and
agrees that it shall comply with each of the covenants, obligations and
agreements of Parent set forth in this Agreement
INDUS INTERNATIONAL, INC.
By:/s/ Robert W. Felton
---------------------------------
Name: Robert W. Felton
Title: Chief Executive Officer
64
<PAGE>
SCHEDULE I
BANKS
Banks: Proportionate Share:
- ------ --------------------
Sumitomo Bank of California 71.42857%
Applicable Lending Office:
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
Telephone: (415) 445-8713
Facsimile: (212) 296-9617
Address for notices:
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
Telephone: (415) 445-8713
Facsimile: (212) 296-9617
Wiring Instructions:
[Information maintained with Agent]
I-1
<PAGE>
Banks: Proportionate Share:
- ------ --------------------
Union Bank of California, N.A. 28.57142%
Applicable Lending Office:
350 California Street, 10th Floor
San Francisco, CA 94104
Attn: Cecily Person
Telephone: (415) 705-7118
Facsimile: (415) 705-7111
Address for notices:
350 California Street, 10th Floor
San Francisco, CA 94104
Attn: Cecily Person
Telephone: (415) 705-7118
Facsimile: (415) 705-7111
Wiring Instructions:
Union Bank of California, N.A.
1980 Saturn Street
Monterey Park, California 90060
Attn: Commercial Note Operations
Shirley Davis
Ref. Obligor No. 4115397714
ABA No. 122000496
Acct No. 070-196431
RC No. 99251
Customer: The Indus Group, Inc.
I-2
<PAGE>
SCHEDULE II
PRICING GRID
LEVEL 1 LEVEL 2
PERIOD PERIOD
APPLICABLE MARGINS 1.25% 1.50%
COMMITMENT FEE
PERCENTAGES: .125% .200%
EXPLANATION
1. The Applicable Margin for each LIBOR Loan and the Commitment Fee
Percentage will be set for each Pricing Period and will vary depending
upon whether such period is a Level 1 Period or a Level 2 Period.
2. The first Pricing Period, which commences on the date of this Agreement
and ends on November 30, 1997, will be a Level 2 Period.
3. The second pricing period, which commences on December 1, 1997 and ends
on February 27, 1998, will be a Level 1 Period or a Level 2 Period
depending upon Parent's Leverage Ratio for the fiscal quarter period
ending on September 30, 1997.
4. Each Pricing Period thereafter will be a Level 1 Period or a Level 2
Period depending upon Parent's consolidated Leverage Ratio for the most
recent fiscal quarter period ending prior to the first day of such
Pricing Period as follows:
(a) If, during any Pricing Period (i) Parent's consolidated
Leverage Ratio is less than or equal to .650 to 1.00, Parent's
pricing will be a Level 1 Period.
(b) If, during any Pricing Period, (i) Parent's consolidated
Leverage Ratio is greater than or .650 to 1.00, Borrower's
pricing will be a Level 2 Period.
5. Level 2 Period will also apply during any Pricing Period in which
Parent has failed to provide its Compliance Certificate.
II-1
<PAGE>
SCHEDULE 3.01
INITIAL CONDITIONS PRECEDENT
A. Principal Credit Documents.
(1) The Credit Agreement, duly executed by Borrower, each Bank
Party and Agent;
(2) A Note payable to each Bank, each duly executed by
Borrower;
(3) The Borrower Security Agreement, duly executed by
Borrower;
(4) The TSW Security Agreement, duly executed by TSW;
(5) The Parent Guaranty, duly executed by Parent; and
(6) The TSW Guaranty, duly executed by TSW.
B. Other Items.
(1) A duly completed and timely delivered Notice of Borrowing;
(2) A certificate of an executive officer of Borrower,
addressed to Agent and dated the Closing Date, certifying that:
(a) The representations and warranties set forth in
Paragraph 4.01 are true and correct in all material respects
as of such date (except for such representations and
warranties made as of a specified date, which shall be true as
of such date); and
(b) No Event of Default or Default has occurred and is
continuing as of such date;
(3) Such other evidence as Agent or any Bank Party may
reasonably request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in this Agreement and the other Credit Documents.
3.01-1
<PAGE>
SCHEDULE 4.01(g)
LITIGATION
None.
4.01(g)-1
<PAGE>
SCHEDULE 4.01(p)
SUBSIDIARIES
Percentage
Name Jurisdiction Ownership
---- ------------ ---------
1. Borrower California 100%
2. TSW
International, Inc. Georgia 100%
4.01(p)-1
<PAGE>
SCHEDULE 5.02(a)
EXISTING INDEBTEDNESS
None.
5.02(a)-1
<PAGE>
SCHEDULE 5.02(b)
EXISTING LIENS
1. Liens in favor of Sun Microsystems Finance as set forth in UCC-1
Financing Statement Nos. 033199712685, 033199514710 and 033199514280
filed with the Georgia Secretary of State.
2. Lien in favor of Sun Microsystems Finance as set forth in UCC-1
Financing Statement No. 060199612046 filed with the Fulton County,
Georgia clerk's office.
3. Lien in favor of The Manifest Group as set forth in UCC-1 Financing
Statement No. 060199501913 filed with the Fulton County, Georgia
clerk's office.
4. Lien in favor of NationsBank, N.A. (South) as set forth in UCC-1
Financing Statement No. 060199619466 filed with the Fulton County,
Georgia clerk's office.
5. Lien in favor of Sanwa Leasing Corp. as set forth in UCC-1 Financing
Statement No. 060199617701 filed with the Fulton County, Georgia
clerk's office.
6. Liens in favor of Pitney Bowes Credit Inc. as set forth in UCC-1
Financing Statement Nos. 441997007862 and 441996007812 filed with the
DeKalb County, Georgia clerk's office.
7. Lien in favor of AT&T Capital Leasing as set forth in UCC-1 Financing
Statement No. 00796004068 filed with the Barrow County, Georgia clerk's
office.
8. Liens in favor of Leasing Solutions, Inc. (and/or its assignee The
First National Bank of Boston) as set forth in UCC-1 Financing
Statement Nos. 00796003380 and 00796002100 filed with the Barrow
County, Georgia clerk's office.
5.02(b)-1
<PAGE>
SCHEDULE 5.02(e)
PERMITTED INVESTMENTS
None.
5.02(e)-1
<PAGE>
SCHEDULE 5.04
POST-CLOSING COVENANTS
A. Borrower Corporate Documents.
(1) The Certificate of Incorporation of Borrower, certified as of
a recent date on or around the Closing Date by the Secretary of State
of California;
(2) A Certificate of Good Standing for Borrower (or comparable
certificate), certified as of a recent date on or around the Closing
Date by the Secretary of State of California;
(3) A certificate of the Secretary or an Assistant Secretary of
Borrower certifying (a) that attached thereto is a true and correct
copy of the Bylaws of Borrower as in effect on the Closing Date; (b)
that attached thereto are true and correct copies of resolutions duly
adopted by the Board of Directors of Borrower and continuing in effect,
which authorize the execution, delivery and performance by Borrower of
this Agreement and the other Credit Documents executed or to be
executed by Borrower and the consummation of the transactions
contemplated hereby and thereby; and (c) that there are no proceedings
for the dissolution or liquidation of Borrower;
(4) A certificate of the Secretary or an Assistant Secretary of
Borrower certifying the incumbency, signatures and authority of the
officers of Borrower authorized to execute, deliver and perform this
Agreement, the other Credit Documents and all other documents,
instruments or agreements related thereto executed or to be executed by
Borrower and indicating each such officer which is an executive
officer; and
(5) Certificates of Good Standing (or comparable certificate) for
Borrower, certified as of a recent date on or around the Closing Date
by the Secretaries of State (or comparable public official) of each
state in which Borrower is qualified to do business.
B. Parent Corporate Documents.
(1) The Certificate of Incorporation of Parent, certified as of a
recent date on or around the Closing Date by the Secretary of State of
Delaware;
(2) A Certificate of Good Standing for Parent (or comparable
certificate), certified as of a recent date on or around the Closing
Date by the Secretary of State of Delaware;
5.04-1
<PAGE>
(3) A certificate of the Secretary or an Assistant Secretary of
Parent certifying (a) that attached thereto is a true and correct copy
of the Bylaws of Parent as in effect on the Closing Date; (b) that
attached thereto are true and correct copies of resolutions duly
adopted by the Board of Directors of Parent and continuing in effect,
which authorize the execution, delivery and performance by Parent of
the Credit Documents executed or to be executed by Parent and the
consummation of the transactions contemplated hereby and thereby; and
(c) that there are no proceedings for the dissolution or liquidation of
Parent;
(4) A certificate of the Secretary or an Assistant Secretary of
Parent certifying the incumbency, signatures and authority of the
officers of Parent authorized to execute, deliver and perform the
Credit Documents and all other documents, instruments or agreements
related thereto executed or to be executed by Parent and indicating
each such officer which is an executive officer; and
(5) Certificates of Good Standing (or comparable certificate) for
Borrower, certified as of a recent date on or around the Closing Date
by the Secretaries of State (or comparable public official) of each
state in which Parent is qualified to do business.
C. TSW Corporate Documents.
(1) The Certificate of Incorporation of TSW, certified as of a
recent date on or around the Closing Date by the Secretary of State of
Georgia;
(2) A Certificate of Good Standing for TSW (or comparable
certificate), certified as of a recent date on or around the Closing
Date by the Secretary of State of Georgia;
(3) A certificate of the Secretary or an Assistant Secretary of
TSW certifying (a) that attached thereto is a true and correct copy of
the Bylaws of TSW as in effect on the Closing Date; (b) that attached
thereto are true and correct copies of resolutions duly adopted by the
Board of Directors of TSW and continuing in effect, which authorize the
execution, delivery and performance by TSW of the Credit Documents
executed or to be executed by TSW and the consummation of the
transactions contemplated hereby and thereby; and (c) that there are no
proceedings for the dissolution or liquidation of TSW;
(4) A certificate of the Secretary or an Assistant Secretary of
TSW certifying the incumbency, signatures and authority of the officers
of TSW authorized to execute, deliver and perform the Credit Documents
and all other documents, instruments or agreements related thereto
executed or to be executed by TSW and indicating each such officer
which is an executive officer; and
5.04-2
<PAGE>
(5) Certificates of Good Standing (or comparable certificate) for
Borrower, certified as of a recent date on or around the Closing Date
by the Secretaries of State (or comparable public official) of each
state in which TSW is qualified to do business.
D. Financial Statements, Financial Condition, Etc.
(1) A copy of the unaudited Financial Statements of Parent and
its Subsidiaries (including Borrower) for the fiscal quarter ended June
30, 1997 and for the fiscal year to such date (prepared on a
consolidated and consolidating basis), certified by an executive
officer of Parent to present fairly the financial condition, results of
operations and other information reflected therein and to have been
prepared in accordance with GAAP (subject to normal year-end audit
adjustments);
(2) A copy of the audited consolidated Financial Statements of
Parent for the fiscal year ended December 31, 1996, prepared by Ernst &
Young and a copy of the unqualified opinion delivered by such
accountants in connection with such Financial Statements;
(3) Such other financial, business and other information
regarding Borrower, Parent or any of their Subsidiaries as Agent may
reasonably request, including information as to possible contingent
liabilities, tax matters, environmental matters and obligations for
employee benefits and compensation.
E. Opinions. A favorable written opinion from counsel for Borrower, Parent
and TSW, addressed to Agent for the benefit of Agent and the Banks, covering
such legal matters as Agent may reasonably request and otherwise in form and
substance satisfactory to Agent.
F. Other Items.
(1) All fees and expenses payable to Agent and the Banks through
such date;
(2) All fees and expenses of Agent's counsel through such date;
and
(3) Such other evidence as Agent or any Bank Party may reasonably
request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in this Agreement and the other Credit Documents.
5.04-3
<PAGE>
CONFORMED COPY
THROUGH FIRST AMENDMENT
================================================================================
CREDIT AGREEMENT
among
THE INDUS GROUP, INC.
and
THE BANKS NAMED HEREIN
and
SUMITOMO BANK OF CALIFORNIA
September 2, 1997
================================================================================
<PAGE>
<TABLE>
CREDIT AGREEMENT
Table of Contents
<CAPTION>
Page
----
<S> <C> <C>
SECTION I. INTERPRETATION....................................................................... 2
1.01. Definitions.......................................................................... 2
1.02. GAAP................................................................................. 15
1.03. Headings............................................................................. 15
1.04. Plural Terms......................................................................... 16
1.05. Time................................................................................. 16
1.06. Governing Law........................................................................ 16
1.07. Construction......................................................................... 16
1.08. Entire Agreement..................................................................... 16
1.09. Calculation of Interest and Fees..................................................... 16
1.10. Other Interpretive Provisions........................................................ 16
SECTION II. CREDIT FACILITIES.................................................................... 17
2.01. Loan Facility........................................................................ 17
2.02. Letter of Credit Facility............................................................ 20
2.03. Amount Limitations, Commitment Reductions, Etc....................................... 25
2.04. Fees................................................................................. 26
2.05. Prepayments.......................................................................... 26
2.06. Other Payment Terms.................................................................. 27
2.07. Notes and Interest Account........................................................... 28
2.08. Loan Funding, Etc.................................................................... 28
2.09. Pro Rata Treatment................................................................... 29
2.10. Change of Circumstances.............................................................. 31
2.11. Taxes on Payments.................................................................... 33
2.12. Funding Loss Indemnification......................................................... 34
2.13. Security............................................................................. 34
SECTION III. CONDITIONS PRECEDENT................................................................. 35
3.01. Initial Conditions Precedent......................................................... 35
3.02. Conditions Precedent to Each Credit Event............................................ 35
SECTION IV. REPRESENTATIONS AND WARRANTIES....................................................... 36
4.01. Parent's Representations and Warranties.............................................. 36
4.02. Reaffirmation........................................................................ 41
SECTION V. COVENANTS............................................................................ 41
5.01. Affirmative Covenants................................................................ 41
5.02. Negative Covenants................................................................... 44
5.03. Financial Covenants.................................................................. 50
5.04. Post-Closing Covenants............................................................... 50
i
<PAGE>
Page
----
SECTION VI. DEFAULT.............................................................................. 51
6.01. Events of Default.................................................................... 51
6.02. Remedies............................................................................. 52
SECTION VII. AGENT AND RELATIONS AMONG BANKS...................................................... 53
7.01. Appointment, Powers and Immunities................................................... 53
7.02. Reliance by Agent.................................................................... 54
7.03. Defaults............................................................................. 54
7.04. Indemnification...................................................................... 54
7.05. Non-Reliance......................................................................... 54
7.06. Resignation or Removal of Agent...................................................... 55
7.07. Authorization........................................................................ 55
7.08. Agent in its Individual Capacity..................................................... 55
SECTION VIII. MISCELLANEOUS........................................................................ 56
8.01. Notices.............................................................................. 56
8.02. Expenses............................................................................. 56
8.03. Indemnification...................................................................... 57
8.04. Waivers; Amendments.................................................................. 57
8.05. Successors and Assigns............................................................... 58
8.06. Setoff; Security Interest............................................................ 61
8.07. No Third Party Rights................................................................ 62
8.08. Partial Invalidity................................................................... 62
8.09. Jury Trial........................................................................... 62
8.10. Counterparts......................................................................... 62
</TABLE>
ii
<PAGE>
SCHEDULES
I Banks
II Pricing Grid
3.01 Initial Conditions Precedent
4.01(g) Litigation
4.01(q) Borrower's Subsidiaries
5.02(a) Existing Indebtedness
5.02(b) Existing Liens
5.02(e) Existing Investments
EXHIBITS
A Notice of Borrowing (2.01(b))
B Notice of Conversion (2.01(d))
C Notice of Interest Period Selection (2.01(e))
D Note (2.07(a))
E-1 Borrower Security Agreement (2.13(a)
E-1 TSW Security Agreement (2.13(a)
F-1 Parent Guaranty (2.13(a)
F-2 TSW Guaranty (2.13(a)
G Compliance Certificate (5.01(a))
H Assignment Agreement (8.05(c))
iii
<PAGE>
EXHIBIT A
NOTICE OF BORROWING
[Date]
Sumitomo Bank of California,
as Agent
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
1. Reference is made to that certain Credit Agreement, dated as of
September 2, 1997 (the "Credit Agreement"), among The Indus Group, Inc., a
California corporation ("Borrower"), the financial institutions listed in
Schedule I to the Credit Agreement (the "Banks") and Sumitomo Bank of
California, as agent for the Banks (in such capacity, "Agent"). Unless otherwise
indicated, all terms defined in the Credit Agreement have the same respective
meanings when used herein.
2. Pursuant to Subparagraph 2.01(b) of the Credit Agreement, Borrower
hereby irrevocably requests a Borrowing upon the following terms:
(a) The principal amount of the requested Borrowing is to be
$----------;
(b) The requested Borrowing is to consist of ["Base Rate" or
"LIBOR"] Loans;
(c) If the requested Borrowing is to consist of LIBOR Loans, the
initial Interest Period for such Loans will be __________ months; and
(d) The date of the requested Borrowing is to be __________,
----.
3. Borrower hereby certifies to Agent and the Banks that, on the date
of this Notice of Borrowing and after giving effect to the requested Borrowing:
(a) The representations and warranties of Parent and its
Subsidiaries (including Borrower) set forth in Paragraph 4.01 of the
Credit Agreement and in the other Credit Documents are true and correct
in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date,
which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
A-1
<PAGE>
4. Please disburse the proceeds of the requested Borrowing to
------------------------------------.
IN WITNESS WHEREOF, Borrower has executed this Notice of
Borrowing on the date set forth above.
THE INDUS GROUP, INC.
By:___________________________
Name:
Title:
A-2
<PAGE>
EXHIBIT B
NOTICE OF CONVERSION
[Date]
Sumitomo Bank of California,
as Agent
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
1. Reference is made to that certain Credit Agreement, dated as of
September 2, 1997 (the "Credit Agreement"), among The Indus Group, Inc., a
California corporation ("Borrower"), the financial institutions listed in
Schedule I to the Credit Agreement (the "Banks") and Sumitomo Bank of
California, as agent for the Banks (in such capacity, "Agent"). Unless otherwise
indicated, all terms defined in the Credit Agreement have the same respective
meanings when used herein.
2. Pursuant to Subparagraph 2.01(d) of the Credit Agreement, Borrower
hereby irrevocably requests to convert a Borrowing as follows:
(a) The Borrowing to be converted consists of ["Base Rate" or
"LIBOR"] Loans in the aggregate principal amount of $__________ which
were initially advanced to Borrower on __________, ____;
(b) The Loans in the Borrowing are to be converted into ["Base
Rate" or "LIBOR"] Loans;
(c) If such Loans are to be converted into LIBOR Loans, the
initial Interest Period for such Loans commencing upon conversion will
be __________ months; and
(d) The date of the requested conversion is to be __________,
----.
3. Borrower hereby certifies to Agent and the Banks that, on the date
of this Notice of Conversion, and after giving effect to the requested
conversion:
(a) The representations and warranties of Parent and its
Subsidiaries (including Borrower) set forth in Paragraph 4.01 of the
Credit Agreement and in the other Credit Documents are true and correct
in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date,
which shall be true as of such date);
(b) No Default has occurred and is continuing; and
B-1
<PAGE>
(c) All of the Credit Documents are in full force and effect.
IN WITNESS WHEREOF, Borrower has executed this Notice of Conversion on
the date set forth above.
THE INDUS GROUP, INC.
By:___________________________
Name:
Title:
B-2
<PAGE>
EXHIBIT C
NOTICE OF INTEREST PERIOD SELECTION
[Date]
Sumitomo Bank of California,
as Agent
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
1. Reference is made to that certain Credit Agreement, dated as of
September 2, 1997 (the "Credit Agreement"), among The Indus Group, Inc., a
California corporation ("Borrower"), the financial institutions listed in
Schedule I to the Credit Agreement (the "Banks") and Sumitomo Bank of
California, as agent for the Banks (in such capacity, "Agent"). Unless otherwise
indicated, all terms defined in the Credit Agreement have the same respective
meanings when used herein.
2. Pursuant to Subparagraph 2.01(e) of the Credit Agreement, Borrower
hereby irrevocably selects a new Interest Period for a Borrowing as follows:
(a) The Borrowing for which a new Interest Period is to be
selected consists of LIBOR Loans in the aggregate principal amount of
$__________ which were initially advanced to Borrower on __________,
----;
(b) The last day of the current Interest Period for such Loans is
___________, ____; and
(c) The next Interest Period for such Loans commencing upon the
last day of the current Interest Period is to be _________ months.
3. Borrower hereby certifies to the Agents and the Banks that, on the
date of this Notice of Interest Period Selection, and after giving effect to the
requested selection:
(a) The representations and warranties of Parent and its
Subsidiaries (including Borrower) set forth in Paragraph 4.01 of the
Credit Agreement and in the other Credit Documents are true and correct
in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date,
which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
C-1
<PAGE>
IN WITNESS WHEREOF, Borrower has executed this Notice of Interest
Period Selection on the date set forth above.
THE INDUS GROUP, INC.
By:___________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D
NOTE
$______________ San Francisco, California
September 2, 1997
FOR VALUE RECEIVED, THE INDUS GROUP, INC., a California corporation
("Borrower"), hereby promises to pay to the order of ____________________, a
____________________ ("Bank"), the principal sum of _______________________
DOLLARS ($__________) or such lesser amount as shall equal the aggregate
outstanding principal balance of the Loans made by Bank to Borrower pursuant to
the Credit Agreement referred to below (as amended from time to time, the
"Credit Agreement"), on or before the Maturity Date specified in the Credit
Agreement; and to pay interest on said sum, or such lesser amount, at the rates
and on the dates provided in the Credit Agreement.
Borrower shall make all payments hereunder, for the account of Bank's
Applicable Lending Office, to Agent as indicated in the Credit Agreement, in
lawful money of the United States and in same day or immediately available
funds.
Borrower hereby authorizes Bank to record on the schedule(s) annexed to
this note the date and amount of each Loan and of each payment or prepayment of
principal made by Borrower and agrees that all such notations shall constitute
prima facie evidence of the matters noted; provided, however, that the failure
of Bank to make any such notation shall not affect Borrower's obligations
hereunder.
This note is one of the Notes referred to in the Credit Agreement,
dated as of September 2, 1997, among Borrower, Bank and the other financial
institutions from time to time parties thereto (collectively, the "Banks") and
Sumitomo Bank of California, as agent for the Banks. This note is subject to the
terms of the Credit Agreement, including the rights of prepayment and the rights
of acceleration of maturity set forth therein. Terms used herein have the
meanings assigned to those terms in the Credit Agreement, unless otherwise
defined herein.
Borrower shall pay all reasonable fees and expenses, including
reasonable attorneys' fees, incurred by Bank in the enforcement or attempt to
enforce any of Borrower's obligations
D-1
<PAGE>
hereunder not performed when due. Borrower hereby waives notice of presentment,
demand, protest or notice of any other kind. This note shall be governed by and
construed in accordance with the laws of the State of California.
THE INDUS GROUP, INC.
By:___________________________
Name:______________________
Title:_____________________
D-2
<PAGE>
<TABLE>
LOANS AND PAYMENTS OF PRINCIPAL
<CAPTION>
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Amount of Unpaid
Type of Amount of Interest Principal Paid Principal Notation
Date Loan Loan Period or Prepaid Balance Made By
<S> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
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- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
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</TABLE>
D-3
<PAGE>
EXHIBIT E-1
BORROWER SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of September 2, 1997, is executed by
THE INDUS GROUP, INC., a California corporation ("Borrower"), in favor of
SUMITOMO BANK OF CALIFORNIA, a California banking corporation, acting as agent
(in such capacity, "Agent") for the financial institutions which are from time
to time parties to the Credit Agreement referred to in Recital A below
(collectively, the "Banks").
RECITALS
A. Pursuant to a Credit Agreement, dated as of September 2, 1997 (the
"Credit Agreement"), among Borrower, the Banks and Agent, the Banks have agreed
to extend certain credit facilities to Borrower upon the terms and subject to
the conditions set forth therein.
B. The Banks' obligations to extend the credit facilities to Borrower
under the Credit Agreement are subject, among other conditions, to receipt by
Agent of this Security Agreement, duly executed by Borrower.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower hereby agrees with Agent, for the ratable benefit of the
Banks and Agent, as follows:
1. Definitions and Interpretation. When used in this Security
Agreement, the following terms shall have the following respective meanings:
"Account Debtor" shall have the meaning given to that term in
subparagraph 3(g) hereof.
"Agent" shall have the meaning given to that term in the
introductory paragraph hereof.
"Banks" shall have the meaning given to that term in the
introductory paragraph hereof.
"Borrower" shall have the meaning given to that term in the
introductory paragraph hereof.
"Collateral" shall have the meaning given to that term in
paragraph 2 hereof.
E-1-1
<PAGE>
"Credit Agreement" shall have the meaning given to that term in
Recital A hereof.
"Obligations" shall mean and include all loans, advances, debts,
liabilities and obligations, howsoever arising, owed by Borrower to any
Bank or Agent of every kind and description (whether or not evidenced
by any note or instrument and whether or not for the payment of money),
direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising pursuant to the terms of the Credit
Agreement or any of the other Credit Documents, including without
limitation all interest, fees, charges, expenses, attorneys' fees and
accountants' fees chargeable to Borrower or payable by Borrower
thereunder.
"Receivables" shall have the meaning given to that term in
Attachment 1 hereto.
"Related Contracts" shall have the meaning given to that term in
Attachment 1 hereto.
"UCC" shall mean the Uniform Commercial Code as in effect in the
State of California from time to time.
Unless otherwise defined herein, all other capitalized terms used herein and
defined in the Credit Agreement shall have the respective meanings given to
those terms in the Credit Agreement, and all terms defined in the UCC shall have
the respective meanings given to those terms in the UCC. The rules of
construction set forth in Section I of the Credit Agreement shall, to the extent
not inconsistent with the terms of this Security Agreement, apply to this
Security Agreement and are hereby incorporated by reference.
2. Grant of Security Interest. As security for the Obligations,
Borrower hereby pledges and assigns to Agent (for the ratable benefit of the
Banks and Agent) and grants to Agent (for the ratable benefit of the Banks and
Agent) a security interest in all right, title and interest of Borrower in and
to the property described in Attachment 1 hereto, whether now owned or hereafter
acquired (collectively and severally, the "Collateral"), which Attachment 1 is
incorporated herein by this reference.
3. Representations and Warranties. Borrower represents and warrants to
the Banks and Agent as follows:
(a) Borrower is the legal and beneficial owner of the Collateral
(or, in the case of after-acquired Collateral, at the time Borrower
acquires rights in the Collateral, will be the legal and beneficial
owner thereof). No other Person has (or, in the case of after-acquired
Collateral, at the time Borrower acquires rights therein, will have)
any right, title, claim or interest (by way of Lien, purchase option or
otherwise) in, against or to the Collateral, other than Permitted
Liens.
E-1-2
<PAGE>
(b) Agent has (or in the case of after-acquired Collateral, at
the time Borrower acquires rights therein, will have) a first priority
perfected security interest in the Collateral.
(c) All Borrower keeps all records concerning the Receivables and
the originals of all Related Contracts at its chief executive office
located at the address set forth in Paragraph 8.01 of the Credit
Agreement.
(d) Borrower has delivered to Agent, together with all necessary
stock powers, endorsements, assignments and other necessary instruments
of transfer, the originals of all Receivables consisting of instruments
and chattel paper.
(e) Each Receivable is genuine and enforceable against the party
obligated to pay the same (an "Account Debtor") free from any right of
rescission, defense, setoff or discount.
4. Covenants. Borrower hereby agrees as follows:
(a) Borrower, at Borrower's expense, shall promptly procure,
execute and deliver to Agent all documents, instruments and agreements
and perform all acts which are necessary or desirable, or which Agent
may request, to establish, maintain, preserve, protect and perfect the
Collateral, the Lien granted to Agent therein and the first priority of
such Lien or to enable Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral. Without limiting the
generality of the preceding sentence, Borrower shall (i) procure,
execute and deliver to Agent all endorsements, assignments, financing
statements and other instruments of transfer requested by Agent and
(ii) deliver to Agent promptly upon receipt all originals of Collateral
consisting of instruments, documents and chattel paper.
(b) Borrower shall not use or permit any Collateral to be used in
violation of (i) any provision of the Credit Agreement, this Security
Agreement or any other Security Document, (ii) any applicable
Governmental Rule where such use might have a Material Adverse Effect,
or (iii) any policy of insurance covering the Collateral.
(c) Borrower shall pay promptly when due all taxes and other
governmental charges, all Liens and all other charges now or hereafter
imposed upon, relating to or affecting any Collateral.
(d) Without thirty (30) days' prior written notice to Agent,
Borrower shall not (i) change Borrower's name or place of business (or,
if Borrower has more than one place of business, its chief executive
office), or the office in which Borrower's records relating to
Receivables or the originals of Related Contracts are kept, or (ii)
keep Collateral consisting of chattel paper and documents at any
location other than its chief executive office.
E-1-3
<PAGE>
(e) Upon the written request of Agent, Borrower shall deposit, or
cause to be deposited, all remittances, checks and other funds (in
whatever form) received with respect to Receivables to a deposit
account in which Agent has a first priority perfected security
interest.
(f) Borrower shall appear in and defend any action or proceeding
which may affect its title to or Agent's interest in the Collateral.
(g) If Agent gives value to enable Borrower to acquire rights in
or the use of any Collateral, Borrower shall use such value for such
purpose.
(h) Borrower shall keep separate, accurate and complete records
of the Collateral and shall provide Agent with such records and such
other reports and information relating to the Collateral as Agent may
reasonably request from time to time.
(i) Borrower shall not surrender or lose possession of (other
than to Agent), sell, encumber, lease, rent, option, or otherwise
dispose of or transfer any Collateral or right or interest therein
except as permitted in the Credit Agreement, and, notwithstanding any
provision of the Credit Agreement, Borrower shall keep the Collateral
free of all Liens except Permitted Liens.
(j) Borrower shall type, print or stamp conspicuously on the face
of all original copies of all Collateral consisting of chattel paper
and documents not in the possession of Agent a legend satisfactory to
Agent indicating that such chattel paper is subject to the security
interest granted hereby.
(k) Borrower shall collect, enforce and receive delivery of the
Receivables in accordance with past practice until otherwise notified
by Agent.
5. Authorized Action by Agent. Borrower hereby irrevocably appoints
Agent as its attorney-in-fact and agrees that Agent may perform (but Agent shall
not be obligated to and shall incur no liability to Borrower or any third party
for failure so to do) any act which Borrower is obligated by this Security
Agreement to perform, and to exercise such rights and powers as Borrower might
exercise with respect to the Collateral, including, without limitation, the
right to (a) collect by legal proceedings or otherwise and endorse, receive and
receipt for all dividends, interest, payments, proceeds and other sums and
property now or hereafter payable on or on account of the Collateral; (b) enter
into any extension, reorganization, deposit, merger, consolidation or other
agreement pertaining to, or deposit, surrender, accept, hold or apply other
property in exchange for the Collateral; (c) insure, process, preserve and
enforce the Collateral; (d) make any compromise or settlement, and take any
action it deems advisable, with respect to the Collateral; (e) pay any
Indebtedness of Borrower relating to the Collateral; and (f) execute UCC
financing statements and other documents, instruments and agreements required
hereunder; provided, however, that Agent may exercise such powers only after the
occurrence and during the continuance of an Event of Default. Borrower agrees to
reimburse Agent upon demand for all reasonable costs and expenses, including
attorneys' fees, Agent may incur while acting as
E-1-4
<PAGE>
Borrower's attorney-in-fact hereunder, all of which costs and expenses are
included in the Obligations. Borrower agrees that such care as Agent gives to
the safekeeping of its own property of like kind shall constitute reasonable
care of the Collateral when in Agent's possession; provided, however, that Agent
shall not be required to make any presentment, demand or protest, or give any
notice and need not take any action to preserve any rights against any prior
party or any other Person in connection with the Obligations or with respect to
the Collateral.
6. Default and Remedies. Borrower shall be deemed in default under this
Security Agreement upon the occurrence and during the continuance of an Event of
Default, as that term is defined in the Credit Agreement. In addition to all
other rights and remedies granted to Agent by this Security Agreement, the
Credit Agreement, the other Credit Documents, the UCC and other applicable
Governmental Rules, Agent may, upon the occurrence and during the continuance of
any Event of Default, exercise any one or more of the following rights and
remedies: (a) collect, receive, appropriate or realize upon the Collateral or
otherwise foreclose or enforce Agent's security interests in any or all
Collateral in any manner permitted by applicable Governmental Rules or in this
Security Agreement; (b) notify any or all Account Debtors to make payments on
Receivables directly to Agent; (c) sell or otherwise dispose of any or all
Collateral at one or more public or private sales, whether or not such
Collateral is present at the place of sale, for cash or credit or future
delivery, on such terms and in such manner as Agent may determine; (d) require
Borrower to assemble the Collateral and make it available to Agent at a place to
be designated by Agent; and (e) enter onto any property where any Collateral is
located and take possession thereof with or without judicial process. In
furtherance of Agent's rights hereunder, Borrower hereby grants to Agent an
irrevocable, non-exclusive license (exercisable without royalty or other payment
by Agent) to use, license or sublicense any patent, trademark, tradename,
copyright or other intellectual property in which Borrower now or hereafter has
any right, title or interest, together with the right of access to all media in
which any of the foregoing may be recorded or stored. In any case where notice
of any sale or disposition of any Collateral is required, Borrower hereby agrees
that seven (7) days notice of such sale or disposition is reasonable.
7. Miscellaneous.
(a) Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or
upon Borrower or Agent under this Security Agreement shall be given as
provided in Paragraph 8.01 of the Credit Agreement.
(b) Waivers; Amendments. Any term, covenant, agreement or
condition of this Security Agreement may be amended or waived only as
provided in the Credit Agreement. No failure or delay by Agent or any
Bank in exercising any right hereunder shall operate as a waiver
thereof or of any other right nor shall any single or partial exercise
of any such right preclude any other further exercise thereof or of any
other right. Unless otherwise specified in any such waiver or consent,
a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
E-1-5
<PAGE>
(c) Successors and Assigns. This Security Agreement shall be
binding upon and inure to the benefit of Agent, the Banks and Borrower
and their respective successors and assigns; provided, however, that
Agent, the Banks and Borrower may sell, assign and delegate their
respective rights and obligations hereunder only as permitted by the
Credit Agreement. Agent may disclose this Security Agreement as
provided in the Credit Agreement.
(d) Partial Invalidity. If at any time any provision of this
Security Agreement is or becomes illegal, invalid or unenforceable in
any respect under the law or any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions of this Security
Agreement nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
(e) Cumulative Rights, etc. The rights, powers and remedies of
Agent and the Banks under this Security Agreement shall be in addition
to all rights, powers and remedies given to Agent and the Banks by
virtue of any applicable Governmental Rule, the Credit Agreement, any
other Credit Document or any other agreement, all of which rights,
powers, and remedies shall be cumulative and may be exercised
successively or concurrently without impairing Agent's rights
hereunder. Borrower waives any right to require Agent or any Bank to
proceed against any Person or to exhaust any Collateral or to pursue
any remedy in Agent's or such Bank's power.
(f) Payments Free of Taxes, Etc. All payments made by Borrower
under this Security Agreement shall be made by Borrower free and clear
of and without deduction for any and all present and future taxes,
levies, charges, deductions and withholdings. In addition, Borrower
shall pay upon demand any stamp or other taxes, levies or charges of
any jurisdiction with respect to the execution, delivery, registration,
performance and enforcement of this Security Agreement. Upon request by
Agent, Borrower shall furnish evidence satisfactory to Agent that all
requisite authorizations and approvals by, and notices to and filings
with, governmental authorities and regulatory bodies have been obtained
and made and that all requisite taxes, levies and charges have been
paid.
(g) Borrower's Continuing Liability. Notwithstanding any
provision of this Security Agreement or any other Credit Document or
any exercise by Agent of any of its rights hereunder or thereunder
(including, without limitation, any right to collect or enforce any
Collateral), (i) Borrower shall remain liable to perform its
obligations and duties in connection with the Collateral (including,
without limitation, the Related Contracts and all other agreements
relating to the Collateral) and (ii) neither Agent nor any Bank shall
assume any liability to perform such obligations and duties or to
enforce any of Borrower's rights in connection with the Collateral
(including, without limitation, the Related Contracts and all other
agreements relating to the Collateral).
(h) Governing Law. This Security Agreement shall be governed by
and construed in accordance with the laws of the State of California
without reference to conflicts of law rules (except to the extent
otherwise provided in the UCC).
E-1-6
<PAGE>
IN WITNESS WHEREOF, Borrower has caused this Security Agreement to be
executed as of the day and year first above written.
THE INDUS GROUP, INC.
By:________________________
Name:
Title:
E-1-7
<PAGE>
ATTACHMENT 1
TO SECURITY AGREEMENT
All right, title and interest of Borrower, whether now owned or
hereafter acquired, in and to the following:
(a) All accounts, chattel paper, instruments, deposit accounts and
other rights to the payment of money (including, without limitation, general
intangibles and contract rights) (collectively, the "Receivables") and all
contracts, security agreements, leases, guaranties and other agreements
evidencing, securing or otherwise relating to the Receivables (collectively, the
"Related Contracts");
(b) All other general intangibles and contract rights not otherwise
described above (including, without limitation, customer and supplier lists and
contracts, books and records, insurance policies, tax refunds, contracts for the
purchase of real or personal property; and
(c) All proceeds of the foregoing (including, without limitation,
whatever is receivable or received when Collateral or proceeds is sold,
collected, exchanged, returned, substituted or otherwise disposed of, whether
such disposition is voluntary or involuntary, including rights to payment and
return premiums and insurance proceeds under insurance with respect to any
Collateral, and all rights to payment with respect to any cause of action
affecting or relating to the Collateral).
E-1[1]-1
<PAGE>
EXHIBIT E-2
TSW SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of September 2, 1997, is executed by
TSW INTERNATIONAL, INC., a Georgia corporation ("Grantor"), in favor of SUMITOMO
BANK OF CALIFORNIA, a California banking corporation, acting as agent (in such
capacity, "Agent") for the financial institutions which are from time to time
parties to the Credit Agreement referred to in Recital A below (collectively,
the "Banks").
RECITALS
A. Pursuant to a Credit Agreement, dated as of September 2, 1997 (the
"Credit Agreement"), among The Indus Group, Inc., a California corporation
("Borrower,") the Banks and Agent, the Banks have agreed to extend certain
credit facilities to Borrower upon the terms and subject to the conditions set
forth therein.
B. The Banks' obligations to extend the credit facilities to Borrower
under the Credit Agreement are subject, among other conditions, to receipt by
Agent of this Security Agreement, duly executed by Grantor.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Grantor hereby agrees with Agent, for the ratable benefit of the
Banks and Agent, as follows:
1. Definitions and Interpretation. When used in this Security
Agreement, the following terms shall have the following respective meanings:
"Account Debtor" shall have the meaning given to that term in
subparagraph 3(g) hereof.
"Agent" shall have the meaning given to that term in the
introductory paragraph hereof.
"Banks" shall have the meaning given to that term in the
introductory paragraph hereof.
"Borrower" shall have the meaning given to that term in the
Recital A hereof.
"Collateral" shall have the meaning given to that term in
paragraph 2 hereof.
E-2-1
<PAGE>
"Credit Agreement" shall have the meaning given to that term in
Recital A hereof.
"Grantor" shall have the meaning given to that term in the
introductory paragraph hereof.
"Obligations" shall mean and include all loans, advances, debts,
liabilities and obligations, howsoever arising, owed by Borrower to any
Bank or Agent of every kind and description (whether or not evidenced
by any note or instrument and whether or not for the payment of money),
direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising pursuant to the terms of the Credit
Agreement or any of the other Credit Documents, including without
limitation all interest, fees, charges, expenses, attorneys' fees and
accountants' fees chargeable to Borrower or payable by Borrower
thereunder.
"Receivables" shall have the meaning given to that term in
Attachment 1 hereto.
"Related Contracts" shall have the meaning given to that term in
Attachment 1 hereto.
"UCC" shall mean the Uniform Commercial Code as in effect in the
State of California from time to time.
Unless otherwise defined herein, all other capitalized terms used herein and
defined in the Credit Agreement shall have the respective meanings given to
those terms in the Credit Agreement, and all terms defined in the UCC shall have
the respective meanings given to those terms in the UCC. The rules of
construction set forth in Section I of the Credit Agreement shall, to the extent
not inconsistent with the terms of this Security Agreement, apply to this
Security Agreement and are hereby incorporated by reference.
2. Grant of Security Interest. As security for the Obligations, Grantor
hereby pledges and assigns to Agent (for the ratable benefit of the Banks and
Agent) and grants to Agent (for the ratable benefit of the Banks and Agent) a
security interest in all right, title and interest of Grantor in and to the
property described in Attachment 1 hereto, whether now owned or hereafter
acquired (collectively and severally, the "Collateral"), which Attachment 1 is
incorporated herein by this reference.
3. Representations and Warranties. Grantor represents and warrants to
the Banks and Agent as follows:
(a) Grantor is the legal and beneficial owner of the Collateral
(or, in the case of after-acquired Collateral, at the time Grantor
acquires rights in the Collateral, will be the legal and beneficial
owner thereof). No other Person has (or, in the case of after-acquired
Collateral, at the time Grantor acquires rights therein, will have) any
right, title, claim or interest (by way of Lien, purchase option or
otherwise) in, against or to the Collateral, other than Permitted
Liens.
E-2-2
<PAGE>
(b) Agent has (or in the case of after-acquired Collateral, at
the time Grantor acquires rights therein, will have) a first priority
perfected security interest in the Collateral.
(c) Grantor keeps all records concerning the Receivables and the
originals of all Related Contracts at its chief executive office
located at 3301 Windy Ridge Parkway, Atlanta, Georgia 30339.
(d) Grantor has delivered to Agent, together with all necessary
stock powers, endorsements, assignments and other necessary instruments
of transfer, the originals of all Receivables consisting of instruments
and chattel paper.
(e) Each Receivable is genuine and enforceable against the party
obligated to pay the same (an "Account Debtor") free from any right of
rescission, defense, setoff or discount.
4. Covenants. Grantor hereby agrees as follows:
(a) Grantor, at Grantor's expense, shall promptly procure,
execute and deliver to Agent all documents, instruments and agreements
and perform all acts which are necessary or desirable, or which Agent
may request, to establish, maintain, preserve, protect and perfect the
Collateral, the Lien granted to Agent therein and the first priority of
such Lien or to enable Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral. Without limiting the
generality of the preceding sentence, Grantor shall (i) procure,
execute and deliver to Agent all endorsements, assignments, financing
statements and other instruments of transfer requested by Agent and
(ii) deliver to Agent promptly upon receipt all originals of Collateral
consisting of instruments, documents and chattel paper.
(b) Grantor shall not use or permit any Collateral to be used in
violation of (i) any provision of the Credit Agreement, this Security
Agreement or any other Security Document, (ii) any applicable
Governmental Rule where such use might have a Material Adverse Effect,
or (iii) any policy of insurance covering the Collateral.
(c) Grantor shall pay promptly when due all taxes and other
governmental charges, all Liens and all other charges now or hereafter
imposed upon, relating to or affecting any Collateral.
(d) Without thirty (30) days' prior written notice to Agent,
Grantor shall not (i) change Grantor's name or place of business (or,
if Grantor has more than one place of business, its chief executive
office), or the office in which Grantor's records relating to
Receivables or the originals of Related Contracts are kept, or (ii)
keep Collateral consisting of chattel paper and documents at any
location other than its chief executive office.
E-2-3
<PAGE>
(e) Upon the written request of Agent, Grantor shall deposit, or
cause to be deposited, all remittances, checks and other funds (in
whatever form) received with respect to Receivables to a deposit
account in which Agent has a first priority perfected security
interest.
(f) Grantor shall appear in and defend any action or proceeding
which may affect its title to or Agent's interest in the Collateral.
(g) If Agent gives value to enable Grantor to acquire rights in
or the use of any Collateral, Grantor shall use such value for such
purpose.
(h) Grantor shall keep separate, accurate and complete records of
the Collateral and shall provide Agent with such records and such other
reports and information relating to the Collateral as Agent may
reasonably request from time to time.
(i) Grantor shall not surrender or lose possession of (other than
to Agent), sell, encumber, lease, rent, option, or otherwise dispose of
or transfer any Collateral or right or interest therein except as
permitted in the Credit Agreement, and, notwithstanding any provision
of the Credit Agreement, Grantor shall keep the Collateral free of all
Liens except Permitted Liens.
(j) Grantor shall type, print or stamp conspicuously on the face
of all original copies of all Collateral consisting of chattel paper
and documents not in the possession of Agent a legend satisfactory to
Agent indicating that such chattel paper is subject to the security
interest granted hereby.
(k) Grantor shall collect, enforce and receive delivery of the
Receivables in accordance with past practice until otherwise notified
by Agent.
5. Authorized Action by Agent. Grantor hereby irrevocably appoints
Agent as its attorney-in-fact and agrees that Agent may perform (but Agent shall
not be obligated to and shall incur no liability to Grantor or any third party
for failure so to do) any act which Grantor is obligated by this Security
Agreement to perform, and to exercise such rights and powers as Grantor might
exercise with respect to the Collateral, including, without limitation, the
right to (a) collect by legal proceedings or otherwise and endorse, receive and
receipt for all dividends, interest, payments, proceeds and other sums and
property now or hereafter payable on or on account of the Collateral; (b) enter
into any extension, reorganization, deposit, merger, consolidation or other
agreement pertaining to, or deposit, surrender, accept, hold or apply other
property in exchange for the Collateral; (c) insure, process, preserve and
enforce the Collateral; (d) make any compromise or settlement, and take any
action it deems advisable, with respect to the Collateral; (e) pay any
Indebtedness of Grantor relating to the Collateral; and (f) execute UCC
financing statements and other documents, instruments and agreements required
hereunder; provided, however, that Agent may exercise such powers only after the
occurrence and during the continuance of an Event of Default. Grantor agrees to
reimburse Agent upon demand for all reasonable costs and expenses, including
attorneys' fees, Agent may incur while acting as
E-2-4
<PAGE>
Grantor's attorney-in-fact hereunder, all of which costs and expenses are
included in the Obligations. Grantor agrees that such care as Agent gives to the
safekeeping of its own property of like kind shall constitute reasonable care of
the Collateral when in Agent's possession; provided, however, that Agent shall
not be required to make any presentment, demand or protest, or give any notice
and need not take any action to preserve any rights against any prior party or
any other Person in connection with the Obligations or with respect to the
Collateral.
6. Default and Remedies. Grantor shall be deemed in default under this
Security Agreement upon the occurrence and during the continuance of an Event of
Default, as that term is defined in the Credit Agreement. In addition to all
other rights and remedies granted to Agent by this Security Agreement, the
Credit Agreement, the other Credit Documents, the UCC and other applicable
Governmental Rules, Agent may, upon the occurrence and during the continuance of
any Event of Default, exercise any one or more of the following rights and
remedies: (a) collect, receive, appropriate or realize upon the Collateral or
otherwise foreclose or enforce Agent's security interests in any or all
Collateral in any manner permitted by applicable Governmental Rules or in this
Security Agreement; (b) notify any or all Account Debtors to make payments on
Receivables directly to Agent; (c) sell or otherwise dispose of any or all
Collateral at one or more public or private sales, whether or not such
Collateral is present at the place of sale, for cash or credit or future
delivery, on such terms and in such manner as Agent may determine; (d) require
Grantor to assemble the Collateral and make it available to Agent at a place to
be designated by Agent; and (e) enter onto any property where any Collateral is
located and take possession thereof with or without judicial process. In
furtherance of Agent's rights hereunder, Grantor hereby grants to Agent an
irrevocable, non-exclusive license (exercisable without royalty or other payment
by Agent) to use, license or sublicense any patent, trademark, tradename,
copyright or other intellectual property in which Grantor now or hereafter has
any right, title or interest, together with the right of access to all media in
which any of the foregoing may be recorded or stored. In any case where notice
of any sale or disposition of any Collateral is required, Grantor hereby agrees
that seven (7) days notice of such sale or disposition is reasonable.
7. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or
upon Grantor, any Bank or Agent under this Security Agreement or the
other Credit Documents to which Grantor is a party shall be in writing
and faxed, mailed or delivered, if to Grantor or Agent, at its
respective facsimile number or address set forth below or, if to any
Bank, at the address or facsimile number specified beneath the heading
"Address for Notices" under the name of such Bank in Schedule I to the
Credit Agreement (or to such other facsimile number or address for any
party as indicated in any notice given by that party to the other
parties). All such notices and communications shall be effective (i)
when sent by overnight service of recognized standing, on the second
Business Day following the deposit with such service; (ii) when mailed,
first class postage prepaid and addressed as aforesaid through the
United States Postal Service, upon receipt; (iii) when delivered by
hand, upon delivery; and (iv) when faxed, upon confirmation of receipt.
E-2-5
<PAGE>
Grantor: TSW International, Inc.
c/o The Indus Group, Inc.
60 Spear Street
San Francisco, CA 94105
Attn: Anna Ng-Borden
Telephone: (415) 904-3915
Facsimile: (415) 904-3920
Agent: Sumitomo Bank of California
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
Telephone: (415) 445-8713
Facsimile: (212) 296-9617
(b) Waivers; Amendments. Any term, covenant, agreement or
condition of this Security Agreement may be amended or waived only as
provided in the Credit Agreement. No failure or delay by Agent or any
Bank in exercising any right hereunder shall operate as a waiver
thereof or of any other right nor shall any single or partial exercise
of any such right preclude any other further exercise thereof or of any
other right. Unless otherwise specified in any such waiver or consent,
a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
(c) Successors and Assigns. This Security Agreement shall be
binding upon and inure to the benefit of Agent, the Banks and Grantor
and their respective successors and assigns; provided, however, that
Agent, the Banks and Grantor may sell, assign and delegate their
respective rights and obligations hereunder only as permitted by the
Credit Agreement. Agent may disclose this Security Agreement as
provided in the Credit Agreement.
(d) Partial Invalidity. If at any time any provision of this
Security Agreement is or becomes illegal, invalid or unenforceable in
any respect under the law or any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions of this Security
Agreement nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
(e) Cumulative Rights, etc. The rights, powers and remedies of
Agent and the Banks under this Security Agreement shall be in addition
to all rights, powers and remedies given to Agent and the Banks by
virtue of any applicable Governmental Rule, the Credit Agreement, any
other Credit Document or any other agreement, all of which rights,
powers, and remedies shall be cumulative and may be exercised
successively or concurrently without impairing Agent's rights
hereunder. Grantor waives any right to require Agent or any Bank to
proceed against any Person or to exhaust any Collateral or to pursue
any remedy in Agent's or such Bank's power.
E-2-6
<PAGE>
(f) Payments Free of Taxes, Etc. All payments made by Grantor
under this Security Agreement shall be made by Grantor free and clear
of and without deduction for any and all present and future taxes,
levies, charges, deductions and withholdings. In addition, Grantor
shall pay upon demand any stamp or other taxes, levies or charges of
any jurisdiction with respect to the execution, delivery, registration,
performance and enforcement of this Security Agreement. Upon request by
Agent, Grantor shall furnish evidence satisfactory to Agent that all
requisite authorizations and approvals by, and notices to and filings
with, governmental authorities and regulatory bodies have been obtained
and made and that all requisite taxes, levies and charges have been
paid.
(g) Grantor's Continuing Liability. Notwithstanding any provision
of this Security Agreement or any other Credit Document or any exercise
by Agent of any of its rights hereunder or thereunder (including,
without limitation, any right to collect or enforce any Collateral),
(i) Grantor shall remain liable to perform its obligations and duties
in connection with the Collateral (including, without limitation, the
Related Contracts and all other agreements relating to the Collateral)
and (ii) neither Agent nor any Bank shall assume any liability to
perform such obligations and duties or to enforce any of Grantor's
rights in connection with the Collateral (including, without
limitation, the Related Contracts and all other agreements relating to
the Collateral).
(h) Governing Law. This Security Agreement shall be governed by
and construed in accordance with the laws of the State of California
without reference to conflicts of law rules (except to the extent
otherwise provided in the UCC).
E-2-7
<PAGE>
IN WITNESS WHEREOF, Grantor has caused this Security Agreement to be
executed as of the day and year first above written.
TSW INTERNATIONAL, INC.
By:___________________________
Name:
Title:
E-2-8
<PAGE>
ATTACHMENT 1
TO SECURITY AGREEMENT
All right, title and interest of Grantor, whether now owned or
hereafter acquired, in and to the following:
(a) All accounts, chattel paper, instruments, deposit accounts and
other rights to the payment of money (including, without limitation, general
intangibles and contract rights) (collectively, the "Receivables") and all
contracts, security agreements, leases, guaranties and other agreements
evidencing, securing or otherwise relating to the Receivables (collectively, the
"Related Contracts");
(b) All other general intangibles and contract rights not otherwise
described above (including, without limitation, customer and supplier lists and
contracts, books and records, insurance policies, tax refunds, contracts for the
purchase of real or personal property; and
(c) All proceeds of the foregoing (including, without limitation,
whatever is receivable or received when Collateral or proceeds is sold,
collected, exchanged, returned, substituted or otherwise disposed of, whether
such disposition is voluntary or involuntary, including rights to payment and
return premiums and insurance proceeds under insurance with respect to any
Collateral, and all rights to payment with respect to any cause of action
affecting or relating to the Collateral).
F-2[1]-1
<PAGE>
EXHIBIT F-1
INDUS GUARANTY
THIS GUARANTY, dated as of September 2, 1997, is executed by INDUS
INTERNATIONAL, INC., a Delaware corporation ("Guarantor"), in favor of SUMITOMO
BANK OF CALIFORNIA, a California banking corporation, acting as agent (in such
capacity, and each successor thereto in such capacity, "Agent") for the
financial institutions which are from time to time parties to the Credit
Agreement referred to in Recital A below (collectively, the "Banks").
RECITALS
A. Pursuant to a Credit Agreement dated as of September 2, 1997 (as
amended from time to time, the "Credit Agreement"), among The Indus Group, Inc.,
a California corporation ("Borrower"), the Banks and Agent, the Banks have
agreed to extend certain credit facilities to Borrower upon the terms and
subject to the conditions set forth therein. Guarantor is the sole shareholder
of Borrower.
B. The Banks' obligations to extend the credit facilities to Borrower
under the Credit Agreement are subject, among other conditions, to receipt by
Agent of this Guaranty, duly executed by Guarantor.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantor hereby agrees with Agent, for the ratable benefit of the
Banks and Agent, as follows:
1. Definitions and Interpretation.
(a) Definitions. When used in this Guaranty, the following terms shall
have the following respective meanings:
"Agent" shall have the meaning given to that term in the
introductory paragraph hereof.
"Banks" shall have the meaning given to that term in the
introductory paragraph hereof.
"Borrower" shall have the meaning given to that term in the
Recital A hereof.
F-1-1
<PAGE>
"Credit Agreement" shall have the meaning given to that term in
the Recital A hereof.
"Disallowed Post-Commencement Interest and Expenses" shall mean
interest computed at the rate provided in the Credit Agreement and
claims for reimbursement, costs, expenses or indemnities under the
terms of any of the Credit Documents accruing or claimed at any time
after the commencement of any Insolvency Proceeding, if the claim for
such interest, reimbursement, costs, expenses or indemnities is not
allowable, allowed or enforceable against Borrower in such Insolvency
Proceeding.
"Guaranteed Obligations" shall mean all loans, advances, debts,
liabilities and obligations, howsoever arising, owed by Borrower to
Agent or any Bank of every kind and description (whether or not
evidenced by any note or instrument and whether or not for the payment
of money), direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising pursuant to the terms of the
Credit Agreement or any of the other Credit Documents, including,
without limitation, all principal, interest, rent, fees, taxes,
charges, expenses, attorneys' fees and accountants' fees chargeable to
Borrower or payable by Borrower thereunder.
"Guarantor" shall have the meaning given to that term in the
introductory paragraph hereof.
"Insolvency Proceeding" shall mean any case or proceeding under
the United States Bankruptcy Code or any other similar law, rule or
regulation of the United States or any jurisdiction or any other action
or proceeding for the reorganization, liquidation, appointment of a
receiver, rearrangement of debts, marshalling of assets or similar
action relating to Borrower or Guarantor, their respective creditors or
any substantial part of their respective assets, whether or not any
such case, proceeding or action is voluntary or involuntary.
"Subordinated Obligations" shall have the meaning given to that
term in Paragraph 6 hereof.
Unless otherwise defined herein, all other capitalized terms used herein and
defined in the Credit Agreement shall have the respective meanings given to
those terms in the Credit Agreement.
(b) Other Interpretive Provisions. The rules of construction set forth
in Section I of the Credit Agreement shall, to the extent not inconsistent with
the terms of this Guaranty, apply to this Guaranty and are hereby incorporated
by reference. Guarantor acknowledges receipt of copies of the Credit Agreement
and the other Credit Documents.
F-1-2
<PAGE>
2. Guaranty.
(a) Payment Guaranty. Guarantor unconditionally guarantees and
promises to pay and perform as and when due, whether at stated
maturity, upon acceleration or otherwise, any and all of the Guaranteed
Obligations. If any Insolvency Proceeding relating to Borrower is
commenced, Guarantor further unconditionally guarantees and promises to
pay and perform, upon the demand of Agent, any and all of the
Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses) in accordance with the terms
of the Credit Documents, whether or not such obligations are then due
and payable by Borrower and whether or not such obligations are
modified, reduced or discharged in such Insolvency Proceeding. This
Guaranty is a guaranty of payment and not of collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable
continuing guaranty of the Guaranteed Obligations which shall continue
in effect until all obligations of the Banks to extend credit to
Borrower have terminated and all of the Guaranteed Obligations have
been fully, finally and indefeasibly paid. If any payment on any
Guaranteed Obligation is set aside, avoided or rescinded or otherwise
recovered from Agent or any Bank, such recovered payment shall
constitute a Guaranteed Obligation hereunder and, if this Guaranty was
previously released or terminated, it automatically shall be fully
reinstated, as if such payment was never made.
(c) Independent Obligation. The liability of Guarantor hereunder
is independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against Guarantor irrespective of
whether action is brought against Borrower or any other guarantor of
the Guaranteed Obligations or whether Borrower or any other guarantor
of the Guaranteed Obligations is joined in any such action or actions.
(d) Fraudulent Transfer Limitation. If, in any action to enforce
this Guaranty, any court of competent jurisdiction determines that
enforcement against Guarantor for the full amount of the Guaranteed
Obligations is not lawful under or would be subject to avoidance under
Section 548 of the United States Bankruptcy Code or any applicable
provision of any comparable law of any state or other jurisdiction, the
liability of Guarantor under this Guaranty shall be limited to the
maximum amount lawful and not subject to such avoidance.
(e) Termination. Notwithstanding any attempted termination of
this Guaranty, this Guaranty shall continue to be in full force and
effect and applicable to any Guaranteed Obligations arising thereafter
which arise because prior payments of Guaranteed Obligations are
rescinded or otherwise required to be surrendered by Agent or any Bank
after receipt.
3. Representations and Warranties. Guarantor hereby represents and
warrants to Agent and the Banks as follows:
F-1-3
<PAGE>
(a) Due Incorporation, Qualification, Etc. Guarantor is a
corporation duly organized, validly, existing and in good standing
under the laws of its jurisdiction of organization and is duly
qualified and in good standing in each jurisdiction where the nature of
its business or properties requires such qualification.
(b) Authority. The execution, delivery and performance by
Guarantor of this Guaranty are within the power of Guarantor and have
been duly authorized by all necessary actions on the part of Guarantor.
(c) Enforceability. This Guaranty has been duly executed and
delivered by Guarantor and constitutes a legal, valid and binding
obligation of Guarantor, enforceable against it in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of
creditors' rights generally.
(d) Non-Contravention. The execution, delivery and performance by
Guarantor of this Guaranty do not (i) violate any Requirement of Law
applicable to Guarantor, (ii) contravene any material Contractual
Obligation of Guarantor or (iii) result in the creation or imposition
of any Lien upon any property, asset or revenue of Guarantor.
(e) Approvals. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Authority
or other Person (including, without limitation, the shareholders of any
Person) is required in connection with the execution, delivery and
performance of this Guaranty, except such consents, approvals, orders,
authorizations, registrations, declarations and filings that are so
required and which have been obtained and are in full force and effect.
(f) No Violation. Guarantor is not in violation of any
Requirement of Law applicable to Guarantor or any Contractual
Obligation of Guarantor, where, in either case, such violation is
reasonably likely to have a Material Adverse Effect.
(g) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending
or, to the knowledge of Guarantor, threatened against Guarantor in any
court or before any other Governmental Authority which (i) is
reasonably likely (alone or in the aggregate) to have a Material
Adverse Effect or (ii) seeks to enjoin, either directly or indirectly,
the execution, delivery or performance of this Guaranty by Guarantor;
(h) Financial Statements. The Financial Statements of Guarantor
which have been delivered to Agent and the Banks fairly present the
information reflected therein and have been prepared in accordance with
GAAP.
(i) Other Regulations. Guarantor is not subject to regulation
under the Investment Company Act of 1940, the Public Utility Holding
Company Act of 1935, the
F-1-4
<PAGE>
Federal Power Act, any state public utilities code or to any other
Governmental Rule limiting its ability to incur indebtedness.
(j) Taxes. Guarantor has paid all taxes and other charges imposed
by any Governmental Authority due and payable by Guarantor other than
those which are being challenged in good faith by appropriate
proceedings and for which adequate reserves have been established.
4. Covenants. Until all obligations of Agent or any Bank to extend
credit to Borrower have terminated and all of the Guaranteed Obligations have
been fully, finally and indefeasibly paid, Guarantor shall comply with each of
the covenants as set forth in Paragraphs 5.01, 5.02, 5.03 and 5.04 of the Credit
Agreement.
5. Authorizations, Waivers, Etc.
(a) Authorizations. Guarantor authorizes Agent and the Banks, in
their discretion, without notice to Guarantor, irrespective of any
change in the financial condition of Borrower, Guarantor or any other
guarantor of the Guaranteed Obligations since the date hereof, and
without affecting or impairing in any way the liability of Guarantor
hereunder, from time to time to:
(i) Create new Guaranteed Obligations and renew,
compromise, extend, accelerate or otherwise change the time for
payment or performance of, or otherwise amend or modify the
Credit Documents or change the terms of the Guaranteed
Obligations or any part thereof, including increase or decrease
of the rate of interest thereon;
(ii) Take and hold security for the payment or
performance of the Guaranteed Obligations and exchange, enforce,
waive or release any such security; apply such security and
direct the order or manner of sale thereof; and purchase such
security at public or private sale;
(iii) Otherwise exercise any right or remedy they may
have against Borrower, Guarantor, any other guarantor of the
Guaranteed Obligations or any security, including, without
limitation, the right to foreclose upon any such security by
judicial or nonjudicial sale;
(iv) Settle, compromise with, release or substitute any
one or more makers, endorsers or guarantors of the Guaranteed
Obligations; and
(v) Assign the Guaranteed Obligations, this Guaranty or
the other Credit Documents in whole or in part to the extent
provided in the Credit Agreement and the other Credit Documents.
F-1-5
<PAGE>
(b) Waivers. Guarantor hereby waives:
(i) Any right to require Agent or any Bank to (A) proceed
against Borrower or any other guarantor of the Guaranteed
Obligations, (B) proceed against or exhaust any security received
from Borrower, Guarantor or any other guarantor of the Guaranteed
Obligations or otherwise marshall the assets of Borrower,
Guarantor or any other guarantor of the Guaranteed Obligations or
(C) pursue any other remedy in Agent's or any Bank's power
whatsoever;
(ii) Any defense arising by reason of the application by
Borrower of the proceeds of any borrowing;
(iii) Any defense resulting from the absence, impairment
or loss of any right of reimbursement, subrogation, contribution
or other right or remedy of Guarantor against Borrower, any other
guarantor of the Guaranteed Obligations or any security, whether
resulting from an election by Agent or any Bank to foreclose upon
security by nonjudicial sale, or otherwise;
(iv) Any setoff or counterclaim of Borrower or any
defense which results from any disability or other defense of
Borrower or the cessation or stay of enforcement from any cause
whatsoever of the liability of Borrower (including, without
limitation, the lack of validity or enforceability of any of the
Credit Documents);
(v) Any defense based upon any law, rule or regulation
which provides that the obligation of a surety must not be
greater or more burdensome than the obligation of the principal;
(vi) Until all obligations of Agent or any Bank to extend
credit to Borrower have terminated and all of the Guaranteed
Obligations have been fully, finally and indefeasibly paid, any
right of subrogation, reimbursement, indemnification or
contribution and other similar right to enforce any remedy which
Agent, the Banks or any other Person now has or may hereafter
have against Borrower on account of the Guaranteed Obligations,
and any benefit of, and any right to participate in, any security
now or hereafter received by Agent, any Bank or any other Person
on account of the Guaranteed Obligations;
(vii) All presentments, demands for performance, notices
of non-performance, notices delivered under the Credit Documents,
protests, notice of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation or incurring of new or
additional Guaranteed Obligations and notices of any public or
private foreclosure sale;
(viii) The benefit of any statute of limitations to the
extent permitted by law;
F-1-6
<PAGE>
(ix) Any appraisement, valuation, stay, extension,
moratorium redemption or similar law or similar rights for
marshalling;
(x) Any right to be informed by Agent or any Bank of the
financial condition of Borrower or any other guarantor of the
Guaranteed Obligations or any change therein or any other
circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations;
(xi) Until all obligations of Agent or any Bank to extend
credit to Borrower have terminated and all of the Guaranteed
Obligations have been fully, finally and indefeasibly paid, any
right to revoke this Guaranty;
(xii) Any defense arising from an election for the
application of Section 1111(b)(2) of the United States Bankruptcy
Code which applies to the Guaranteed Obligations;
(xiii) Any defense based upon any borrowing or grant of a
security interest under Section 364 of the United States
Bankruptcy Code; and
(xiv) Any right it may have to a fair value hearing to
determine the size of a deficiency judgment following any
foreclosure on any security for the Guaranteed Obligations.
Without limiting the scope of any of the foregoing provisions of this
Paragraph 5, Guarantor hereby further waives (A) all rights and
defenses arising out of an election of remedies by Agent or any Bank,
even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a Guaranteed Obligation, has
destroyed Guarantor's rights of subrogation and reimbursement against
Borrower by the operation of Section 580d of the Code of Civil
Procedure or otherwise, (B) all rights and defenses Guarantor may have
by reason of protection afforded to Borrower with respect to the
Guaranteed Obligations pursuant to the antideficiency or other laws of
California limiting or discharging the Guaranteed Obligations,
including, without limitation, Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure, and (C) all other rights and
defenses available to Guarantor by reason of Sections 2787 to 2855,
inclusive, Section 2899 or Section 3433 of the California Civil Code or
Section 3605 of the California Commercial Code.
(c) Financial Condition of Borrower, Etc. Guarantor is fully
aware of the financial condition and affairs of Borrower. Guarantor has
executed this Guaranty without reliance upon any representation,
warranty, statement or information concerning Borrower furnished to
Guarantor by Agent or any Bank and has, independently and without
reliance on Agent or any Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of Borrower and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed
Obligations. Guarantor is in a position to obtain, and assumes full
responsibility for obtaining, any additional information about the
financial
F-1-7
<PAGE>
condition and affairs of Borrower and of other circumstances affecting
the risk of nonpayment or nonperformance of the Guaranteed Obligations
and will, independently and without reliance upon Agent or any Bank,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own appraisals and
decisions in taking or not taking action in connection with this
Guaranty.
6. Subordination. Guarantor hereby subordinates any and all debts,
liabilities and obligations owed to Guarantor by Borrower (the "Subordinated
Obligations") to the Guaranteed Obligations as provided in this Paragraph 6.
(a) Prohibited Payments, Etc. Until the occurrence of a Default
or an Event of Default or any default by Guarantor hereunder, Guarantor
and its other Subsidiaries may receive regularly scheduled payments
from Borrower on account of Subordinated Obligations. After the
occurrence and during the continuance of any Default or Event of
Default or any default by Guarantor hereunder (including the
commencement and continuation of any Insolvency Proceeding relating to
Borrower), however, unless Agent otherwise requests, Guarantor shall
not, and shall not permit any of its Subsidiaries to, demand, accept or
take any action to collect any payment on account of the Subordinated
Obligations.
(b) Prior Payment of Guaranteed Obligations. In any Insolvency
Proceeding relating to Borrower, Guarantor agrees that Agent and the
Banks shall be entitled to receive payment of all Guaranteed
Obligations (including any and all Disallowed Post- Commencement
Interest and Expenses) before Guarantor or any of its Subsidiaries
receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of
any Default or Event of Default (including the commencement and
continuation of any Insolvency Proceeding relating to Borrower),
Guarantor and its Subsidiaries shall, if Agent so requests, collect,
enforce and receive payments on account of the Subordinated Obligations
as trustee for Agent and the Banks and deliver such payments to Agent
on account of the Guaranteed Obligations (including any and all
Disallowed Post- Commencement Interest and Expenses), together with any
necessary endorsements or other instruments of transfer, but without
reducing or affecting in any manner the liability of Guarantor under
the other provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Default or Event of Default or any default by
Guarantor hereunder (including the commencement and continuation of any
Insolvency Proceeding relating to Borrower), Agent is authorized and
empowered (but without any obligation to so do), in its discretion, (i)
in the name of Guarantor and its Subsidiaries, to collect and enforce,
and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Guaranteed Obligations
(including any and all Disallowed Post- Commencement Interest and
Expenses), and (ii) to require Guarantor (A) to collect and enforce,
and to submit claims in respect of, Subordinated Obligations and (B) to
pay any
F-1-8
<PAGE>
amounts received on such obligations to Agent for application to the
Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses).
7. General Pledge; Setoff.
(a) Pledge. In addition to all liens upon and rights of setoff
against the property of Guarantor given to Agent or any Bank by law or
separate agreement to secure the liabilities of Guarantor hereunder, to
the extent permitted by law, Guarantor hereby grants to Agent (for the
ratable benefit of Agent and the Banks), as security for Guarantor's
obligations hereunder, a security interest in all monies, deposit
accounts, securities and other property of Guarantor now or hereafter
in the possession of or on deposit with Agent or any Bank, whether held
in a general or special account or deposit, or for safekeeping or
otherwise; and Agent shall have all rights and remedies of a secured
party with respect to such property.
(b) Setoff. In addition to any rights and remedies of Agent or
any Bank provided by law, Agent and each Bank, with the prior consent
of Agent, shall have the right, without prior notice to Guarantor, any
such notice being expressly waived by Guarantor to the extent permitted
by applicable law, upon the occurrence and during the continuance of an
Event of Default, to set-off and apply against the Guaranteed
Obligations any amount owing from Agent or any Bank to Guarantor,
including all deposits, accounts and moneys of Guarantor then or
thereafter maintained with Agent or any Bank, at or at any time after,
the happening of any of the above mentioned events.
(c) Nonwaiver. No security interest or right of setoff shall be
deemed to have been waived by any act or conduct on the part of Agent
or any Bank or by any failure to exercise such right of setoff or to
enforce such security interest, or by any delay in so doing; and every
right of setoff and security interest shall continue in full force and
effect until such right of setoff or security interest is specifically
waived or released by an instrument in writing executed by Agent.
8. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or
upon Guarantor, any Bank or Agent under this Guaranty or the other
Credit Documents to which Guarantor is a party shall be in writing and
faxed, mailed or delivered, if to Guarantor or Agent, at its respective
facsimile number or address set forth below or, if to any Bank, at the
address or facsimile number specified beneath the heading "Address for
Notices" under the name of such Bank in Schedule I to the Credit
Agreement (or to such other facsimile number or address for any party
as indicated in any notice given by that party to the other parties).
All such notices and communications shall be effective (i) when sent by
overnight service of recognized standing, on the second Business Day
following the
F-1-9
<PAGE>
deposit with such service; (ii) when mailed, first class postage
prepaid and addressed as aforesaid through the United States Postal
Service, upon receipt; (iii) when delivered by hand, upon delivery; and
(iv) when faxed, upon confirmation of receipt.
Guarantor: Indus International, Inc.
60 Spear Street
San Francisco, CA 94105
Attn: Anna Ng-Borden
Telephone: (415) 904-3915
Facsimile: (415) 904-3920
Agent: Sumitomo Bank of California
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
Telephone: (415) 445-8713
Facsimile: (212) 296-9617
(b) Payments. Guarantor shall make all payments required
hereunder to Agent, or its order, at Agent's office located at the
address set forth in Subparagraph 8(a) hereof, or at such other office
as Agent may designate, on demand, in Dollars. If any amounts required
to be paid by Guarantor under this Guaranty are not paid when due,
Guarantor shall pay interest on the aggregate, outstanding balance of
such amounts from the date due until those amounts are paid in full at
a per annum rate equal to the Base Rate plus two percent (2.00%), such
rate to change from time to time as the Base Rate shall change.
(c) Expenses. Guarantor shall pay on demand (i) all reasonable
fees and expenses, including reasonable attorneys' fees and expenses,
incurred by Agent in connection with the preparation, execution and
delivery of, and the exercise of its duties under, this Guaranty and
the preparation, execution and delivery of amendments and waivers
hereunder and (ii) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Agent and the
Banks in connection with the enforcement or attempted enforcement of
this Guaranty or any of the Guaranteed Obligations or in preserving any
of Agent's or the Banks' rights and remedies (including, without
limitation, all such fees and expenses incurred in connection with any
"workout" or restructuring affecting the Credit Documents or the
Guaranteed Obligations or any bankruptcy or similar proceeding
involving Guarantor, Borrower or any of their affiliates).
(d) Waivers; Amendments. This Guaranty may not be amended or
modified, nor may any of its terms be waived, except by written
instruments signed by Guarantor and Agent. Each waiver or consent under
any provision hereof shall be effective only in the specific instances
for the purpose for which given. No failure or delay on Agent's or any
Bank's part in exercising any right hereunder shall operate as a waiver
thereof or
F-1-10
<PAGE>
of any other right nor shall any single or partial exercise of any such
right preclude any other further exercise thereof or of any other
right.
(e) Assignments. This Guaranty shall be binding upon and inure to
the benefit of Agent, the Banks and Guarantor and their respective
successors and assigns; provided, however, that Guarantor may not
assign or transfer any of its rights and obligations under this
Guaranty without the prior written consent of Agent and the Banks, and,
provided, further, that Agent or any Bank may sell, assign and delegate
their respective rights and obligations hereunder only as permitted by
the Credit Agreement. All references in this Guaranty to any Person
shall be deemed to include all permitted successors and assigns of such
Person.
(f) Cumulative Rights, etc. The rights, powers and remedies of
Agent and the Banks under this Guaranty shall be in addition to all
rights, powers and remedies given to Agent and the Banks by virtue of
any applicable law, rule or regulation of any Governmental Authority,
the Credit Agreement, any other Credit Document or any other agreement,
all of which rights, powers, and remedies shall be cumulative and may
be exercised successively or concurrently without impairing Agent's or
any Bank's rights hereunder. Guarantor waives any right to require
Agent or any Bank to proceed against any Person or to exhaust any
Collateral or to pursue any remedy in Agent's or such Bank's power.
(g) Payments Free of Taxes, Etc. All payments made by Guarantor
under this Guaranty shall be made by Guarantor free and clear of and
without deduction for any and all present and future taxes, levies,
charges, deductions and withholdings. In addition, Guarantor shall pay
upon demand any stamp or other taxes, levies or charges of any
jurisdiction with respect to the execution, delivery, registration,
performance and enforcement of this Guaranty. If any taxes, levies,
charges or other amounts are required to be withheld from any amounts
payable to Agent or any Bank hereunder, the amounts so payable to Agent
or such Bank shall be increased to the extent necessary to yield to
Agent or such Bank (after payment of all such amounts) any such amounts
payable hereunder in the amounts specified in this Guaranty. Upon
request by Agent or any Bank, Guarantor shall furnish evidence
satisfactory to Agent or such Bank that all requisite authorizations
and approvals by, and notices to and filings with, governmental
authorities and regulatory bodies have been obtained and made and that
all requisite taxes, levies and charges have been paid.
(h) Partial Invalidity. If at any time any provision of this
Guaranty is or becomes illegal, invalid or unenforceable in any respect
under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Guaranty nor the
legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired
thereby.
(i) Governing Law. This Guaranty shall be governed by and
construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
F-1-11
<PAGE>
(j) Jury Trial. EACH OF GUARANTOR, THE BANKS AND AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
GUARANTY.
(k) Limitation of Liability. NO CLAIM MAY BE MADE BY GUARANTOR
AGAINST AGENT, ANY BANK OR THE AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, ATTORNEYS OR AGENTS OF AGENT OR ANY BANK FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM
(WHETHER BASED UPON ANY BREACH OF CONTRACT, TORT, BREACH OF STATUTORY
DUTY OR ANY OTHER THEORY OF LIABILITY) ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS GUARANTY, OR ANY ACT, OMISSION OR
EVENT OCCURRING IN CONNECTION THEREWITH, AND GUARANTOR HEREBY WAIVES,
RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES,
WHETHER OR NOT NOW ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO
EXIST IN ITS FAVOR.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
as of the day and year first above written.
INDUS INTERNATIONAL, INC.
By:____________________________
Name:
Title:
F-1-12
<PAGE>
EXHIBIT F-2
TSW GUARANTY
THIS GUARANTY, dated as of September 2, 1997, is executed by TSW
INTERNATIONAL, INC., a Georgia corporation ("Guarantor"), in favor of SUMITOMO
BANK OF CALIFORNIA, a California banking corporation, acting as agent (in such
capacity, and each successor thereto in such capacity, "Agent") for the
financial institutions which are from time to time parties to the Credit
Agreement referred to in Recital A below (collectively, the "Banks").
RECITALS
A. Pursuant to a Credit Agreement dated as of September 2, 1997 (as
amended from time to time, the "Credit Agreement"), among The Indus Group, Inc.,
a California corporation ("Borrower"), the Banks and Agent, the Banks have
agreed to extend certain credit facilities to Borrower upon the terms and
subject to the conditions set forth therein. Guarantor is an Affiliate of
Borrower.
B. The Banks' obligations to extend the credit facilities to Borrower
under the Credit Agreement are subject, among other conditions, to receipt by
Agent of this Guaranty, duly executed by Guarantor.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantor hereby agrees with Agent, for the ratable benefit of the
Banks and Agent, as follows:
1. Definitions and Interpretation.
(a) Definitions. When used in this Guaranty, the following terms shall
have the following respective meanings:
"Adjusted Net Worth" shall mean, with respect to Guarantor at any
time, the remainder of (a) the fair value of the assets of Guarantor as
of such date, minus (b) the fair value of the liabilities of Guarantor
as of such date (excluding, however, any liability of Guarantor
hereunder), such assets and liabilities to be determined in accordance
with any state or federal fraudulent conveyance or transfer law which
is applicable to this Guaranty.
"Agent" shall have the meaning given to that term in the
introductory paragraph hereof.
F-2-1
<PAGE>
"Banks" shall have the meaning given to that term in the
introductory paragraph hereof.
"Borrower" shall have the meaning given to that term in the
Recital A hereof.
"Credit Agreement" shall have the meaning given to that term in
the Recital A hereof.
"Disallowed Post-Commencement Interest and Expenses" shall mean
interest computed at the rate provided in the Credit Agreement and
claims for reimbursement, costs, expenses or indemnities under the
terms of any of the Credit Documents accruing or claimed at any time
after the commencement of any Insolvency Proceeding, if the claim for
such interest, reimbursement, costs, expenses or indemnities is not
allowable, allowed or enforceable against Borrower in such Insolvency
Proceeding.
"Guaranteed Obligations" shall mean all loans, advances, debts,
liabilities and obligations, howsoever arising, owed by Borrower to
Agent or any Bank of every kind and description (whether or not
evidenced by any note or instrument and whether or not for the payment
of money), direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising pursuant to the terms of the
Credit Agreement or any of the other Credit Documents, including,
without limitation, all principal, interest, rent, fees, taxes,
charges, expenses, attorneys' fees and accountants' fees chargeable to
Borrower or payable by Borrower thereunder.
"Guarantor" shall have the meaning given to that term in the
introductory paragraph hereof.
"Insolvency Proceeding" shall mean any case or proceeding under
the United States Bankruptcy Code or any other similar law, rule or
regulation of the United States or any jurisdiction or any other action
or proceeding for the reorganization, liquidation, appointment of a
receiver, rearrangement of debts, marshalling of assets or similar
action relating to Borrower or Guarantor, their respective creditors or
any substantial part of their respective assets, whether or not any
such case, proceeding or action is voluntary or involuntary.
"Maximum Guaranty Amount" shall mean, at any time, the greatest
of (a) ninety-five percent (95%) of the Adjusted Net Worth of Guarantor
at such time, (b) ninety-five percent (95%) of the Adjusted Net Worth
of Guarantor on the date hereof and (c) the value derived by Guarantor
from the Guaranteed Obligations incurred at or prior to such time.
"Subordinated Obligations" shall have the meaning given to that
term in Paragraph 5 hereof.
F-2-2
<PAGE>
Unless otherwise defined herein, all other capitalized terms used
herein and defined in the Credit Agreement shall have the respective
meanings given to those terms in the Credit Agreement.
(b) Other Interpretive Provisions. The rules of construction set
forth in Section I of the Credit Agreement shall, to the extent not
inconsistent with the terms of this Guaranty, apply to this Guaranty
and are hereby incorporated by reference. Guarantor acknowledges
receipt of copies of the Credit Agreement and the other Credit
Documents.
2. Guaranty.
(a) Payment Guaranty. Guarantor unconditionally guarantees and
promises to pay and perform as and when due, whether at stated
maturity, upon acceleration or otherwise, any and all of the Guaranteed
Obligations. If any Insolvency Proceeding relating to Borrower is
commenced, Guarantor further unconditionally guarantees and promises to
pay and perform, upon the demand of Agent, any and all of the
Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses) in accordance with the terms
of the Credit Documents, whether or not such obligations are then due
and payable by Borrower and whether or not such obligations are
modified, reduced or discharged in such Insolvency Proceeding. This
Guaranty is a guaranty of payment and not of collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable
continuing guaranty of the Guaranteed Obligations which shall continue
in effect until all obligations of the Banks to extend credit to
Borrower have terminated and all of the Guaranteed Obligations have
been fully, finally and indefeasibly paid. If any payment on any
Guaranteed Obligation is set aside, avoided or rescinded or otherwise
recovered from Agent or any Bank, such recovered payment shall
constitute a Guaranteed Obligation hereunder and, if this Guaranty was
previously released or terminated, it automatically shall be fully
reinstated, as if such payment was never made.
(c) Independent Obligation. The liability of Guarantor hereunder
is independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against Guarantor irrespective of
whether action is brought against Borrower or any other guarantor of
the Guaranteed Obligations or whether Borrower or any other guarantor
of the Guaranteed Obligations is joined in any such action or actions.
(d) Fraudulent Transfer Limitation. If, in any action to enforce
this Guaranty, any court of competent jurisdiction determines that
enforcement against Guarantor for the full amount of the Guaranteed
Obligations is not lawful under or would be subject to avoidance under
Section 548 of the United States Bankruptcy Code or any applicable
provision of any comparable law of any state or other jurisdiction, the
liability of
F-2-3
<PAGE>
Guarantor under this Guaranty shall be limited to the maximum amount
lawful and not subject to such avoidance.
(e) Maximum Guaranty Amount. The liability of Guarantor under
this Guaranty shall not at any time exceed the Maximum Guaranty Amount;
provided, however, that Agent and the Banks may permit the Guaranteed
Obligations to exceed the foregoing limitation without affecting
Guarantor's liability hereunder.
(f) Termination. Notwithstanding any attempted termination of
this Guaranty, this Guaranty shall continue to be in full force and
effect and applicable to any Guaranteed Obligations arising thereafter
which arise because prior payments of Guaranteed Obligations are
rescinded or otherwise required to be surrendered by Agent or any Bank
after receipt.
3. Representations and Warranties. Guarantor hereby represents and
warrants to Agent and the Banks as follows:
(a) Due Incorporation, Qualification, Etc. Guarantor is a
corporation duly organized, validly, existing and in good standing
under the laws of its jurisdiction of organization and is duly
qualified and in good standing in each jurisdiction where the nature of
its business or properties requires such qualification.
(b) Authority. The execution, delivery and performance by
Guarantor of this Guaranty are within the power of Guarantor and have
been duly authorized by all necessary actions on the part of Guarantor.
(c) Enforceability. This Guaranty has been duly executed and
delivered by Guarantor and constitutes a legal, valid and binding
obligation of Guarantor, enforceable against it in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of
creditors' rights generally.
(d) Non-Contravention. The execution, delivery and performance by
Guarantor of this Guaranty do not (i) violate any Requirement of Law
applicable to Guarantor, (ii) contravene any material Contractual
Obligation of Guarantor or (iii) result in the creation or imposition
of any Lien upon any property, asset or revenue of Guarantor.
(e) Approvals. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Authority
or other Person (including, without limitation, the shareholders of any
Person) is required in connection with the execution, delivery and
performance of this Guaranty, except such consents, approvals, orders,
authorizations, registrations, declarations and filings that are so
required and which have been obtained and are in full force and effect.
F-2-4
<PAGE>
(f) No Violation. Guarantor is not in violation of any
Requirement of Law applicable to Guarantor or any Contractual
Obligation of Guarantor, where, in either case, such violation is
reasonably likely to have a Material Adverse Effect.
(g) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending
or, to the knowledge of Guarantor, threatened against Guarantor in any
court or before any other Governmental Authority which (i) is
reasonably likely (alone or in the aggregate) to have a Material
Adverse Effect or (ii) seeks to enjoin, either directly or indirectly,
the execution, delivery or performance of this Guaranty by Guarantor;
(h) Financial Statements. The Financial Statements of Guarantor
which have been delivered to Agent and the Banks fairly present the
information reflected therein and have been prepared in accordance with
GAAP.
(i) Other Regulations. Guarantor is not subject to regulation
under the Investment Company Act of 1940, the Public Utility Holding
Company Act of 1935, the Federal Power Act, any state public utilities
code or to any other Governmental Rule limiting its ability to incur
indebtedness.
(j) Taxes. Guarantor has paid all taxes and other charges imposed
by any Governmental Authority due and payable by Guarantor other than
those which are being challenged in good faith by appropriate
proceedings and for which adequate reserves have been established.
4. Authorizations, Waivers, Etc.
(a) Authorizations. Guarantor authorizes Agent and the Banks, in
their discretion, without notice to Guarantor, irrespective of any
change in the financial condition of Borrower, Guarantor or any other
guarantor of the Guaranteed Obligations since the date hereof, and
without affecting or impairing in any way the liability of Guarantor
hereunder, from time to time to:
(i) Create new Guaranteed Obligations and renew,
compromise, extend, accelerate or otherwise change the time for
payment or performance of, or otherwise amend or modify the
Credit Documents or change the terms of the Guaranteed
Obligations or any part thereof, including increase or decrease
of the rate of interest thereon;
(ii) Take and hold security for the payment or
performance of the Guaranteed Obligations and exchange, enforce,
waive or release any such security; apply such security and
direct the order or manner of sale thereof; and purchase such
security at public or private sale;
F-2-5
<PAGE>
(iii) Otherwise exercise any right or remedy they may
have against Borrower, Guarantor, any other guarantor of the
Guaranteed Obligations or any security, including, without
limitation, the right to foreclose upon any such security by
judicial or nonjudicial sale;
(iv) Settle, compromise with, release or substitute any
one or more makers, endorsers or guarantors of the Guaranteed
Obligations; and
(v) Assign the Guaranteed Obligations, this Guaranty or
the other Credit Documents in whole or in part to the extent
provided in the Credit Agreement and the other Credit Documents.
(b) Waivers. Guarantor hereby waives:
(i) Any right to require Agent or any Bank to (A) proceed
against Borrower or any other guarantor of the Guaranteed
Obligations, (B) proceed against or exhaust any security received
from Borrower, Guarantor or any other guarantor of the Guaranteed
Obligations or otherwise marshall the assets of Borrower,
Guarantor or any other guarantor of the Guaranteed Obligations or
(C) pursue any other remedy in Agent's or any Bank's power
whatsoever;
(ii) Any defense arising by reason of the application by
Borrower of the proceeds of any borrowing;
(iii) Any defense resulting from the absence, impairment
or loss of any right of reimbursement, subrogation, contribution
or other right or remedy of Guarantor against Borrower, any other
guarantor of the Guaranteed Obligations or any security, whether
resulting from an election by Agent or any Bank to foreclose upon
security by nonjudicial sale, or otherwise;
(iv) Any setoff or counterclaim of Borrower or any
defense which results from any disability or other defense of
Borrower or the cessation or stay of enforcement from any cause
whatsoever of the liability of Borrower (including, without
limitation, the lack of validity or enforceability of any of the
Credit Documents);
(v) Any defense based upon any law, rule or regulation
which provides that the obligation of a surety must not be
greater or more burdensome than the obligation of the principal;
(vi) Until all obligations of Agent or any Bank to extend
credit to Borrower have terminated and all of the Guaranteed
Obligations have been fully, finally and indefeasibly paid, any
right of subrogation, reimbursement, indemnification or
contribution and other similar right to enforce any remedy which
Agent, the Banks or any other Person now has or may hereafter
have against Borrower on account of the Guaranteed Obligations,
and any benefit of,
F-2-6
<PAGE>
and any right to participate in, any security now or hereafter
received by Agent, any Bank or any other Person on account of the
Guaranteed Obligations;
(vii) All presentments, demands for performance, notices
of non-performance, notices delivered under the Credit Documents,
protests, notice of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation or incurring of new or
additional Guaranteed Obligations and notices of any public or
private foreclosure sale;
(viii) The benefit of any statute of limitations to the
extent permitted by law;
(ix) Any appraisement, valuation, stay, extension,
moratorium redemption or similar law or similar rights for
marshalling;
(x) Any right to be informed by Agent or any Bank of the
financial condition of Borrower or any other guarantor of the
Guaranteed Obligations or any change therein or any other
circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations;
(xi) Until all obligations of Agent or any Bank to extend
credit to Borrower have terminated and all of the Guaranteed
Obligations have been fully, finally and indefeasibly paid, any
right to revoke this Guaranty;
(xii) Any defense arising from an election for the
application of Section 1111(b)(2) of the United States Bankruptcy
Code which applies to the Guaranteed Obligations;
(xiii) Any defense based upon any borrowing or grant of a
security interest under Section 364 of the United States
Bankruptcy Code; and
(xiv) Any right it may have to a fair value hearing to
determine the size of a deficiency judgment following any
foreclosure on any security for the Guaranteed Obligations.
Without limiting the scope of any of the foregoing provisions of this
Paragraph 4, Guarantor hereby further waives (A) all rights and
defenses arising out of an election of remedies by Agent or any Bank,
even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a Guaranteed Obligation, has
destroyed Guarantor's rights of subrogation and reimbursement against
Borrower by the operation of Section 580d of the Code of Civil
Procedure or otherwise, (B) all rights and defenses Guarantor may have
by reason of protection afforded to Borrower with respect to the
Guaranteed Obligations pursuant to the antideficiency or other laws of
California limiting or discharging the Guaranteed Obligations,
including, without limitation, Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure, and (C) all other rights and
defenses available to Guarantor by reason of Sections 2787 to 2855,
inclusive,
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<PAGE>
Section 2899 or Section 3433 of the California Civil Code or Section
3605 of the California Commercial Code.
(c) Financial Condition of Borrower, Etc. Guarantor is fully
aware of the financial condition and affairs of Borrower. Guarantor has
executed this Guaranty without reliance upon any representation,
warranty, statement or information concerning Borrower furnished to
Guarantor by Agent or any Bank and has, independently and without
reliance on Agent or any Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of Borrower and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed
Obligations. Guarantor is in a position to obtain, and assumes full
responsibility for obtaining, any additional information about the
financial condition and affairs of Borrower and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed
Obligations and will, independently and without reliance upon Agent or
any Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own appraisals and
decisions in taking or not taking action in connection with this
Guaranty.
5. Subordination. Guarantor hereby subordinates any and all debts,
liabilities and obligations owed to Guarantor by Borrower (the "Subordinated
Obligations") to the Guaranteed Obligations as provided in this Paragraph 5.
(a) Prohibited Payments, Etc. Until the occurrence of a Default
or an Event of Default or any default by Guarantor hereunder, Guarantor
and its other Subsidiaries may receive regularly scheduled payments
from Borrower on account of Subordinated Obligations. After the
occurrence and during the continuance of any Default or Event of
Default or any default by Guarantor hereunder (including the
commencement and continuation of any Insolvency Proceeding relating to
Borrower), however, unless Agent otherwise requests, Guarantor shall
not, and shall not permit any of its Subsidiaries to, demand, accept or
take any action to collect any payment on account of the Subordinated
Obligations.
(b) Prior Payment of Guaranteed Obligations. In any Insolvency
Proceeding relating to Borrower, Guarantor agrees that Agent and the
Banks shall be entitled to receive payment of all Guaranteed
Obligations (including any and all Disallowed Post- Commencement
Interest and Expenses) before Guarantor or any of its Subsidiaries
receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of
any Default or Event of Default (including the commencement and
continuation of any Insolvency Proceeding relating to Borrower),
Guarantor and its Subsidiaries shall, if Agent so requests, collect,
enforce and receive payments on account of the Subordinated Obligations
as trustee for Agent and the Banks and deliver such payments to Agent
on account of the Guaranteed Obligations (including any and all
Disallowed Post- Commencement Interest and Expenses), together with any
necessary endorsements or
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<PAGE>
other instruments of transfer, but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this
Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Default or Event of Default or any default by
Guarantor hereunder (including the commencement and continuation of any
Insolvency Proceeding relating to Borrower), Agent is authorized and
empowered (but without any obligation to so do), in its discretion, (i)
in the name of Guarantor and its Subsidiaries, to collect and enforce,
and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Guaranteed Obligations
(including any and all Disallowed Post- Commencement Interest and
Expenses), and (ii) to require Guarantor (A) to collect and enforce,
and to submit claims in respect of, Subordinated Obligations and (B) to
pay any amounts received on such obligations to Agent for application
to the Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses).
6. General Pledge; Setoff.
(a) Pledge. In addition to all liens upon and rights of setoff
against the property of Guarantor given to Agent or any Bank by law or
separate agreement to secure the liabilities of Guarantor hereunder, to
the extent permitted by law, Guarantor hereby grants to Agent (for the
ratable benefit of Agent and the Banks), as security for Guarantor's
obligations hereunder, a security interest in all monies, deposit
accounts, securities and other property of Guarantor now or hereafter
in the possession of or on deposit with Agent or any Bank, whether held
in a general or special account or deposit, or for safekeeping or
otherwise; and Agent shall have all rights and remedies of a secured
party with respect to such property.
(b) Setoff. In addition to any rights and remedies of Agent or
any Bank provided by law, Agent and each Bank, with the prior consent
of Agent, shall have the right, without prior notice to Guarantor, any
such notice being expressly waived by Guarantor to the extent permitted
by applicable law, upon the occurrence and during the continuance of an
Event of Default, to set-off and apply against the Guaranteed
Obligations any amount owing from Agent or any Bank to Guarantor,
including all deposits, accounts and moneys of Guarantor then or
thereafter maintained with Agent or any Bank, at or at any time after,
the happening of any of the above mentioned events.
(c) Nonwaiver. No security interest or right of setoff shall be
deemed to have been waived by any act or conduct on the part of Agent
or any Bank or by any failure to exercise such right of setoff or to
enforce such security interest, or by any delay in so doing; and every
right of setoff and security interest shall continue in full force and
effect until such right of setoff or security interest is specifically
waived or released by an instrument in writing executed by Agent.
F-2-9
<PAGE>
7. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or
upon Guarantor, any Bank or Agent under this Guaranty or the other
Credit Documents to which Guarantor is a party shall be in writing and
faxed, mailed or delivered, if to Guarantor or Agent, at its respective
facsimile number or address set forth below or, if to any Bank, at the
address or facsimile number specified beneath the heading "Address for
Notices" under the name of such Bank in Schedule I to the Credit
Agreement (or to such other facsimile number or address for any party
as indicated in any notice given by that party to the other parties).
All such notices and communications shall be effective (i) when sent by
overnight service of recognized standing, on the second Business Day
following the deposit with such service; (ii) when mailed, first class
postage prepaid and addressed as aforesaid through the United States
Postal Service, upon receipt; (iii) when delivered by hand, upon
delivery; and (iv) when faxed, upon confirmation of receipt.
Guarantor: TSW International, Inc.
c/o The Indus Group, Inc.
60 Spear Street
San Francisco, CA 94105
Attn: Anna Ng-Borden
Telephone: (415) 904-3915
Facsimile: (415) 904-3920
Agent: Sumitomo Bank of California
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
Telephone: (415) 445-8713
Facsimile: (212) 296-9617
(b) Payments. Guarantor shall make all payments required
hereunder to Agent, or its order, at Agent's office located at the
address set forth in Subparagraph 7(a) hereof, or at such other office
as Agent may designate, on demand, in Dollars. If any amounts required
to be paid by Guarantor under this Guaranty are not paid when due,
Guarantor shall pay interest on the aggregate, outstanding balance of
such amounts from the date due until those amounts are paid in full at
a per annum rate equal to the Base Rate plus two percent (2.00%), such
rate to change from time to time as the Base Rate shall change.
(c) Expenses. Guarantor shall pay on demand (i) all reasonable
fees and expenses, including reasonable attorneys' fees and expenses,
incurred by Agent in connection with the preparation, execution and
delivery of, and the exercise of its duties under, this Guaranty and
the preparation, execution and delivery of amendments and waivers
hereunder and (ii) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Agent and the
Banks in connection with the
F-2-10
<PAGE>
enforcement or attempted enforcement of this Guaranty or any of the
Guaranteed Obligations or in preserving any of Agent's or the Banks'
rights and remedies (including, without limitation, all such fees and
expenses incurred in connection with any "workout" or restructuring
affecting the Credit Documents or the Guaranteed Obligations or any
bankruptcy or similar proceeding involving Guarantor, Borrower or any
of their affiliates).
(d) Waivers; Amendments. This Guaranty may not be amended or
modified, nor may any of its terms be waived, except by written
instruments signed by Guarantor and Agent. Each waiver or consent under
any provision hereof shall be effective only in the specific instances
for the purpose for which given. No failure or delay on Agent's or any
Bank's part in exercising any right hereunder shall operate as a waiver
thereof or of any other right nor shall any single or partial exercise
of any such right preclude any other further exercise thereof or of any
other right.
(e) Assignments. This Guaranty shall be binding upon and inure to
the benefit of Agent, the Banks and Guarantor and their respective
successors and assigns; provided, however, that Guarantor may not
assign or transfer any of its rights and obligations under this
Guaranty without the prior written consent of Agent and the Banks, and,
provided, further, that Agent or any Bank may sell, assign and delegate
their respective rights and obligations hereunder only as permitted by
the Credit Agreement. All references in this Guaranty to any Person
shall be deemed to include all permitted successors and assigns of such
Person.
(f) Cumulative Rights, etc. The rights, powers and remedies of
Agent and the Banks under this Guaranty shall be in addition to all
rights, powers and remedies given to Agent and the Banks by virtue of
any applicable law, rule or regulation of any Governmental Authority,
the Credit Agreement, any other Credit Document or any other agreement,
all of which rights, powers, and remedies shall be cumulative and may
be exercised successively or concurrently without impairing Agent's or
any Bank's rights hereunder. Guarantor waives any right to require
Agent or any Bank to proceed against any Person or to exhaust any
Collateral or to pursue any remedy in Agent's or such Bank's power.
(g) Payments Free of Taxes, Etc. All payments made by Guarantor
under this Guaranty shall be made by Guarantor free and clear of and
without deduction for any and all present and future taxes, levies,
charges, deductions and withholdings. In addition, Guarantor shall pay
upon demand any stamp or other taxes, levies or charges of any
jurisdiction with respect to the execution, delivery, registration,
performance and enforcement of this Guaranty. If any taxes, levies,
charges or other amounts are required to be withheld from any amounts
payable to Agent or any Bank hereunder, the amounts so payable to Agent
or such Bank shall be increased to the extent necessary to yield to
Agent or such Bank (after payment of all such amounts) any such amounts
payable hereunder in the amounts specified in this Guaranty. Upon
request by Agent or any Bank, Guarantor shall furnish evidence
satisfactory to Agent or such Bank that all requisite authorizations
and approvals by, and notices to and filings with, governmental
F-2-11
<PAGE>
authorities and regulatory bodies have been obtained and made and that
all requisite taxes, levies and charges have been paid.
(h) Partial Invalidity. If at any time any provision of this
Guaranty is or becomes illegal, invalid or unenforceable in any respect
under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Guaranty nor the
legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired
thereby.
(i) Governing Law. This Guaranty shall be governed by and
construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
(j) Jury Trial. EACH OF GUARANTOR, THE BANKS AND AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
GUARANTY.
(k) Limitation of Liability. NO CLAIM MAY BE MADE BY GUARANTOR
AGAINST AGENT, ANY BANK OR THE AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, ATTORNEYS OR AGENTS OF AGENT OR ANY BANK FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM
(WHETHER BASED UPON ANY BREACH OF CONTRACT, TORT, BREACH OF STATUTORY
DUTY OR ANY OTHER THEORY OF LIABILITY) ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS GUARANTY, OR ANY ACT, OMISSION OR
EVENT OCCURRING IN CONNECTION THEREWITH, AND GUARANTOR HEREBY WAIVES,
RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES,
WHETHER OR NOT NOW ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO
EXIST IN ITS FAVOR.
F-2-12
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
as of the day and year first above written.
TSW INTERNATIONAL, INC.
By:____________________________
Name:
Title:
F-2-13
<PAGE>
EXHIBIT G
COMPLIANCE CERTIFICATE
[Date]
Sumitomo Bank of California,
as Agent
320 California Street, Suite 600
San Francisco, CA 94104
Attn: Erik B. Larsen
1. Reference is made to that certain Credit Agreement, dated as of
September 2, 1997 (the "Credit Agreement"), among The Indus Group, Inc., a
California corporation ("Borrower"), the financial institutions listed in
Schedule I to the Credit Agreement (the "Banks") and Sumitomo Bank of
California, as agent for the Banks (in such capacity, "Agent"). Unless otherwise
indicated, all terms defined in the Credit Agreement have the same respective
meanings when used herein.
2. Parent on behalf of Borrower hereby certifies to the Agent and the
Lender Parties as follows:
(a) In connection with the preparation of the Financial
Statements of Parent for the [quarter][year] ended __________, ____
(the "Financial Statements"), the undersigned Chief Executive Officer
of Parent (the "Undersigned") has reviewed the terms of the Credit
Agreement and has made, or caused to be made, a detailed review of the
transactions and financial condition of Parent and its Subsidiaries
during the accounting period covered by the Financial Statements.
(b) The Undersigned did not discover during the course of such
reviews, and has no other knowledge of, any event or condition which
constitutes a Default or an Event of Default at the end of the
accounting period covered by the Financial Statements or as of the date
of this Compliance Certificate, except as follows:
[State "None" or describe in detail any event or condition
which constitutes a Default or an Event of Default, including
the period during which any such event or condition has
existed, and the action which Borrower proposes to take in
connection therewith.]
(c) Set forth in Attachment 1 hereto are true, complete and
accurate computations used in determining compliance with various
covenants set forth in Paragraph 5.03 of the Credit Agreement for the
period covered by the Financial Statements and as of the last day of
such period.
G-1
<PAGE>
IN WITNESS WHEREOF, Borrower has executed this Compliance Certificate
on the date set forth above.
INDUS INTERNATIONAL, INC.
By:____________________________
Name:
Title:
G-2
<PAGE>
EXHIBIT H
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of the date set forth at the top of
Attachment 1 hereto, by and among:
(1) The bank designated under item A of Attachment I hereto as
the Assignor Bank ("Assignor Bank"); and
(2) Each bank designated under item B of Attachment I hereto as
an Assignee Bank (individually, an "Assignee Bank").
RECITALS
A. Assignor Bank is one of the lenders which is a party to the Credit
Agreement dated as of September 2, 1997, by and among The Indus Group, Inc., a
California corporation ("Borrower,") Assignor Bank and the other financial
institutions parties thereto (collectively, the "Banks") and Sumitomo Bank of
California, as agent for the Banks (in such capacity, "Agent"). (Such credit
agreement, as amended, supplemented or otherwise modified in accordance with its
terms from time to time to be referred to herein as the "Credit Agreement").
B. Assignor Bank wishes to sell, and Assignee Bank wishes to purchase,
all or a portion of Assignor Bank's rights under the Credit Agreement pursuant
to Subparagraph 8.05(c) of the Credit Agreement.
AGREEMENT
Now, therefore, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise defined in this Assignment
Agreement, all capitalized terms used herein and defined in the Credit Agreement
have the respective meanings given to those terms in the Credit Agreement.
2. Sale and Assignment. Subject to the terms and conditions of this
Assignment Agreement, Assignor Bank hereby agrees to sell, assign and delegate
to each Assignee Bank and each Assignee Bank hereby agrees to purchase, accept
and assume the rights, obligations and duties of a Bank under the Credit
Agreement and the other Credit Documents equal to the Proportionate Share set
forth under the caption "Proportionate Share Transferred" opposite such Assignee
Bank's name on Attachment I hereto. Such sale, assignment and delegation shall
become effective on the date designated in Attachment I hereto (the "Assignment
Effective Date"), which date shall be, unless Agent shall otherwise consent, at
least five (5) Business Days
H-1
<PAGE>
after the date following the date counterparts of this Assignment Agreement are
delivered to Agent in accordance with Paragraph 3 hereof.
3. Assignment Effective Notice. Upon (a) receipt by Agent of five (5)
counterparts of this Assignment Agreement (to each of which is attached a fully
completed Attachment I), each of which has been executed by Assignor Bank and
each Assignee Bank (and, to the extent required by Subparagraph 8.05(c) of the
Credit Agreement, by Borrower and Agent) and (b) payment to Agent of the
registration and processing fee specified in Subparagraph 8.05(e) of the Credit
Agreement by Assignor Bank, Agent will transmit to Borrower, Assignor Bank and
each Assignee Bank an Assignment Effective Notice substantially in the form of
Attachment II hereto, fully completed (an "Assignment Effective Notice").
4. Assignment Effective Date. At or before 12:00 noon (local time of
Assignor Bank) on the Assignment Effective Date, each Assignee Bank shall pay to
Assignor Bank, in immediately available or same day funds, an amount equal to
the purchase price, as agreed between Assignor Bank and such Assignee Bank (the
"Purchase Price"), for the Proportionate Share purchased by such Assignee Bank
hereunder. Effective upon receipt by Assignor Bank of the Purchase Price payable
by each Assignee Bank, the sale, assignment and delegation to such Assignee Bank
of such Proportionate Share as described in Paragraph 2 hereof shall become
effective.
5. Payments After the Assignment Effective Date. Assignor Bank and each
Assignee Bank hereby agree that Agent shall, and hereby authorize and direct
Agent to, allocate amounts payable under the Credit Agreement and the other
Credit Documents as follows:
(a) All principal payments made after the Assignment Effective
Date with respect to each Proportionate Share assigned to an Assignee
Bank pursuant to this Assignment Agreement shall be payable to such
Assignee Bank.
(b) All interest, fees and other amounts accrued after the
Assignment Effective Date with respect to each Proportionate Share
assigned to an Assignee Bank pursuant to this Assignment Agreement
shall be payable to such Assignee Bank.
Assignor Bank and each Assignee Bank shall make any separate arrangements
between themselves which they deem appropriate with respect to payments between
them of amounts paid under the Credit Documents on account of the Proportionate
Share assigned to such Assignee Bank, and neither Agent nor Borrower shall have
any responsibility to effect or carry out such separate arrangements.
6. Delivery of Notes. On or prior to the Assignment Effective Date,
Assignor Bank will deliver to Agent the Notes payable to Assignor Bank. On or
prior to the Assignment Effective Date, Borrower will deliver to Agent new Notes
for each Assignee Bank and Assignor Bank, in each case in principal amounts
reflecting, in accordance with the Credit Agreement, their respective
Commitments (as adjusted pursuant to this Assignment Agreement). As provided in
Subparagraph 8.05(c) of the Credit Agreement, each such new Note shall be dated
the Closing Date. Promptly after the Assignment Effective Date, Agent will send
to each of
H-2
<PAGE>
Assignor Bank and the Assignee Banks its new Notes and will send to Borrower the
superseded Note payable to Assignor Bank, marked "Replaced."
7. Delivery of Copies of Credit Documents. Concurrently with the
execution and delivery hereof, Assignor Bank will provide to each Assignee Bank
(if it is not already a Bank party to the Credit Agreement) conformed copies of
all documents delivered to Assignor Bank on or prior to the Closing Date in
satisfaction of the conditions precedent set forth in the Credit Agreement.
8. Further Assurances. Each of the parties to this Assignment Agreement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Assignment Agreement.
9. Further Representations, Warranties and Covenants. Assignor Bank and
each Assignee Bank further represent and warrant to and covenant with each
other, Agent and the Banks as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, Assignor Bank 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 other Credit Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or the other Credit Documents furnished or the
Collateral or any security interest therein.
(b) Assignor Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of Borrower
or any of its obligations under the Credit Agreement or any other
Credit Documents.
(c) Each Assignee Bank confirms that it has received a copy of
the Credit Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement.
(d) Each Assignee Bank will, independently and without reliance
upon Agent, Assignor Bank or any other Bank and based upon 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 and the other Credit Documents.
(e) Each Assignee Bank appoints and authorizes Agent to take such
action as Agent on its behalf and to exercise such powers under the
Credit Agreement and the other Credit Documents as Agent is authorized
to exercise by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Section VII of
the Credit Agreement.
H-3
<PAGE>
(f) Each Assignee Bank agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the
Credit Agreement and the other Credit Documents are required to be
performed by it as a Bank.
(g) Attachment I hereto sets forth administrative information
with respect to each Assignee Bank.
10. Effect of this Assignment Agreement. On and after the Assignment
Effective Date, (a) each Assignee Bank shall be a Bank with a Proportionate
Share equal to the Proportionate Share set forth under the caption
"Proportionate Share After Assignment" opposite such Assignee Bank's name on
Attachment I hereto and shall have the rights, duties and obligations of such a
Bank under the Credit Agreement and the other Credit Documents and (b) Assignor
Bank shall be a Bank with a Proportionate Share equal to the Proportionate Share
set forth under the caption "Proportionate Share After Assignment" opposite
Assignor Bank's name on Attachment I hereto and shall have the rights, duties
and obligations of such a Bank under the Credit Agreement and the other Credit
Documents, or, if the Proportionate Share of Assignor Bank has been reduced to
0%, Assignor Bank shall cease to be a Bank and shall have no further obligation
to make any Loans.
11. Miscellaneous. This Assignment Agreement shall be governed by, and
construed in accordance with, the laws of the State of California. Paragraph
headings in this Assignment Agreement are for convenience of reference only and
are not part of the substance hereof.
H-4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers as of the
date set forth in Attachment I hereto.
______________________________, as
Assignor Bank
By:___________________________
Name:______________________
Title:_____________________
______________________________, as an
Assignor Bank
By:___________________________
Name:______________________
Title:_____________________
______________________________, as an
Assignor Bank
By:___________________________
Name:______________________
Title:_____________________
______________________________, as an
Assignor Bank
By:___________________________
Name:______________________
Title:_____________________
H-5
<PAGE>
CONSENTED TO AND ACKNOWLEDGED BY:
- ------------------------
By:___________________________
Name:______________________
Title:_____________________
- ---------------------------,
As Agent
By:___________________________
Name:______________________
Title:_____________________
ACCEPTED FOR RECORDATION
IN REGISTER:
- ---------------------------,
As Agent
By:___________________________
Name:______________________
Title:_____________________
H-6
<PAGE>
ATTACHMENT 1
TO ASSIGNMENT AGREEMENT
NAMES, ADDRESSES AND PROPORTIONATE SHARES
OF ASSIGNOR BANK AND ASSIGNEE BANKS
AND ASSIGNMENT EFFECTIVE DATE
--------------, ----
Proportionate Proportionate
Share Share After
A. ASSIGNOR BANK Transferred 1,2 Assignment 1
-------------------- --------------% ------------%
Applicable Lending Office:
----------------------------
----------------------------
----------------------------
----------------------------
Address for notices:
----------------------------
----------------------------
----------------------------
----------------------------
Telephone No: ___________
Telecopier No: ___________
Wiring Instructions:
----------------------------
----------------------------
- --------------
1 To be expressed by a percentage rounded to the [seventh]-digit to the right of
the decimal point.
2 Share of Total Commitment sold by Assignor Lender, and share of Total
Commitment purchased by Assignee Lender.
H(1)-1
<PAGE>
Proportionate Proportionate
Share Share After
A. ASSIGNOR BANK Transferred 1,2 Assignment 1
-------------------- --------------% ------------%
Applicable Lending Office:
----------------------------
----------------------------
----------------------------
----------------------------
Address for notices:
----------------------------
----------------------------
----------------------------
----------------------------
Telephone No: ___________
Telecopier No: ___________
Wiring Instructions:
----------------------------
----------------------------
- --------------
1 To be expressed by a percentage rounded to the [seventh]-digit to the right of
the decimal point.
2 Share of Total Commitment sold by Assignor Lender, and share of Total
Commitment purchased by Assignee Lender.
H(1)-2
<PAGE>
Proportionate Proportionate
Share Share After
A. ASSIGNOR BANK Transferred 1,2 Assignment 1
-------------------- --------------% ------------%
Applicable Lending Office:
----------------------------
----------------------------
----------------------------
----------------------------
Address for notices:
----------------------------
----------------------------
----------------------------
----------------------------
Telephone No: ___________
Telecopier No: ___________
Wiring Instructions:
----------------------------
----------------------------
- --------------
1 To be expressed by a percentage rounded to the [seventh]-digit to the right of
the decimal point.
2 Share of Total Commitment sold by Assignor Lender, and share of Total
Commitment purchased by Assignee Lender.
H(1)-3
<PAGE>
ATTACHMENT 2
TO ASSIGNMENT AGREEMENT
FORM OF
ASSIGNMENT EFFECTIVE NOTICE
Reference is made to the Credit Agreement, dated as of September 2,
1997, among The Indus Group, Inc., a California corporation ("Borrower"), the
financial institutions parties thereto (the "Banks") and Sumitomo Bank of
California, as agent for the Banks (in such capacity, "Agent"). Agent hereby
acknowledges receipt of five executed counterparts of a completed Assignment
Agreement, a copy of which is attached hereto. [Note: Attach copy of Assignment
Agreement.] Terms defined in such Assignment Agreement are used herein as
therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Assignment Effective Date will be __________.
2. Pursuant to such Assignment Agreement, Assignor Bank is required to
deliver to Agent on or before the Assignment Effective Date the Notes payable to
Assignor Bank.
3. Pursuant to such Assignment Agreement, Borrower is required to
deliver to Agent on or before the Assignment Effective Date the following Notes,
each dated _________________ [Insert appropriate date]:
[Describe each new Note for Assignor Bank and each Assignee Bank as to
principal amount.]
4. Pursuant to such Assignment Agreement, each Assignee Bank is
required to pay its Purchase Price to Assignor Bank at or before 12:00 Noon on
the Assignment Effective Date in immediately available funds.
Very truly yours,
SUMITOMO BANK OF CALIFORNIA,
as Agent
By:___________________________
Name:______________________
Title:_____________________
H(2)-1
<TABLE>
EXHIBIT 11.01
INDUS INTERNATIONAL, INC.
STATEMENT OF COMPUTATION OF
NET INCOME (LOSS) PER SHARE
(In thousands, except share amounts)
(Unaudited)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------- ---------------------
1997 1996 1997 1996
------- ------- ------- -------
<S> <C> <C> <C> <C>
Net income (loss) (A)........................................................ $(9,023) $ 2,311 $(3,554) $ 2,839
======= ======= ======= =======
Shares used in per share computation:
Weighted average outstanding ........................................... 29,432 26,411 28,158 25,191
Equivalent shares assumed to be outstanding had options
granted prior to 1995 been exercised and used to repurchase
shares at their then fair value ....................................... -- 3,435 -- 2,979
------- ------- ------- -------
29,432 29,846 28,158 28,170
======= ======= ======= =======
Net (loss) income per share ................................................. $ (0.31) $ (0.08) $ (0.13) $ 0.10
======= ======= ======= =======
<FN>
(A) Pro forma data as to the nine months ended September 30, 1996, historical data for other periods.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> Condensed consolidated balance sheet and the
condensed consolidated statement of operations
</LEGEND>
<CIK> 0001041333
<NAME> Indus International, Inc.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JUL-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 4,535
<SECURITIES> 20,854
<RECEIVABLES> 44,345
<ALLOWANCES> 1,868
<INVENTORY> 0
<CURRENT-ASSETS> 97,635
<PP&E> 29,483
<DEPRECIATION> 14,871
<TOTAL-ASSETS> 130,578
<CURRENT-LIABILITIES> 66,177
<BONDS> 0
0
0
<COMMON> 19
<OTHER-SE> 63,719
<TOTAL-LIABILITY-AND-EQUITY> 130,578
<SALES> 43,213
<TOTAL-REVENUES> 43,213
<CGS> 19,157
<TOTAL-COSTS> 29,654
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (533)
<INCOME-PRETAX> (6,131)
<INCOME-TAX> 2,105
<INCOME-CONTINUING> (8,236)
<DISCONTINUED> 0
<EXTRAORDINARY> (787)
<CHANGES> 0
<NET-INCOME> (9,023)
<EPS-PRIMARY> (0.31)
<EPS-DILUTED> (0.31)
</TABLE>
