SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
AMENDMENT NO. 5 TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
THE ASK GROUP, INC.
_______________________________________________________________________
(Name of Subject Company)
SPEEDBIRD MERGE, INC.
COMPUTER ASSOCIATES INTERNATIONAL, INC.
______________________________________________________________________
(Bidder)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
______________________________________________________________________
(Title of Class of Securities)
001903103
______________________________________________________________________
(CUSIP Number of Class of Securities)
SANJAY KUMAR
SPEEDBIRD MERGE, INC.
COMPUTER ASSOCIATES INTERNATIONAL, INC.
ONE COMPUTER ASSOCIATES PLAZA
ISLANDIA, NEW YORK 11788-7000
(516) 342-5224
______________________________________________________________________
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
COPIES TO:
JOHN P. GOURARY, ESQ.
HOWARD, DARBY & LEVIN
1330 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
TELEPHONE: (212) 841-1000
______________________________________________________________________
May 25, 1994
(Date Tender Offer First Published,
Sent or Given to Security Holders)
_____________________________________________________________________
Exhibit Index on Page 5
<PAGE> 2
Computer Associates International, Inc. (the "Buyer") and its wholly
owned subsidiary, Speedbird Merge, Inc., hereby amend and supplement their
combined Tender Offer Statement on Schedule 14D-1 and Statement on Schedule
13D, originally filed on May 25, 1994, as amended (the "Statement"), with
respect to an offer to purchase all outstanding shares of common stock, par
value $0.01 per share, of The ASK Group, Inc., a Delaware corporation, as set
forth in this Amendment No. 5. Capitalized terms not defined herein have the
meanings assigned thereto in the Statement.
This amendment constitutes the final amendment to the Schedule 14D-1
required by General Instruction D to Schedule 14D-1 and, pursuant to General
Instruction F of Schedule 14D-1, is deemed to satisfy the reporting
requirements of Section 13(d) of the Securities Exchange Act of 1934, as
amended, for all Shares acquired pursuant to the Offer as reported in this
amendment.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The response to Item 4(a) and (b) is hereby amended by the addition of
the following paragraph:
The $250 million Credit Agreement dated as of December 9, 1991 (the
"December 9, 1991 Credit Agreement") between the Buyer, as Borrower, the
banks and other financial institutions party thereto, as Banks, and Credit
Suisse, as Agent, as amended, has been replaced, effective June 21, 1994, by
two new $250 million Credit Agreements each dated as of June 21, 1994 and
entered into by the Buyer with the same banks and financial institutions as
were party to the December 9, 1991 Credit Agreement. Copies of the new
Credit Agreements are attached hereto as Exhibits (b)(1) and (2),
respectively, and are referred to herein, collectively, as the "New Credit
Agreements".
Each New Credit Agreement provides for borrowings by the Buyer of up to
an aggregate of $250 million of loans on an unsecured basis. Such loans are
repayable (with a right to reborrow) on the last day of each interest rate
period applicable thereto, with full and final repayment due on June 21, 1995
(in the case of loans under one New Credit Agreement) or June 21, 1997 (in
the case of loans under the other New Credit Agreement), unless extended, in
each case, by mutual agreement pursuant to annual evergreen provisions. The
loans under the New Credit Agreements will bear interest (at Buyer's option)
at (i) the relevant London interbank offered rate plus a margin varying
between 0.15% and 0.275% (depending on the applicable New Credit Agreement
and on the aggregate amount of loans outstanding under both New Credit
Agreements) or (ii) the higher of (x) the relevant Credit Suisse base lending
rate and (y) the relevant overnight federal funds rate plus 0.50%. Each New
Credit Agreement also includes customary covenants by the Buyer, including
consolidated net worth and leverage ratio covenants, that are similar to
those contained in the December 9, 1991 Credit Agreement.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
The response to Item 6(a) and (b) is hereby amended by
the addition of the following paragraph:
The information contained in the press release issued by
the Buyer on June 23, 1994, a copy of which is attached hereto as Exhibit
(a)(12), is incorporated herein by reference.
<PAGE> 3
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
The response to Item 11 is hereby amended by the addition
of the following Exhibits:
(a)(12) Text of press release issued by the Buyer dated June 23, 1994.
(b)(1) Credit Agreement dated as of June 21, 1994, between the Buyer,
as Borrower, the banks and other financial institutions party
thereto, as Banks, and Credit Suisse, as Agent.
(b)(2) Credit Agreement dated as of June 21, 1994, between the Buyer,
as Borrower, the banks and other financial institutions party
thereto, as Banks, and Credit Suisse, as Agent.
<PAGE> 4
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: June 23, 1994
SPEEDBIRD MERGE, INC.
By/s/ Belden A. Frease
------------------------------
Name: Belden A. Frease
Title: Vice President and Secretary
COMPUTER ASSOCIATES INTERNATIONAL, INC.
By/s/ Belden A. Frease
------------------------------
Name: Belden A. Frease
Title: Senior Vice President and Secretary
<PAGE> 5
EXHIBIT INDEX
Exhibit
Number Exhibit Name
(a)(12) Text of press release issued by the Buyer dated June 23, 1994.
(b)(1) Credit Agreement dated as of June 21, 1994, between the Buyer,
as Borrower, the banks and other financial institutions party
thereto, as Banks, and Credit Suisse, as Agent.
(b)(2) Credit Agreement dated as of June 21, 1994, between the Buyer,
as Borrower, the banks and other financial institutions party
thereto, as Banks, and Credit Suisse, as Agent.
Contact: Deborah Coughlin, (516) 342-2173
Vice President - Investor Relations
COMPUTER ASSOCIATES TENDER OFFER FOR THE ASK GROUP CLOSES
WITH MORE THAN 90 PERCENT ACCEPTANCE
ISLANDIA, N.Y., June 23, 1994 - Computer Associates International, Inc. (NYSE
Symbol: CA) today announced the expiration of the tender offer by its wholly
owned subsidiary, Speedbird Merge, Inc., for all of the outstanding shares
of The ASK Group, Inc. (NASDAQ Symbol: ASKI) common stock at a price of
$13.25 per share in cash. The offer expired at 12:00 midnight, (Eastern
Daylight Time), on Wednesday, June 22, 1994, and all shares validly tendered
(and not properly withdrawn) prior to such expiration have been
accepted for payment and will be paid for promptly.
Chemical Bank, as Depositary, has advised that approximately 23,295,000
shares were tendered in the offer prior to its expiration, which constitute
approximately 94 percent of the total number of outstanding shares
of common stock of The ASK Group.
Computer Associates has replaced, effective June 21, 1994, its $250 million
Credit Agreement dated as of December 9, 1991 with two new $250 million
Credit Agreements with the same banks and financial institutions that were
party to the December 9, 1991 Credit Agreement. The terms of the two new
Credit Agreements are similar to those of the December 9, 1991 Credit
Agreement, except that the interest rate margins payable by Computer
Associates have been reduced and that the final repayments are due June 21,
1995 (in the case of one Credit Agreement) and June 21, 1997 (in the case of
the other Credit Agreement) (unless, in each case, extended further by mutual
agreement pursuant to annual evergreen provisions). At May 17, 1994,
Computer Associates had cash and marketable securities of approximately
$337,000,000. Computer Associates will obtain all funds needed to
pay for the shares of the ASK Group accepted for payment in the tender offer
from its general corporate funds and by borrowing under these Credit
Agreements.
The pending merger of The ASK Group and Speedbird Merge will become effective
as soon as reasonably practicable after the satisfaction of the conditions
set forth in, and subject to the terms of, the Agreement and
Plan of Merger among The ASK Group, Speedbird Merge and Computer Associates
(including, without limitation, the resolution of certain matters and the
expiration of applicable notice periods, under certain of the ASK Group's
stock option plans). Once the pending merger becomes effective, The ASK
Group will become a wholly owned subsidiary of Computer Associates.
<PAGE> 2
COMPUTER ASSOCIATES TENDER OFFER FOR THE ASK GROUP CLOSES
The purchase price and associated charges will be allocated among the
identifiable tangible and intangible assets of The ASK Group based on their
fair market value at the acquisition date under the purchase method
of accounting for business combinations. The costs of purchased research and
development for that portion of the acquired technology that has not reached
the working model stage and has no alternative future use will be written off
against the Company's earnings in the first quarter ending June 30, 1994.
The after tax charge against earnings is initially projected to be
approximately $150 million, or approximately $.89 per share.
---------
Computer Associates with 7,000 employees around the world, is the leading
software company for integrated systems, database management, business
applications and application development solutions. These programs operate
across a full spectrum of mainframe, midrange and desktop computers.
Founded in 1976, CA became a public company in 1981 and now serves most of
the world's major business, government, research and educational
organizations. Fiscal year 1994 revenues exceeded $2.1 billion.
CREDIT AGREEMENT
between
COMPUTER ASSOCIATES INTERNATIONAL, INC.
as Borrower
and
THE BANKS AND OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
as Banks
and
CREDIT SUISSE
as Agent
(Short Term Revolver)
<PAGE> i
<TABLE>
TABLE OF CONTENTS
Page
<CAPTION> ----
ARTICLE I
<S> <C>
Definitions and Interpretation 1
Section 1.1 Defined Terms 1
Section 1.2 Computation of Time Periods 9
Section 1.3 Accounting Terms 9
Section 1.4 No Presumption Against Any Party 10
Section 1.5 Use of Certain Terms 10
Section 1.6 Headings and References 10
Section 1.7 Independence of Provisions 10
</TABLE>
<TABLE>
<CAPTION>
ARTICLE II
<S> <C>
Amounts and Terms of the Loans 11
Section 2.1 The Loans 11
Section 2.2 Repayment 13
Section 2.3 Interest on Loans 13
Section 2.4 Payments and Computations 16
Section 2.5 Fees 19
Section 2.6 Increased Costs and Capital
Requirements 19
Section 2.7 Taxes 21
Section 2.8 Additional Action in Certain Events 25
Section 2.9 Extension of Commitments 25
Section 2.10 Reduction or Termination of
Commitments 28
Section 2.11 Existing Credit Agreement 28
</TABLE>
<TABLE>
<CAPTION>
ARTICLE III
<S> <C>
Conditions of Commitments 29
Section 3.1 Conditions Precedent to Initial
Loans 29
Section 3.2 Conditions Precedent to Each Loan 31
</TABLE>
<PAGE> ii
<TABLE>
<CAPTION>
ARTICLE IV
<S> <C>
Representations and Warranties 32
Section 4.1 Representations and Warranties of
Borrowers 32
Section 4.2 Representations and Warranties
Restated 35
</TABLE>
<TABLE>
<CAPTION>
ARTICLE V
<S> <C>
Covenants of Credit Parties 35
Section 5.1 Affirmative Covenants 35
Section 5.2 Negative Covenants 39
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VI
<S> <C>
Events of Default 42
Section 6.1 Events of Default 42
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VII
<S> <C>
Relationship of Agent and Banks 45
Section 7.1 Authorization and Action 45
Section 7.2 Agent's Reliance, Etc. 45
Section 7.3 Agent and Affiliates 46
Section 7.4 Bank Credit Decision 46
Section 7.5 Indemnification 47
Section 7.6 Successor Agent 47
Section 7.7 Collateral 48
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VIII
<S> <C>
Miscellaneous 48
Section 8.1 Notices 48
Section 8.2 Successors and Assigns 49
Section 8.3 Amendments and Related Matters 49
Section 8.4 Costs and Expenses; Indemnification 49
Section 8.5 Oral Communications 50
Section 8.6 Entire Agreement 51
Section 8.7 Governing Law 51
Section 8.8 Severability 51
Section 8.9 Counterparts 51
<PAGE> iii
Section 8.10 Confidentiality 51
Section 8.11 Assignments and Participations 52
Section 8.12 Waiver of Trial by Jury 55
Section 8.13 Choice of Forum and Service of Process 55
Section 8.14 Remedies 56
Section 8.15 Right of Set-Off 56
Section 8.16 Effectiveness and Effect of Agreement 57
</TABLE>
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
Schedule 1 - Commitment Schedule
Schedule 2 - Existing Loans
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
Exhibit A - Assignment and Acceptance Agreement
Exhibit B - Compliance Certificate
Exhibit C - Notice of Borrowing
Exhibit D - Opinion of Borrowers' Counsel
</TABLE>
<PAGE> 1
CREDIT AGREEMENT
----------------
This CREDIT AGREEMENT, dated as of June 21, 1994,
is made by and between COMPUTER ASSOCIATES INTERNATIONAL,
INC., a Delaware corporation ("Borrower"), the banks and
other financial institutions parties hereto ("Banks"), and
CREDIT SUISSE, as agent for the Banks (in such capacity,
"Agent").
The parties hereto agree as follows:
ARTICLE I
Definitions and Interpretation
Section 1.1 Defined Terms. As used in this
Agreement:
"Affiliate" means, as to any Person, any other
Person directly or indirectly controlling or controlled by
or under common control with such Person.
"Agency Office" means the office of Agent
designated on the Commitment Schedule, or such other office
of Agent as Agent may from time to time designate by notice
to Borrower and the Banks.
"Agent" means Credit Suisse in its capacity as
agent for the Banks hereunder, any successor thereto in such
capacity.
"Alternate Credit Facility" shall mean the long-
term revolving Credit Agreement dated as of June 21, 1994
among Borrower, Credit Suisse as agent and certain banks and
financial institutions named therein, as it may be amended
or supplemented from time to time.
"Applicable Agent's Account" means the account of
Agent maintained at the Agency Office, or such other account
of Agent as may be hereafter from time to time designated by
Agent upon notice to the Borrower and the Banks, as the
account through which the Banks are to make Loans and the
Borrower is to repay Loans and to pay the other sums due
under this Agreement.
"Applicable Lending Office" means with respect to
each Bank the office of such Bank designated on the
Commitment Schedule, or in the Assignment and Acceptance
<PAGE> 2
Agreement or Additional Commitment Agreement pursuant to
which it became a Bank, or such other office of such Bank as
such Bank may from time to time designate by notice to
Borrower and the Agent.
"Assignee" has the meaning ascribed thereto in
Section 8.11.
"Assignment and Acceptance Agreement" means an
assignment and acceptance agreement, in compliance with
Section 8.11 and substantially in the form of Exhibit A
hereto.
"Bank Holding Company" means any Person that
directly or indirectly controls any Bank.
"Banks" means the banks and other financial
institutions signatory hereto in their capacity as Banks,
any Assignees hereafter added as Banks under one or more
Assignment and Acceptance Agreements pursuant to Section
8.11.
"Banking Day" means (a) a day on which banks are
not required or authorized to close in the city in which the
Agency Office or any Applicable Lending Office is located,
and, in matters relating to the determination of a
Eurodollar Rate or Interest Period, a day on which the
London interbank market deals in Dollar deposits, and (b)
with respect to a day on which a Notice of Borrowing is to
be given to Agent at the Agency Office or on which
notifications or other documents are to be received by, or
an action is required of, Agent at the Agency Office
pursuant to the provisions of this Agreement, a day on which
banks are not required or authorized to close in the city in
which the Agency Office is located.
"Base Rate" means a fluctuating rate per annum
(based on a year of 365 or 366 days, as the case may be, and
calculated on actual days elapsed) which is at all times
equal to the higher of (a) the rate per annum publicly
announced by Credit Suisse from time to time as its base
lending rate for commercial loans in Dollars in the United
States or (b) the Federal Funds Rate plus a margin of 0.50
percentage points, the Base Rate to change as and when such
rates change. The base lending rate is not the lowest rate
of interest charged by Credit Suisse in connection with
extensions of credit.
"Base Rate Loan" means any Loan during any period
that such Loan is bearing interest as provided in Section
2.3(a).
<PAGE> 3
"Closing Date" means the date on which the first
Loan under any Commitment is made.
"Commitment" means, as to any Bank, the amount set
forth opposite such Bank's name as its Commitment on the
Commitment Schedule, subject to adjustment for the effect of
any one or more Assignment and Acceptance Agreements to
which such Bank may be a party.
"Commitment Schedule" means the schedule attached
as Schedule 1 hereto.
"Compliance Certificate" means a certificate of,
and duly executed by, a Responsible Officer of Borrower in
the form of Exhibit B hereto.
"Consolidated Net Worth" means at any date of
determination thereof, all amounts that would, in conformity
with generally accepted accounting principles, be included
as shareholders' equity on a consolidated balance sheet of
Borrower and its Subsidiaries as of such date, in accordance
with generally accepted accounting principles.
"Control" (including the terms "controlling,"
"controlled by" and "under common control with") means the
possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a
Person whether through the ownership of voting securities,
by contract, or otherwise.
"Credit Documents" means this Agreement, the
Alternate Credit Facility, any Assignment and Acceptance
Agreements, and any certificates, opinions, warranties and
representations, assignments, guaranties, security
agreements, mortgages and deeds of trust and other documents
heretofore, now or hereafter delivered pursuant to or in
connection with any one or more of the foregoing.
"Debt" means (i) indebtedness for borrowed money,
(ii) obligations to pay the deferred purchase price of
property or services, (iii) obligations as lessee under
leases which shall have been or should be, in accordance
with generally accepted accounting principles, recorded as
capital leases, (iv) obligations evidenced by bonds,
debentures, notes, or equivalent instruments, (v)
reimbursement obligations in respect of drawings made or
available under letters of credit, (vi) obligations under
direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds
<PAGE> 4
referred to in clauses (i) through (v) above, (vii)
liabilities in respect of unfunded vested benefits under
plans covered by Title IV of ERISA, and (viii) withdrawal
liability incurred under ERISA to any Multiemployer Plan.
"Directive" means any Law, and any directive,
guideline or requirement of any governmental authority
(whether or not having the force of law), but, if not having
the force of law, the compliance with which is in accordance
with the general practice of the Person to whom the
Directive is addressed or applies.
"Dollar" and "$" means the lawful currency of the
United States of America.
"Effective Date" has the meaning given that term
in Section 8.16.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business
(whether or not incorporated) which is a member of a group
of which Borrower is a member and which is under common
control with Borrower within the meaning of the regulations
under Section 414 of the IRC.
"Eurocurrency Liabilities" has the meaning
specified in Regulation D promulgated by the Board of
Governors of the Federal Reserve System, as in effect from
time to time or any successor Directive.
"Eurodollar Rate" means, for each Interest Period
for each Eurodollar Rate Loan, the rate of interest per
annum (based on a year of 360 days and calculated on actual
days elapsed) equal at all times during such Interest Period
to the quotient (rounded to the nearest one-sixteenth of one
percent (0.0625%)) of (i) the rate of interest determined by
Agent to be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the rates at
which deposits in Dollars are offered by Reference Banks to
prime banks in the London interbank market at 10:00 a.m.
(New York City time) two Banking Days before the first day
such Interest Period for a period equal to such Interest
Period and in an amount as to each Reference Bank
substantially equal to the Eurodollar Rate Loan of such
Reference Bank divided by (ii) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such
Interest Period.
<PAGE> 5
"Eurodollar Rate Loan" means any Loan during any
period that such Loan is bearing interest as provided in
subclause (i) of Section 2.3(b).
"Eurodollar Rate Margin" means a margin of
(x) 0.20% per annum, if the aggregate amount of Tranche A
Loans and Tranche B Loans outstanding as of any date on
which a determination of the Eurodollar Rate Margin is to be
made hereunder is less than or equal to $250 million, or
(y) 0.275% per annum, in any other case.
"Eurodollar Rate Reserve Percentage" for each
Interest Period for each Eurodollar Rate Loan means the
reserve percentage applicable during such Interest Period
under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or any successor
(or, if different percentages shall be applicable during
different periods within such Interest Period, the daily
average of such percentages during such Interest Period) for
determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other
marginal reserve requirement, with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Event of Default" has the meaning specified in
Section 6.1.
"Existing Commitments" means, with respect to each
of the Existing Participating Banks, such Person's
Commitment under the Existing Credit Agreement.
"Existing Credit Agreement" means that certain
Credit Agreement, dated as of December 9, 1991, among
Borrower, Credit Suisse, as an Existing Participating Bank
and as agent for the Existing Participating Banks, and the
Existing Participating Banks, as banks, as amended.
"Existing Loans" means all Loans as defined in the
Existing Credit Agreement outstanding on the Effective Date
and set forth in Schedule 2 annexed to this Agreement.
"Existing Participating Banks" means each of
Credit Suisse, Chemical Bank, Mellon Bank, N.A., National
Westminster Bank USA, Shawmut Bank, N.A., The Fuji Bank
Limited, New York Branch, The Bank of Nova Scotia, The Bank
of New York and The Bank of Tokyo Trust Co. Ltd., as Banks
under the Existing Credit Agreement.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upwards, if necessary, to the nearest
<PAGE> 6
one-hundredth (1/100th) of one percent (1%)), equal to the
weighted average of the rates of overnight federal funds
transactions with members of the Federal Reserve System
arranged by federal funds brokers as published for such day
(or if such day is not a Banking Day, for the next preceding
Banking Day) by the Federal Reserve Bank of New York, or if
such rate is not so published for any day which is a Banking
Day, the average of the quotations for such day on such
transactions received by Agent from three (3) federal funds
brokers of recognized standing selected by Agent.
"Fees" has the meaning ascribed thereto in Section
2.5.
"Interest Period" means, for each Loan, the period
commencing on the date of such Loan and ending on the last
day of the period selected by Borrower with respect to Loans
made to it pursuant to the provisions of Section 2.1. The
duration of each such Interest Period shall be (i) in the
case of a Eurodollar Rate Loan, 1, 2, 3, 6, 9 or 12 months,
(ii) in the case of a Base Rate Loan, any period; provided,
however, that:
(i) Borrower may not select any Interest Period
which ends after the then existing Termination Date;
(ii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Banking Day, the
last day of such Interest Period shall be extended to occur
on the next succeeding Banking Day; provided, however, that,
with respect to any Interest Period for a Eurodollar Rate
Loan, if such extension would cause the last day of such
Interest Period to occur in the next following month, the
last day of such Interest Period shall occur on the next
preceding Banking Day.
"IRC" means the Internal Revenue Code of 1986, as
amended from time to time.
"Laws" means all federal, state, local or foreign
laws, rules, regulations and treaties, all judgments,
awards, orders, writs, injunctions or decrees issued by any
federal, state, local or foreign authority, court, tribunal,
agency or other governmental authority, or by any
arbitrator, all permits, licenses, approvals, franchises,
notices, authorizations and similar filings, by or with any
federal, state, local or foreign governmental authority and
all consent decrees or regulatory agreements with any
federal, state, local or foreign governmental authority.
<PAGE> 7
"Liens" means any lien, mortgage, security
interest, pledge, encumbrance, charge, conditional sale or
other title retention arrangement, or any undertaking or
arrangement with respect to property or rights (including a
"negative pledge") which has the practical effect of
preventing the grant of a security interest or lien securing
the Obligations.
"Loan" means any Loan made pursuant to Section
2.1.
"Majority Banks" means:
(a) As of any time before the Termination Date,
except during any period that an Event of Default pursuant
to Section 6.1(a) has occurred and is continuing, Banks
holding Commitments which collectively constitute more than
50% of the total Commitments; and
(b) As of any time on or after the Termination
Date, and during any period that an Event of Default
pursuant to Section 6.1(a) has occurred and is continuing,
Banks whose total outstanding Loans exceed 50% of the total
outstanding Loans of all Banks.
"Material Subsidiary" means any Person which is
(a) any Subsidiary of Borrower which holds any capital stock
of Borrower, or (b) a Subsidiary of Borrower which is a
"significant subsidiary", with respect to Borrower as
defined in Section 1-02(v) of Regulation S-X of the
Securities and Exchange Commission (17 C.F.R. 210.l-02(v))
as the same may be from time to time amended or the
equivalent definition under any successor or replacement
regulation of the Securities and Exchange Commission;
provided, however, that no Person which has at any time been
a Material Subsidiary by reason of clause (a) or (b) of the
above definition shall cease to be such a Material
Subsidiary for the purposes hereof unless Borrower has
theretofore given Agent notice of such change in status
pursuant to Section 5.l(h)(ix).
"Maturity Date" means with respect to each Loan,
the last day of the Interest Period applicable to such Loan.
"Multiemployer Plan" means a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA to which Borrower
or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make
contributions, such plan being maintained pursuant to one or
more collective bargaining agreements.
<PAGE> 8
"Notice of Borrowing" means a request by Borrower
for Loans pursuant to Section 2.1 and in the form of Exhibit
C hereto.
"Obligations" means any and all obligations,
indebtedness and liability of Borrower of every kind and
character, owed to Agent or Banks, arising directly or
indirectly out of or in connection with the Credit Documents
(including any modifications, amendments, extensions,
restatements or renewals of, supplements to, or
substitutions or replacements for, any one or more of the
Credit Documents), and including all such obligations,
indebtedness and liability, whether for principal, interest
(including interest that, but for the filing of a petition
in bankruptcy with respect to Borrower, would have accrued
on the Obligations), reimbursement obligations, fees, costs,
expenses, premiums, charges, attorneys' fees, indemnity,
whether heretofore, now, or hereafter made, incurred or
created, whether voluntarily or involuntarily and however
arising, whether or not due, whether absolute or contingent,
liquidated or unliquidated, or determined or undetermined,
and whether Borrower may be liable individually or jointly
with others.
"Person" means an individual, partnership,
corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision
or agency thereof.
"Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which either (i) is maintained
for employees of Borrower or an ERISA Affiliate and no
Person other than Borrower and its ERISA Affiliate, (ii) is
maintained for employees of Borrower or an ERISA Affiliate
and at least one Person other than Borrower and its ERISA
Affiliates, or (iii) was so maintained in respect of which
Borrower or an ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Reference Banks" means the New York City office
of Credit Suisse and the Pittsburgh, Pennsylvania office of
Mellon Bank or any substitute Reference Bank for either of
the foregoing from time to time selected by Agent with
Borrower's written consent (which consent shall not be
unreasonably withheld).
"Reportable Event" has the meaning assigned to
that term in Title IV of ERISA.
<PAGE> 9
"Responsible Officer" means, as to any Person, the
president, chief executive officer, chief operating officer,
chief financial officer, executive vice president,
treasurer, or controller of such Person, and as to Borrower,
such other officer of Borrower designated by a Responsible
Officer of Borrower by notice delivered to Agent.
"Subsidiary" means, as to any Person, any now
existing or hereafter organized corporation, partnership,
joint venture or other organization in which such Person,
directly or indirectly, owns beneficially or of record
equity securities (or securities currently convertible into
equity securities) which give such Person directly or
indirectly, upon conversion, exercise or otherwise, an
interest of 50 percent or more of any of the profits,
losses, capital or property of, or ordinary voting power in
respect of, such corporation, partnership, joint venture or
other organization.
"Termination Date" means June 20, 1995 or such
later date to which the Commitment may be extended pursuant
to Section 2.9 provided, however, that if the whole of the
Commitments are sooner terminated pursuant to Section 6.1 or
otherwise, then the Termination Date shall be such earlier
date of termination.
"Tranche A Commitment" means, with respect to any
Bank, the Commitment of such Bank to make Tranche A Loans.
"Tranche A Loan" means any Loan made pursuant to
this Agreement.
"Tranche B Commitment" means, with respect to any
Bank, the commitment of such Bank to make Tranche B Loans.
"Tranche B Loans" means any loans made pursuant to
the Alternate Credit Facility.
"Type" means, with respect to any Loan, a Base
Rate Loan or a Eurodollar Rate Loan.
Section 1.2 Computation of Time Periods. In this
Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including" and the word "to" and "until"
means "to but excluding".
Section 1.3 Accounting Terms. All accounting
terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles
<PAGE> 10
applied consistently with the financial statements
referenced in Section 4.1(k).
Section 1.4 No Presumption Against Any Party.
Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed or resolved against any Bank or
Borrower, whether under any rule of construction or
otherwise. On the contrary, this Agreement has been
reviewed by each of the parties and their counsel and shall
be construed and interpreted according to the ordinary
meaning of the words used so as to fairly accomplish the
purposes and intentions of all parties hereto.
Section 1.5 Use of Certain Terms. Unless the
context of this Agreement requires otherwise, the plural
includes the singular, the singular includes the plural, the
part includes the whole, "including" is not limiting, and
"or" has the inclusive meaning of the phrase "and/or." The
words "hereof," "herein," "hereby," "hereunder," and other
similar terms of this Agreement refer to this Agreement as a
whole and not exclusively to any particular provision of
this Agreement.
Section 1.6 Headings and References. Section and
other headings are for reference only, and shall not affect
the interpretation or meaning of any provision of this
Agreement. Unless otherwise provided, references to
Articles, Sections, Schedules, and Exhibits shall be deemed
references to Articles, Sections, Schedules and Exhibits of
this Agreement. References to this Agreement and any other
Credit Document include this Agreement and other Credit
Documents as the same may be modified, amended, restated or
supplemented from time to time pursuant to the provisions
hereof or thereof. A reference to a Person includes the
successors and assigns of such Person, but such successors
and assigns shall have rights under this Agreement only to
the extent permitted hereby.
Section 1.7 Independence of Provisions. All
agreements and covenants hereunder and under the other
Credit Documents shall be given independent effect such that
if a particular action or condition is prohibited by the
terms of any such agreement or covenant, the fact that such
action or condition would be permitted within the
limitations of another agreement or covenant shall not be
construed as allowing such action to be taken or condition
to exist.
<PAGE> 11
ARTICLE II
Amounts and Terms of the Loans
------------------------------
Section 2.1 The Loans.
(a) The Loan Commitments. Each Bank severally
agrees on the terms and conditions set forth in this
Agreement (including those of Article III hereof), to make
Loans, in each case, to the extent of its Commitment from
time to time on any Banking Day at the Applicable Lending
Office during the period from the date hereof until, but not
including, the Termination Date. Each Loan shall be made by
the Banks ratably according to each Bank's Commitment, and
shall be in an aggregate amount not less than $5,000,000 or
an integral multiple of $500,000 in excess thereof. Loans
may be borrowed, repaid or prepaid pursuant to Section 2.2,
and reborrowed (including a reborrowing for the purpose of
refunding an outstanding Loan in whole or in part) under
this Section 2.1.
(b) Notice of Borrowing. Each Loan shall be made
on a Notice of Borrowing given by Borrower to Agent at the
Agency Office not later than 12:00 Noon (local time in the
city where the Agency Office is situated) on (x) the third
Banking Day prior to the date of the proposed Loan, in the
case of any Eurodollar Rate Loan for which an Interest
Period of 1, 2, 3 or 6 months is specified in the Notice of
Borrowing, or (y) the fourth Banking Day prior to the date
of the proposed Loan, in the case of any Eurodollar Rate
Loan for which an Interest Period of 9 or 12 months is
specified in the Notice of Borrowing, or (z) the Banking Day
prior to the date of the proposed Loan, in the case of any
Base Rate Loan. The Agent shall give to each Bank prompt
notice thereof by telex, cable or telefacsimile, but in any
event, such notice shall be received by each Bank prior to
3:00 P.M. New York City time on the date Agent receives a
Notice of Borrowing. Each such Notice of Borrowing shall be
by telex, cable, telefacsimile, or telephone confirmed
promptly in writing, but in no event shall such written
confirmation be received by Agent later than 12:00 Noon
(local time in the city where the Agency Office is situated)
on the Banking Day prior to such Loan, specifying therein
(i) the date of such Loan, (ii) the aggregate amount of such
Loan, (iii) the requested interest rate option under Section
2.3(a) or (b) and (iv) Interest Period for the Loan. In the
event Borrower fails to specify an Interest Period for any
Loan, such Interest Period shall be for one month, unless
the Base Rate has been requested (or deemed selected) in
which case, such Interest Period shall be for 30 days. Each
Bank with respect to such Loan shall, before 12:00 Noon
<PAGE> 12
(local time in the city the Agency Office is situated) on
the date of such Loan, make available to Agent at the Agency
Office in same day funds in Dollars for credit to the
Applicable Agent's Account, such Bank's ratable portion of
such Loan and, unless Agent has been notified by a Bank
pursuant to Section 2.1(d) hereof that such Bank will not
make available its ratable portion of such Loan, Agent will
make such funds available to Borrower at the Agency Office
on the date of such Loan; provided, however, in no event
shall a Bank be required to make funds available to Agent
prior to 11:00 A.M. New York City time on the date of such
Loan.
(c) Notice of Borrowing Irrevocable. Each Notice
of Borrowing shall be irrevocable and binding on Borrower.
Borrower shall indemnify each Bank against any loss, cost or
expense incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of
Borrowing, the applicable conditions set forth in Article
III, including, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund the Loan to be made by
such Bank when such Loan, as a result of such failure, is
not made on such date.
(d) Agent's Reliance on Bank Loans. Unless Agent
shall have received notice from a Bank prior to the date of
any Loan, that such Bank will not make available to Agent
such Bank's ratable portion of such Loan (based on the
Commitments of each Bank hereunder), Agent may assume that
such Bank has made such portion available to Agent on the
date of such Loan in accordance with subsection (b) of this
Section 2.1, and Agent may, in reliance upon such
assumption, make available to Borrower on such date a
corresponding amount. If and to the extent that such Bank
shall not have so made such ratable portion available to
Agent, such Bank and Borrower severally agree to repay to
Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such
amount is made available to Borrower until the date such
amount is repaid to Agent, at (i) in the case of Borrower,
the interest rate applicable at the time to such Loan and
(ii) in the case of such Bank, the Federal Funds Rate. If
such Bank shall repay such amount to Agent, such repayment
shall constitute such Bank's ratable portion of such Loan
for purposes of this Agreement.
(e) Failure to Make Loan. The failure of any
Bank to make the Loan to be made by it shall not relieve any
other Bank of its obligation, if any, hereunder to make its
<PAGE> 13
Loan on the date of such Loan, 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 Loan.
(f) Notice of Interest Rate, Interest Period and
Type of Loan. Agent shall give prompt notice to Borrower
and the Banks of the applicable interest rate for such Loan
determined by Agent pursuant to Section 2.3 hereof as soon
as reasonably practicable after such rate is determined by
the Agent and in no event later than two Banking Days prior
to making such Loan in the case of any Eurodollar Rate Loan.
Such notice shall also provide the Interest Period.
Section 2.2 Repayment.
(a) Scheduled Repayments. Borrower shall (i)
repay each Loan on the Maturity Date for such Loan (such
repayment may be by reborrowing pursuant to the provisions
of Section 2.1 hereof to the extent Loans are then available
under the applicable Commitments and otherwise under the
provisions of this Agreement) and (ii) repay all its
outstanding Loans on the Termination Date and (iii) repay
such of its outstanding Loans as may be required at any time
or from time to time to assure that the principal balance of
all outstanding Loans does not exceed the aggregate
Commitments hereunder.
(b) Voluntary Prepayments. Upon at least three
Banking Days' notice to Agent by Borrower stating the
proposed date and aggregate principal amount of the
prepayment, Borrower may, and if such notice is given
Borrower shall, prepay the outstanding principal amount of
any Loan, as identified by Borrower in such notice, in whole
or in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid, as well as
any additional amount owed by Borrower pursuant to Section
2.3(c), provided that each partial prepayment shall be in an
aggregate amount of $1,000,000 or an integral multiple of
$500,000 in excess thereof.
Section 2.3 Interest on Loans.
(a) Base Rate Loans. Except to the extent that
Borrower shall have elected in the applicable Notice of
Borrowing to pay interest on any Loan for an Interest Period
pursuant to subsection (b) of this Section 2.3, and, in any
case, from and after the Maturity Date of each Loan,
Borrower shall pay interest on the unpaid principal amount
of each Loan made to Borrower, from the date of such Loan
until such principal amount is paid in full, at a
fluctuating interest rate per annum equal to the Base Rate,
<PAGE> 14
together with, in each case, any additional interest rate
margin as shall be applicable under subsection (f) of this
Section 2.3.
(b) Eurodollar Rate Loans. Borrower may, if no
Event of Default has occurred and is continuing and subject
to the provisions of this Section 2.3 (as of the date the
relevant Notice of Borrowing is required to be given
pursuant to Section 2.1), elect to pay interest on each Loan
made to Borrower during the Interest Period selected
therefor in the relevant Notice of Borrowing at a rate per
annum equal to the sum of the Eurodollar Rate for such
Interest Period plus the Eurodollar Rate Margin by selecting
the same in the Notice of Borrowing pursuant to which such
Loan was made received by the Agent as specified in Section
2.1(b), together with, in each case, any additional interest
rate margin as shall be applicable under subsection (f) of
this Section 2.3. From and after the Maturity Date of each
Interest Period for any Eurodollar Rate Loan and until
repaid, the unpaid principal balance thereof shall
automatically become, and bear interest as, a Base Rate
Loan.
(c) Breakage Expenses. If for any reason and at
any time or from time to time, including without limitation
voluntary prepayment of principal or payment of principal at
any accelerated maturity, the outstanding principal balance
of any Eurodollar Rate Loan is reduced in whole or in part
prior to the Maturity Date of the applicable Interest Period
by reason of the reduction of any Loan, then, in addition to
accrued interest thereon, Borrower shall pay to each Bank
for credit to the Applicable Agent's Account, on demand by
such Bank, (i) the amount by which the interest which would
have accrued on the amount of such principal reduction
subject to such Interest Period until such Maturity Date had
such principal reduction not been made, exceeds the interest
obtained by such Bank in the reemployment of such principal
reduction for the balance of such Interest Period (such
reemployment of funds to be at reasonable market rates
consistent with the customary practices of such Bank) and
(ii) any cancellation or similar fees incurred by or
allocated to lenders of funds borrowed by such Bank to carry
the unpaid principal sum thereof at the applicable
Eurodollar Rate, and a certificate as to such excess and
fees submitted by such Bank to Borrower shall, absent
manifest error, be final and conclusive.
(d) Eurodollar Rate Loans Not Available. In the
event that prior to the commencement of any Interest Period
for any Eurodollar Rate Loans, (x) Agent notifies Borrower
and each Bank that (1) adequate and fair means do not exist
<PAGE> 15
for Agent to ascertain the relevant Eurodollar Rate, or (2)
one or more of the Reference Banks or Agent, as applicable,
is not offering deposits in Dollars in the relevant
interbank market in the amount, at the time, or for the
Interest Period necessary fairly and adequately to determine
the relevant Eurodollar Rate, or (y) Banks whose Loans will
exceed 50% of all Loans, notify Agent (and Agent shall
promptly notify all other Banks and Borrower) that the
relevant Eurodollar Rate will not adequately reflect the
cost to the Banks giving such notification of making or
maintaining their Eurodollar Rate Loans for such Interest
Period, then, and in each such event, (i) the obligation of
the Banks to make such Type of Loan shall be suspended, and
(ii) all Loans on or after notice of such an event shall be
Base Rate Loans for the balance of the applicable Interest
Period, and, until Agent shall notify Borrower and the Banks
that the circumstances specified in clause (x) or (y) above
no longer continue, further Loans must be Base Rate Loans.
(e) Eurodollar Loans Unlawful. In the event that
any Bank shall have determined (which determination, absent
manifest error, shall be final and conclusive) that the
making or continuation of any interest rate based on the
Eurodollar Rate, has become unlawful (or impracticable by
compliance by such Bank in good faith with any Directive)
with respect to a Commitment of such Bank, then, and in any
such event, effective upon notice by such Bank to Agent and
Borrower and until such notice is rescinded, no such Type of
Loan shall be available under such Commitment with respect
to future Loans made by such Bank and any such existing
Eurodollar Rate Loan shall from and after such notice,
become a Base Rate Loan for the balance of the Interest
Period, and the Applicable Borrower shall pay to such Bank,
upon demand, any reasonable amounts necessary to compensate
such Bank in making such change in interest rates, including
any interest or fees payable by such Bank to lenders of
funds obtained by it in order to make or maintain such Loan,
and a certificate of such Bank as to such interest, fees and
other amounts to be conclusive absent manifest error;
provided, however, that (i) to the extent it may lawfully do
so without incurring any material penalty or increased
costs, such Bank shall continue the existing Eurodollar Rate
Loan until the Maturity Date of the relevant Interest
Period, and (ii) before such termination, such Bank shall
use reasonable efforts (consistent with internal policies
and applicable Directives) to designate a different
Applicable Lending Office if the making of such designation
would avoid such illegality and would not, in the judgment
of such Bank, be otherwise to its disadvantage.
<PAGE> 16
(f) Default Interest Rate. If an Event of
Default has occurred, then from and after the date of
occurrence of such Event of Default, and so long as such
Event of Default continues, the rate or rates of interest
applicable to the then and any subsequent outstanding Loans
shall in all cases be increased by an additional two
percentage points.
(g) Interest Payment Dates. Borrower shall pay
accrued interest on each Loan, determined and calculated as
herein provided, as follows: (i) interest accruing on each
Eurodollar Rate Loan during an Interest Period is payable on
(x) the Maturity Date for such Interest Period, and if such
Interest Period is for more than three months, then also on
the same day of each third month of such Interest Period as
corresponds to the first day of such Interest Period (and if
there is no such corresponding day of the month, then on the
last Banking Day of such month) or (y) the Termination Date,
if earlier; and (ii) interest accruing on each Base Rate
Loan during an Interest Period is payable on (x) the
Maturity Date for such Interest Period, and if such Interest
Period extends beyond the last Banking Day of any March,
June, September or December, then also on the last Banking
Day of each March, June, September or December during such
Interest Period or (y) the Termination Date, if earlier;
provided, however, that interest accruing on and after the
Termination Date shall be due and payable daily.
Section 2.4 Payments and Computations.
(a) Payments to Applicable Agent's Account.
Except as provided in Section 2.7, Borrower shall pay all
amounts due to Agent and Banks hereunder and under any other
Credit Document to which it is a party, without condition or
deduction for any counterclaim, defense, recoupment or
setoff, in Dollars and in same day funds delivered to Agent
not later than (i) 12:00 noon (local time in the city where
the Agency Office is situated) on the day when due by
deposit of such funds to the Applicable Agent's Account.
Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest, or
Fees ratably (other than amounts subject to Taxes pursuant
to Section 2.7 and Agent's Fees payable under Section
2.5(a)(i)), in accordance with the outstanding Loans of the
Banks (in the case of payments of principal or interest) or
the Commitments of the Banks (in the case of payments of
Fees, other than Agent's Fees payable under Section
2.5(a)(i)), to the Banks for the account of their respective
Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Bank to such Bank
for the account of its Applicable Lending Office to be
<PAGE> 17
applied in accordance with, and subject to, the terms of
this Agreement. Upon an Assignment and Acceptance Agreement
becoming effective as provided in Section 8.11 and recording
by Agent of the information contained therein in the
register maintained for purposes of this Agreement by Agent
at its Agency Office, from and after the effective date
specified in such Assignment and Acceptance Agreement, Agent
shall make all payments hereunder and under any other Credit
Document in respect of the interest assigned thereby to the
Assignee thereunder, and the parties to such Assignment and
Acceptance Agreement shall make all appropriate adjustments
in such payments for periods prior to such effective date
directly between themselves.
(b) Setoff. Borrower hereby authorizes each
Bank, if and to the extent payment owing to such Bank from
Borrower is not made when due hereunder to charge from time
to time against any or all of Borrower's accounts with such
Bank any amount so due.
(c) Interest Computations. (i) Computations of
interest for the Eurodollar Rate, and the Federal Funds
Rate, and computations of Fees, shall be made by Agent on
the basis of a year of 360 days, (ii) computations of
interest for the Base Rate shall be made by Agent on the
basis of a year of 365 or 366 days, as the case may be, and
(iii) all computations in every case shall be for the actual
number of days (including the first day but excluding the
last day) occurring in the period for which such interest or
Fees are payable. Each determination by Agent of an
interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Agent's Reliance on Borrower Payments.
Unless Agent shall have received notice from Borrower prior
to the date on which any payment is due to a Bank 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 Banks on such due
date an amount equal to the amount then due to such Banks.
If and to the extent Borrower shall not have so made such
payment in full to Agent, each Bank shall repay to Agent
forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date
such amount is distributed to such Bank until the date such
Bank repays such amount to Agent, at the Federal Funds Rate.
(e) Application of Payments. Amounts received by
Agent for application to the principal of any Loans shall be
applied (i) if received on or before the Termination Date
<PAGE> 18
(if not specified by Borrower or if received after the
occurrence and continuance of an Event of Default) first, to
the ratable payment of the outstanding Loans that constitute
Base Rate Loans, second, to the ratable payment of the
outstanding Loans that constitute Eurodollar Rate Loans and
(ii) if received after the Termination Date to the ratable
payment of all the outstanding Loans.
(f) Payments on Non-Banking Days. Whenever any
payment hereunder shall be stated to be due on a day other
than a Banking Day, such payment shall be made on the next
succeeding Banking Day (except as otherwise provided with
respect to the determination of Interest Periods), and such
extension of time shall in such case be included in the
computation of payment of interest or Fees, as the case may
be.
(g) Adjustments. If any Bank shall obtain any
payment whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise with respect to
principal, interest, or Fees due under the Credit Documents
(other than under Section 2.5(a)(i)), in excess of its
ratable share of payments on account of principal, interest,
or such Fees, as the case may be, then due and owing to all
Banks under the Credit Documents, such Bank shall forthwith
purchase from such other Banks such participations in the
principal, interest or such Fees, as the case may be, owing
to them as shall be necessary to cause such purchasing Bank
to share the excess payment with each of the Banks ratably,
in accordance with the outstanding Loans of other Banks (in
the case of payments on account of principal or interest) or
the Commitments of other Banks (in the case of payments on
account of Fees, other than Agent's Fees payable under
Section 2.5(a)(i)); provided, however, that if all or any
portion of such excess payment is thereafter recovered from
such Bank, such purchase from such other Banks shall be
rescinded and each such other Bank shall repay to the
purchasing Bank the purchase price to the extent of such
recovery, without interest. Borrower agrees that any Bank
purchasing a participation from another Bank pursuant to
this Section may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
setoff) with respect to such participation as fully as if
such Bank were the direct creditor of Borrower in the amount
of such participation.
(h) Loan Register. The indebtedness of Borrower
resulting from all Loans hereunder shall be evidenced by the
entries made in a register maintained by Agent at the Agency
Office; such register shall record (i) the date of and
amount of each Loan, the Type of each Loan and the Interest
<PAGE> 19
Period applicable thereto from time to time, (ii) the terms
of each Assignment and Acceptance Agreement delivered to and
accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from
Borrower to each Bank, (iv) the amount of any sum received
by Agent from Borrower under any Credit Document and each
Bank's share thereof, and (v) the interest rate for such
Loan. The entries made in such register shall evidence
Borrower's absolute and unconditional promise to pay
principal of and accrued interest on all Loans and shall be
conclusive and binding for all purposes, absent manifest
error.
Section 2.5 Fees.
(a) Fees Payable. Borrower shall pay the
following fees (the "Fees") at the Agency Office:
(i) To Agent, the Agent's fees in the amounts and
at the times specified in that certain agent fee letter
from Credit Suisse to Borrower, dated as of June 21,
1994; and
(ii) To each Bank, a facility fee equal to 10
basis points per annum of the amount of the Commitment
of such Bank on each date of calculation; such facility
fee shall commence to accrue on the Effective Date, and
continue until the Termination Date; the accrued
portion of such fee is payable in arrears on March 31,
June 30, September 30, and December 31 of each year,
commencing on September 30, 1994 and continuing until
the Termination Date, and on the Termination Date.
(b) Fees Nonrefundable. Borrower acknowledges
that all Fees (i) are fully earned on the date on which they
are payable, (ii) are nonrefundable when paid (exclusive of
double payments and other manifest errors), and (iii) are
for the sole account of the Person to whom payable.
Section 2.6 Increased Costs and Capital
Requirements. In the event that at any time or from time to
time after the date of this Agreement, any Directive, or a
change in any existing or future Directive (including any
change resulting from the operation of any transitional or
phase-in requirements), or in the interpretation or
application thereof by any governmental or judicial
authority, or any action pursuant thereto, or compliance by
Agent or any Bank or any Bank Holding Company with any
request or Directive imposed or modified by any central bank
or by any other financial, monetary or other governmental
authority:
<PAGE> 20
(a) Reserves and Charges. shall (i) impose,
increase, modify or apply any reserve (including basic,
supplemental, marginal and emergency reserves, but excluding
reserve requirements which are expressly included in the
determination of any interest rate pursuant to the
provisions hereof), special deposit, compulsory loan or
similar requirement against assets held by, or deposits or
other liabilities with or for the account of, or credit
extended by, or any other acquisition of funds by, any
office of Agent, any Bank or any Bank Holding Company; or
(ii) impose on Agent, any Bank or any Bank Holding Company
any fee, charge, tax (other than "Taxes," "Other Taxes," and
"Excluded Taxes" subject to the provisions of Section 2.7),
or condition with respect to this Agreement, any Commitment
or any part thereof, or any sums outstanding or payable
hereunder or thereunder; and the result of any of the
foregoing is to increase the cost to Agent, any Bank or any
Bank Holding Company of making or maintaining such
Commitment, or any Loan or to reduce the amount of any sum
received or receivable with respect to such Commitment, any
Loan or any interest, Fees or other sums payable hereunder,
then upon demand by Agent or such Bank, Borrower shall pay
with respect to any affected Commitment (including Loans
thereunder), promptly for the account of Agent or such Bank,
such additional amount or amounts as Agent or such Bank, in
good faith, certifies in writing to Borrower shall
compensate Agent, such Bank or Bank Holding Company for the
amount of such increased cost or reduced amount receivable,
such certification to be conclusive and binding for all
purposes hereof absent manifest error; or
(b) Capital Adequacy. shall impose, modify or
deem applicable any capital adequacy or similar requirement
(including without limitation a request or requirement which
affects the manner in which any Bank or any Bank Holding
Company allocates capital resources to its commitments,
including its obligations hereunder) and as a result
thereof, in the sole opinion of such Bank, the rate of
return on capital of such Bank or Bank Holding Company as a
consequence of its obligations hereunder is or will be
reduced to a level below that which such Bank or Bank
Holding Company could have achieved but for such
circumstances, then and in each such case upon notice to
Borrower through Agent, Borrower shall pay to such Bank such
additional amount or amounts as shall compensate such Bank
for such reduction in rate of return for (i) any Loans
outstanding under any Interest Period commencing after such
notification, (ii) any Loans bearing interest at the Base
Rate with respect to the period after the end of the
calendar month in which such notification was given, (iii)
any portion of the affected Bank's Commitment outstanding
<PAGE> 21
with respect to the period after the end of the calendar
month in which such notification was given. If a Bank
determines that it may be entitled to claim any additional
amounts pursuant to this subsection during the next
succeeding Interest Period or month, as the case may be, it
shall promptly notify, through Agent, Borrower and each
other Bank of the event by reason of which it has become so
entitled together with sufficient detail to quantify such
additional amount. A certificate as to any such additional
amount or amounts submitted by a Bank, through Agent, to
Borrower and the other Banks shall, in the absence of
manifest error, be final and conclusive. In determining
such amount, a Bank may use any reasonable averaging and
attribution methods.
Section 2.7 Taxes.
(a) Payments Free of Taxes. Subject to
subsection (e) below, any and all payments by Borrower
hereunder or any other Credit Document shall be made free
and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, (i) in the case of each Bank and Agent, taxes
imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank or Agent
(as the case may be) is organized or any political
subdivision thereof, (ii) in the case of each Bank with
respect to payments made under any Credit Document, taxes
imposed on its income, and franchise taxes imposed on it, by
the jurisdiction of such Bank's Applicable Lending Office,
or any political subdivision thereof and (iii) in the case
of each Bank and Agent, taxes imposed by the United States
by means of withholding taxes if and to the extent that such
withholding taxes shall be in effect and shall be applicable
on the date hereof under current laws and regulations
(including judicial and administrative interpretations
thereof) to payments to be made for the account of such
Bank's Applicable Lending Office, or to Agent (all taxes
described in subclauses (i), (ii) and (iii) being referred
to as "Excluded Taxes" and all taxes, levies, imposts,
deductions, charges, withholdings and liabilities not
described in subclauses (i), (ii) and (iii) being
hereinafter referred to as "Taxes"). If Borrower shall be
required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any other Credit Document
to any Bank or Agent, (i) the sum payable shall be increased
as may be necessary so that after making all required
deductions (including deductions applicable to additional
sums payable under this Section) such Bank or Agent (as the
case may be) receives an amount equal to the sum it would
<PAGE> 22
have received had not such deductions been made, (ii)
Borrower shall make such deductions, and (iii) Borrower
shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable
Law (and shall be entitled to any "Tax Credit" with respect
to such payment pursuant to Subsection (i) of this Section).
(b) Other Taxes. In addition, Borrower agrees to
pay any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies
(other than Excluded Taxes) which arise from any payment
made hereunder or any other Credit Document or from the
execution, delivery or registration or filing or recording
of, or otherwise with respect to, this Agreement or any
other Credit Document or document delivered hereunder or
under any other Credit Document (hereinafter referred to as
"Other Taxes").
(c) Tax Indemnity. Borrower will indemnify each
Bank and Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this
Section) paid by such Bank or Agent (as the case may be) and
any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days
from the date such Bank or Agent (as the case may be) makes
written demand therefor. If in the reasonable opinion of
Borrower or such Bank, any amount has been paid with respect
to Taxes or Other Taxes which are not correctly or legally
asserted, such Bank will cooperate with Borrower (such
cooperation to be without expense or liability to such Bank)
in seeking to obtain a refund of such amount; provided,
that, such Bank shall not be required to cooperate in
seeking to obtain a refund unless (i) if such Bank requests,
Borrower has delivered to such Bank an opinion of
independent tax counsel selected by Borrower and reasonably
acceptable to such Bank to the effect that there is a
reasonable possibility of success, (ii) such Bank has
received from Borrower satisfactory indemnification for any
liability, loss, cost or expense arising out of or relating
to the effort to obtain such refund, and (iii) Borrower
shall have indemnified such Bank for the payment of such
Taxes or Other Taxes pursuant to this subsection (c). Each
Bank and Agent, as the case may be, will promptly (within 30
days) notify Borrower of the assertion of any liability by
any taxing authority with respect to Taxes or Other Taxes
and any payment by such Bank or Agent of such Taxes or Other
Taxes; provided, that, the failure to give such notice shall
not relieve Borrower of its obligations hereunder to make
<PAGE> 23
indemnification for any such liability except that Borrower
shall not be liable for penalties or interest accruing after
such 30 day period until such time as it receives the notice
contemplated above, after which time it shall be liable for
interest and penalties accruing after such receipt.
(d) Evidence of Tax Payments. Within 30 days
after the date of any payment of Taxes, Borrower will (as to
Taxes paid by it) furnish to Agent, at the Agency Office,
the original or a certified copy of a receipt or other
evidence satisfactory to Agent of payment thereof.
(e) Tax Forms. On or before the Closing Date in
the case of each Bank originally a party hereto, or on or
before the effective date of the Assignment and Acceptance
Agreement pursuant to which it became a Bank in the case of
an Assignee, and within 30 days following the first day of
each calendar year or if otherwise reasonably requested from
time to time by Borrower or Agent, each Bank organized under
the laws of a jurisdiction outside the United States shall
provide Agent and Borrower with three counterparts of each
of the forms prescribed by the Internal Revenue Service
(Form 1001 or 4224, or successor form(s), as the case may
be) of the United States certifying as to such Bank's (if
applicable) status for purposes of determining exemption
from United States withholding taxes with respect to all
payments to be made to such Bank under any Credit Document.
Unless Borrower and Agent have received within 10 (ten) days
after Borrower or Agent requests such forms or other
documents satisfactory to them indicating that payments
under any Credit Document are not subject to United States
withholding tax, Borrower or Agent (if not withheld by
Borrower) shall withhold taxes from such payments at the
applicable statutory rate, without any obligation to "gross-
up" or make such Bank or Agent whole under subsection (a) of
this Section, provided, however, that, Borrower shall have
the obligation to make such Bank or Agent whole and to
"gross-up" under Subsection (a) of this Section, if the
failure to so deliver such forms or make such statements
(other than the forms and statements required to be
delivered on or made prior to the Closing Date or on the
effective date of the Assignment and Acceptance Agreement in
the case of an Assignee) is the result of the occurrence of
an event (including, without limitation, any change in Law)
which (alone or in conjunction with other events) renders
such forms inapplicable, that would prevent such Bank or
Agent from making the statements contemplated by such forms
or which removes or reduces an exemption (whether partial or
complete) from withholding tax previously available to such
Bank or Agent. Each Bank (and Agent, if applicable) will
promptly notify Borrower of the occurrence (when known to
<PAGE> 24
it) of an event contemplated by the foregoing proviso. Upon
request of Borrower, each Bank which is organized under the
laws of the United States or any State thereof shall provide
Borrower and Agent with two duplicates of a statement
conforming to the requirements of Treasury Regulation
1.1441-5(b) or any successor thereto and two duplicates of a
duly completed Form W-9 or successor form.
(f) Change of Applicable Lending Office. Any
Bank claiming any additional amounts payable pursuant to
this Section shall use its reasonable best efforts
(consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office, if the making of such a change
would avoid the need for or reduce the amount of, any such
additional amounts which may thereafter accrue and would
not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank.
(g) Survival. Without prejudice to the survival
of any other agreement of Borrower hereunder, the agreement
and obligations of Borrower contained in this Section shall
survive the payment in full of the Obligations hereunder for
a period expiring concurrently with the expiration of the
statute of limitations applicable to claims made by the tax
authorities to collect Taxes or Other Taxes.
(h) Maintenance of Tax Exemptions. Each Bank
(and Agent with respect to payments to Agent for its own
account) agrees that (i) it will take all reasonable actions
by all usual means to maintain all exceptions, if any,
available to it from the United States withholding taxes
(whether available by treaty, existing administrative
waiver, by virtue of the location of any Bank's Applicable
Lending Office or otherwise) and (ii) otherwise cooperate
with Borrower to minimize amounts payable by Borrower under
this Section; provided, however, that, each Bank and the
Agent shall not be obligated by reason of this subsection
(h) to disclose any information regarding its tax affairs or
tax computations or to reorder its tax or other affairs or
tax or other planning.
(i) Tax Credits. If any Bank shall receive a
credit or refund from a taxing authority with respect to,
and actually resulting from, an amount of Taxes or Other
Taxes actually paid to or on behalf of such Bank by Borrower
(a "Tax Credit"), such Bank shall promptly notify Borrower
of such Tax Credit. If such Tax Credit is received by such
Bank in the form of cash, such Bank shall promptly pay to
Borrower the amount so received with respect to the Tax
Credit. If such Tax Credit is not received by such Bank in
<PAGE> 25
the form of cash, such Bank shall pay the amount of such Tax
Credit not later than the time prescribed by applicable Law
for filing the return (including extensions of time) for
such Bank's taxable period which includes the period in
which such Bank receives the economic benefit of such Tax
Credit. In any event, the amount of any Tax Credit payable
by a Bank to Borrower pursuant to this subsection (i) shall
not exceed the actual amount of cash refunded to, or credits
received and usable by, such Bank from a taxing authority.
In determining the amount of any Tax Credit, a Bank may use
such apportionment and attribution rules as such Bank
customarily employs in allocating taxes among its various
operations and income sources and such determination shall
be conclusive absent manifest error. Borrower further
agrees promptly to return to a Bank the amount paid to
Borrower with respect to a Tax Credit by such Bank if such
Bank is required to repay, or is determined to be ineligible
for, a Tax Credit for such amount.
Section 2.8 Additional Action in Certain Events.
If any event or condition described in Section 2.6 or 2.7
has occurred or exists that increases the cost to Borrower
of the Loans by any Bank or Banks, such Bank or Banks and
Borrower, subject to Borrower's current payment of such
costs as herein provided, agree to negotiate in good faith
in order to reach a mutual agreement in respect of such
increased costs; provided, that, such Bank or Banks shall
not be required to so negotiate for a period in excess of 60
days after the date such Bank or Banks first notified
Borrower of such increased cost, and if Borrower and such
Bank or Banks are unable to reach a mutual agreement in
respect of such increased costs, Borrower shall pay such
amounts as are required to be paid pursuant to Section 2.6
or 2.7 hereof, as and when due; and provided, further,
Borrower shall have the right at any time to prepay in full
the affected Loans and terminate the Commitment of any Bank
or Banks so affected by such event or condition, upon giving
Agent and such Bank or Banks at least five Banking Days'
prior irrevocable notice thereof specifying the date of
prepayment and upon such prepayment and termination the
affected Commitment or Commitments shall be terminated. Any
such prepayment hereunder shall be made by Borrower, without
premium, together with interest thereon and any other
amounts payable hereunder, on the date specified in such
notice. Prepayments made under this Section, if not made on
a Maturity Date, shall be made together with the additional
payment for Interest Period breakage costs referred to in
Section 2.3.
Section 2.9 Extension of Commitments. (a) At
any time after August 31, 1994 and prior to October 31,
<PAGE> 26
1994, Borrower may, by notice to Agent, request an extension
of the Termination Date for the Commitments from the date
then constituting the Termination Date to August 31, 1995.
The Agent shall promptly notify each Bank of such request.
If all of the Banks consent in writing to such extension,
the Agent shall, within three Banking days of its receipt of
the last written consent, notify the Borrower in writing
that such request has been accepted and, upon the giving of
such notice, the Termination Date shall be so extended,
effective as of the close of business on the date such
notice if given. If the Agent fails to give such notice of
acceptance within such time or if all Banks fail to give
such written consents, the request for extension shall be
deemed rejected. If any Bank fails to give notice of
acceptance as herein provided, the request for extension
shall be deemed rejected by such Bank. If requested by any
Bank, the Agent shall, to the extent known by Agent, notify
such Bank of the status of the other Banks' Commitments. If
the written consent of all the Banks to any such request for
extension has not been received by the Agent on or before
the Banking Day which is thirty days after the Agent
notifies each Bank of Borrower's request for an extension
(the "1994 Extension Response Date"), Borrower may withdraw
its request for such extension any time thereafter. The
written consent of the Banks to any such request for
extension shall be in form and substance satisfactory to the
Agent in its sole discretion. Each Bank may accept, reject
or fail to act upon such request for extension in its sole
and absolute discretion; provided, however, that if any Bank
has failed to give its written consent to such extension to
Agent on or before the 1994 Extension Response Date, such
Bank shall, within three Banking Days after receipt of
notice from Agent requiring such assignment, assign such
Bank's rights and obligations under this Agreement and the
other Credit Documents to one or more Assignees (which may
be one or more Banks, including Agent in its capacity as a
Bank) designated by Agent, such assignment to be at par
(based on the non-consenting Bank's outstanding Loans and
accrued interest and Fees on the effective date of such
assignment) and to be made pursuant to subsections (a)
through (d) of Section 8.11 under one or more Assignment and
Acceptance Agreements, which shall be executed by such non-
consenting Bank upon the execution thereof by such Assignee
or Assignees. Nothing herein shall be deemed to impose any
obligation on Agent to issue any such notice requiring
assignment or to impose any obligation on any Bank
(including Agent in its capacity as a Bank) to become
assignees of such non-consenting Bank. Borrower shall pay
to any non-consenting Bank any amounts due pursuant to
Section 2.3(c) hereof, in respect of any assignment of
outstanding Eurodollar Rate Loans required to be made
<PAGE> 27
during any Interest Period. Notwithstanding the foregoing,
no extension of the Commitments shall be effective unless
the Tranche B Commitments shall have been simultaneously
extended by a period equal in duration to the period of the
extension hereunder.
(b) On or before the Banking Day which is sixty
days prior to a Termination Date in any year, Borrower may,
by notice to Agent, request an extension of the Termination
Date for the Commitments from the date then constituting the
Termination Date to any date not more than 364 days after
the earlier of (i) such Termination Date or (ii) the Renewal
Effective Date (as hereinafter defined). The Agent shall
promptly notify each Bank of such request. If all of the
Banks consent in writing to such extension, the Agent shall,
within three Banking days of its receipt of the last written
consent, notify the Borrower in writing that such request
has been accepted and, upon the giving of such notice, the
Termination Date shall be so extended, effective as of the
close of business on the date such notice if given (the
"Renewal Effective Date"). If the Agent fails to give such
notice of acceptance within such time or if all Banks fail
to give such written consents, the request for extension
shall be deemed rejected. If any Bank fails to give notice
of acceptance as herein provided, the request for extension
shall be deemed rejected by such Bank. If requested by any
Bank, the Agent shall, to the extent known by Agent, notify
such Bank of the status of the other Banks' Commitments. If
the written consent of all the Banks to any such request for
extension has not been received by the Agent on or before
the Banking Day which is thirty days prior to the
Termination Date (the "Extension Response Date"), Borrower
may withdraw its request for such extension any time
thereafter. The written consent of the Banks to any such
request for extension shall be in form and substance
satisfactory to the Agent in its sole discretion. Each Bank
may accept, reject or fail to act upon such request for
extension in its sole and absolute discretion; provided,
however, that if any Bank has failed to give its written
consent to such extension to Agent on or before the
Extension Response Date, such Bank shall, within three
Banking Days after receipt of notice from Agent requiring
such assignment, assign such Bank's rights and obligations
under this Agreement and the other Credit Documents to one
or more Assignees (which may be one or more Banks, including
Agent in its capacity as a Bank) designated by Agent, such
assignment to be at par (based on the non-consenting Bank's
outstanding Loans and accrued interest and Fees on the
effective date of such assignment) and to be made pursuant
to subsections (a) through (d) of Section 8.11 under one or
more Assignment and Acceptance Agreements, which shall be
<PAGE> 28
executed by such non-consenting Bank upon the execution
thereof by such Assignee or Assignees. Nothing herein shall
be deemed to impose any obligation on Agent to issue any
such notice requiring assignment or to impose any obligation
on any Bank (including Agent in its capacity as a Bank) to
become assignees of such non-consenting Bank. Borrower
shall pay to any non-consenting Bank any amounts due
pursuant to Section 2.3(c) hereof, in respect of any
assignment of outstanding Eurodollar Rate Loans required to
be made during any Interest Period. Notwithstanding the
foregoing, no extension of the Commitments shall be
effective unless the Tranche B Commitments shall have been
simultaneously extended by a period equal in duration to the
period of the extension hereunder.
Section 2.10 Reduction or Termination of
Commitments. On or after the Closing Date, Borrower may
upon at least three Banking Days' notice to Agent at the
Agency Office, terminate in whole at any time, or ratably
reduce from time to time by an aggregate amount of
$5,000,000 or an integral multiple thereof, the then
unutilized Commitments of the Banks; provided that any such
reduction or termination shall simultaneously reduce or
terminate both the unutilized Tranche A Commitment and the
unutilized Tranche B Commitment by an amount equal to (x) in
the case of the Tranche A Commitment, the product of (i) the
aggregate amount of such reduction or termination multiplied
by (ii) the fraction, the numerator of which is the total
amount of Tranche A Commitments then outstanding (prior to
giving effect to such reduction or termination), and the
denominator of which is the total amount of all Tranche A
and Tranche B Commitments then outstanding (prior to giving
effect to such reduction or termination) and (y) in the case
of the Tranche B Commitment, the product of (i) the
aggregate amount of such reduction or termination multiplied
by (ii) the fraction, the numerator of which is the total
amount of Tranche B Commitments then outstanding (prior to
giving effect to such reduction or termination), and the
denominator of which is the total amount of all Tranche A
and Tranche B Commitments then outstanding (prior to giving
effect to such reduction or termination). If the
Commitments are terminated in their entirety, all accrued
Fees thereon shall be payable on the effective date of such
termination.
Section 2.11. Existing Credit Agreement. On the
Effective Date, the Existing Credit Agreement shall be
terminated and the following provisions shall apply:
<PAGE> 29
(a) Existing Loans. All Existing Loans shall
become Loans of the same tenor made by Existing
Participating Banks which are Banks hereunder, as if such
Existing Loans were made in accordance with and pursuant to
this Agreement.
(b) Initial Loans. The initial Loans made under
this Agreement (other than Existing Loans deemed Loans under
Section 2.11(a) hereof) shall, notwithstanding any contrary
provision in Section 2.1(a) hereof, (i) reflect (x) that
Existing Loans shall be deemed Loans by Banks that were
Existing Participating Banks, (y) that certain Banks were
not Existing Participating Banks and have no Loans
outstanding as of the Effective Date, and (z) that the
Commitments of the Banks differ from the Existing
Commitments, and (ii) be made in a manner so that after
giving effect to the matters referred to in clause (i)
hereof, the aggregate Loans outstanding (including Existing
Loans and initial Loans) shall be made ratably by the Banks
according to each Bank's Commitment. All determinations
hereunder relating to the amount of any initial Loan to be
funded by each Bank in order to give effect to this Section
2.11(b) shall be made by the Agent and shall, absent
manifest error, be conclusive and binding for all purposes
of this Agreement.
(c) Existing Commitments. All Existing
Commitments shall be cancelled and cease to have any force
or effect.
(d) Fees. No fees shall accrue under Section 2.5
of the Existing Credit Agreement after the Effective Date.
All accrued fees under Section 2.5 of the Existing Credit
Facility through the Effective Date shall be paid in full on
the Effective Date.
(e) Other Obligations. The obligations of the
Borrower under Sections 2.5 through 2.7, 8.4, and 8.13
through 8.17 of the Existing Credit Agreement, inclusive,
and of the Existing Participating Banks under Section 7.5 of
the Existing Credit Agreement, shall survive the termination
of the Existing Credit Agreement.
ARTICLE III
Conditions of Commitments
-------------------------
Section 3.1 Conditions Precedent to Initial
Loans. The obligations of each Bank to make its initial
Loan is subject to the conditions precedent that Agent shall
<PAGE> 30
have received on or before the day of the initial Loan the
following, dated in the case of the certificates described
in clauses (a), (b) and (c) below on or after June 10, 1994,
and in all other cases, as of a date reasonably near the
Effective Date (except as otherwise specified herein), in
form and substance satisfactory to Agent:
(a) Certificate of Incorporation. A copy of the
certificate of incorporation of Borrower, and each amendment
thereto, certified by the secretary of State of Delaware as
being a true and correct copy thereof;
(b) Certificate of Good Standing. A certificate
of the secretary of State of Delaware listing the Borrower's
certificate of incorporation and each amendment thereto on
file in his office and certifying that (i) such amendments
are the only amendments to each such certificate of
incorporation on file in his office, (ii) Borrower has paid
all franchise taxes to the date of such Certificate and
(iii) Borrower is duly incorporated and in good standing
under the laws of such jurisdiction;
(c) Certificate of Qualification. A certificate
or equivalent document of the secretary of state of the
State of New York certifying that Borrower has duly
qualified to do business in such jurisdiction as a foreign
corporation and is in good standing under such
qualification;
(d) By-Laws and Resolutions. Copies of
Borrower's by-laws, of the resolutions of Borrower's Board
of Directors approving each Credit Document to which
Borrower is a party, and of all documents evidencing other
necessary corporate action and governmental approvals, if
any, with respect to each such Credit Document, certified as
true and correct in each case by a Responsible Officer of
Borrower;
(e) Incumbency Certificate. A certificate of a
Responsible Officer of Borrower certifying the names and
true signatures of the officers of Borrower authorized to
sign each Credit Document to which it is a party and the
other documents to be delivered by it hereunder;
(f) Opinion of Borrowers' Counsel. A favorable
opinion of counsel to Borrower, which counsel shall be
reasonably acceptable to Agent, substantially in the form of
Exhibit D hereto, and as to such other matters as Agent or
Majority Banks may reasonably request;
<PAGE> 31
(g) Closing Certificates. A Compliance
Certificate; and
(h) Fees. Payment in full of the Fees (including
amounts payable under Section 2.11(d) hereof) which are to
be paid on or before the Effective Date.
Section 3.2 Conditions Precedent to Each Loan.
The Commitment of each Bank to make each Loan shall be
subject to the further conditions precedent that on the date
of such Loan:
(a) the following statements shall be true (and
the delivery of a Notice of Borrowing shall be deemed to
constitute a representation and warranty by Borrower that on
the date of such Loan such statements are true):
(i) The representations and warranties contained
in Section 4.1 of this Agreement are correct on and as
of the date of such Loan, before and after giving
effect to such Loan, and to any other Loans to be made
contemporaneously therewith, and to the application of
the proceeds therefrom, as though made on and as of
such date; and
(ii) No event has occurred and is continuing, or
would result from such Loan or from any other Loans to
be made contemporaneously therewith, or from the
application of the proceeds therefrom, which
constitutes, or with the lapse of time or the giving of
notice or both would constitute, an Event of Default;
and
(iii) After giving effect to (x) such Loan together
with all other Loans to be contemporaneously made
therewith and (y) the repayment of any Loans which are
to be contemporaneously repaid at the time such Loan is
made, such Loan will not result in the then outstanding
total amount of all Loans exceeding the then total
amount of all Commitments; and
(b) Agent shall have received such other
approvals, opinions or documents as Agent or Majority Banks
may reasonably request.
<PAGE> 32
ARTICLE IV
Representations and Warranties
------------------------------
Section 4.1 Representations and Warranties of
Borrowers. Borrower represents and warrants as follows:
(a) Organization of Credit Parties. Borrower and
each Material Subsidiary of Borrower is duly organized and
existing under the Laws of the jurisdiction of its
formation, and is properly qualified to do business and in
good standing in, and where necessary to maintain its rights
and privileges has complied with the fictitious name statute
of, every jurisdiction where the failure to maintain such
qualification, good standing or compliance could reasonably
be expected to materially adversely affect Borrower's
ability to perform its obligations hereunder and under any
other Credit Document.
(b) Authorization of Credit Documents. The
execution, delivery and performance of this Agreement and
all other Credit Documents to which Borrower is a party are
within Borrower's powers and have been duly authorized.
This Agreement has been validly executed and delivered on
behalf of Borrower.
(c) Government Approvals. No approval, consent,
exemption or other action by, or notice to or filing with,
any governmental authority or other Person is necessary in
connection with the execution, delivery, performance or
enforcement of this Agreement or any other Credit Document,
except as may have been obtained and certified copies of
which have been delivered to each Bank.
(d) No Conflicts. The execution, delivery and
performance of this Agreement and the other Credit Documents
will not (i) violate (A) the certificate of incorporation or
by-laws (or comparable documents) of Borrower or any
Subsidiary, (B) any Law or (C) any provision of any
contract, agreement, indenture or instrument to which
Borrower or any Subsidiary is a party or by which any of its
properties is bound or (ii) be in conflict with, or result
in a breach of or constitute a default under, any contract,
agreement, indenture or instrument referred to in (d)(i)(C)
above, or (iii) result in the creation or imposition of any
Lien, except Liens permitted under Section 5.2(a) hereof.
(e) Enforceability of Credit Documents. This
Agreement is, and each other Credit Document to which
Borrower is a party when delivered hereunder will be, a
legal, valid and binding agreement of Borrower enforceable
<PAGE> 33
against Borrower in accordance with their respective terms,
except for bankruptcy and similar laws affecting the
enforcement of creditors' rights generally and for the
availability of equitable remedies where equitable remedies
are sought.
(f) Title to Property. Borrower and each
Subsidiary of Borrower has good and marketable title to its
properties and assets free and clear of all Liens or rights
of others, except for (i) Liens permitted by Section 5.2(a)
and (ii) Liens directly or indirectly securing the
Obligations.
(g) Compliance with Law. Borrower and each
Subsidiary is in compliance with all applicable Laws,
including, without limitation, those relating to hazardous
materials or wastes or hazardous or toxic substances, where
the failure to maintain such compliance could reasonably be
expected to materially adversely affect Borrower's
consolidated financial condition or results of operations
from that which existed on the date of the financial
statements referenced in subsection (k) of this Section or
Borrower's ability to perform its obligations hereunder or
under any other Credit Document.
(h) No Litigation. Except as disclosed in the
notes to Borrower's financial statements referred to in
subsection (k) of this Section, there are no suits,
proceedings, claims or disputes (including, without
limitation, those alleging violation of any applicable Law
relating to hazardous materials or wastes, or hazardous or
toxic substances) pending or, to the knowledge of Borrower,
threatened, against or affecting Borrower or any of its
properties or assets, or any Subsidiary of Borrower or any
of its property or assets, which could reasonably be
expected to materially adversely affect Borrower's
consolidated financial condition or results of operations as
compared to the date of the financial statements referenced
in subsection (k) of this Section or Borrower's ability to
perform its obligations hereunder or under any other Credit
Document.
(i) Events of Default. No event has occurred or
would result from the incurring of obligations by Borrower
under this Agreement or any other Credit Document which is,
or upon the lapse of time or notice or both would become, an
Event of Default.
(j) Subsidiaries. All Material Subsidiaries of
Borrower and the nature and extent of Borrower's ownership
interest therein have been heretofore disclosed in writing
<PAGE> 34
to Agent and the Banks in accordance with Section
5.1(h)(ix)(D) or otherwise.
(k) Financial Information. All financial
statements dated March 31, 1994, information and data
furnished by Borrower to Agent or Banks are complete, and
such financial statements have been prepared in accordance
with generally accepted accounting principles consistently
applied and fairly present the consolidated financial
condition and results of operations of Borrower as of such
date, and when compared to such financial condition and
results of operation on such date, (a) there has been no
material adverse change in Borrower's consolidated financial
condition or results of operations or ability to perform its
obligations under this Agreement or any other Credit
Documents, and (b) neither Borrower nor any Subsidiary has
any contingent obligations, liabilities for taxes or other
outstanding financial obligations, other than the
Obligations, which are material, except as disclosed in such
statements, information and data.
(l) Margin Regulations. (i) Borrower and its
Subsidiaries are not engaged in the business of extending
credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation G, T, U, or X of the
Board of Governors of the Federal Reserve System), (ii) no
proceeds of any Loan will be used in a manner which would
violate, or result in a violation of, such Regulation G, T,
U, or X, and (iii) after applying the proceeds of any Loan,
and the proceeds of all other Loans made on or before the
time of making such Loan, not more than 25 percent of the
value (as determined in accordance with generally accepted
accounting principles as consistently applied by Borrower --
unless some other method of valuation is required to be used
for the purpose of determining the applicability of the
exclusion of 12 CFR 221.2(g)(2)(i), and then as determined
by such other method of valuation) of the assets and
properties of the Borrower subject to Section 5.2(a) is
represented by margin stock.
(m) ERISA. There are no Plans or Multiemployer
Plans.
(n) Investment Company Act. Neither Borrower nor
any Subsidiary is an "investment company" or a company
"controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended. Neither
Borrower nor any Subsidiary is a "holding company" or a
"subsidiary" of a "holding company" as defined in the Public
Utility Holding Act of 1935, as amended.
<PAGE> 35
(o) Taxes. Borrower and each of its Subsidiaries
has filed or caused to be filed all tax returns which to the
knowledge of Borrower are required to be filed, and has paid
all taxes shown to be due and payable on said returns or any
assessments made against it or any of its property and all
other taxes, fees and other charges imposed on it or on any
of its property by any governmental authority (other than
those the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with
respect to which reserves and conformity with generally
accepted accounting principles have been provided on the
books of Borrower or its Subsidiaries, as the case may be);
and, to the knowledge of Borrower, no claims are being
asserted with respect to any such taxes, fees or other
charges which are material either as to amount or
potentially adverse affect when considered with respect to
the financial and business condition of Borrower and its
Subsidiaries taken as a whole.
Section 4.2 Representations and Warranties
Restated. The representations and warranties contained in
Section 4.1 hereof and in any instrument, agreement or
certificate executed and delivered in connection herewith
shall be deemed to be made on and as of the date of each
Loan.
ARTICLE V
Covenants of Credit Parties
---------------------------
Section 5.1 Affirmative Covenants. So long as
any Obligations shall remain outstanding or any of the
Commitments shall remain available hereunder, Borrower will,
unless Majority Banks shall otherwise consent in writing:
(a) Payment of Taxes, Etc. Pay and discharge,
and cause each of its Subsidiaries to pay and discharge,
before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon
it or upon its property, and (ii) all lawful claims which,
if unpaid, might by Law become a Lien upon its property;
provided, however, that neither Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim which is being contested in
good faith and by proper proceedings and as to which
adequate reserves have been established.
(b) Maintenance of Insurance. Maintain, and
cause each of its Subsidiaries to maintain, or cause to be
maintained for each of its Subsidiaries, with responsible
<PAGE> 36
and reputable insurance companies or associations acceptable
to Majority Banks insurance in such amounts and covering
such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same
general areas in which Borrower or any Subsidiary operates.
(c) Preservation of Corporate Existence, Etc.
Preserve and maintain, and cause each Material Subsidiary to
preserve and maintain, (i) its corporate existence, rights
(charter and statutory), and franchises, and (ii) in the
case of Borrower, Borrower ownership and control of all
Material Subsidiaries, and will continue, and cause each
Material Subsidiary to continue, in the business of
designing and licensing the use of computer software
products and employ all of its and their respective assets
in such business.
(d) Compliance with Laws, Etc. Comply, and cause
each of its Subsidiaries to comply, with the requirements of
all applicable Laws noncompliance with which could
materially adversely affect its business or credit.
(e) Visitation Rights. At any reasonable time
and from time to time, permit Agent or any of Banks or any
agents or representatives thereof, to examine (at the
location where normally kept) and make abstracts from the
records and books of account of, and visit the properties of
Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of Borrower and its Subsidiaries with
any of their respective officers or directors and discuss
the affairs, finances and accounts of Borrower and its
Subsidiaries with its independent certified public
accountants and permit such accountants to disclose to Agent
or any of Banks any and all financial statements and other
reasonably requested information of any kind that they may
have with respect to Borrower and its Subsidiaries.
(f) Keeping of Books. Keep, and cause each of
its Subsidiaries to keep, proper books of record and
account, in which full and correct entries shall be made of
all financial transactions and the assets and business of
Borrower and its Subsidiaries in a form, in the case of
Borrower, such that Borrower may readily produce no less
frequently than at the end of each of its fiscal quarters,
financial statements on a consolidated basis in accordance
with generally accepted accounting principles consistently
applied (subject, in the case of the first three fiscal
quarters of each fiscal year, to year end audit
adjustments).
<PAGE> 37
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties which are used or useful in
the conduct of its business in good working order and
condition, ordinary wear and tear excepted, including all
copyrights, trademarks, service marks, mask works, trade
names, brands, patent rights, processes, designs and other
intellectual property, and all registrations and
applications for registration thereof, and any licenses with
respect to any of the foregoing which are used or useful in
the conduct of its business.
(h) Reporting Requirements. Furnish to Agent and
each Bank:
(i) Quarterly Financial Statements of Company.
As soon as available and in any event within 45 days
after the end of each of the first three fiscal
quarters of each fiscal year of Borrower, consolidated
balance sheets of Borrower and its Subsidiaries as of
the end of such quarter and consolidated statements of
income and retained earnings of Borrower and its
Subsidiaries for the period commencing at the beginning
of such fiscal year and ending with the end of such
quarter, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by a
Responsible Officer of Borrower as having been prepared
in accordance with generally accepted accounting
principles consistently applied, together with a
Compliance Certificate as of the end of such fiscal
quarter;
(ii) Annual Financial Statements of Company. As
soon as available and in any event within 90 days after
the end of each fiscal year of Borrower, the
consolidated balance sheets of Borrower and its
Subsidiaries as of the end of such fiscal year and the
consolidated statements of income and retained earnings
and the consolidated statements of cash flow of
Borrower and its Subsidiaries for such fiscal year, in
the case of such consolidated financial statements,
certified, without material qualifications or
limitations as to scope of the audit, by Ernst & Young
or other independent public accountants of recognized
standing acceptable to Majority Banks, as having been
prepared in accordance with generally accepted
accounting principles, consistently applied, together
with a Compliance Certificate as of the end of such
fiscal year;
<PAGE> 38
(iii) Notice of Defaults. As soon as possible and
in any event within five days after the occurrence of
each Event of Default and each event which, with the
giving of notice or lapse of time, or both, would
constitute an Event of Default, continuing on the date
of such statement, a statement of a Responsible Officer
of Borrower setting forth details of such Event of
Default or event and the action which Borrower has
taken and proposes to take with respect thereto;
(iv) Shareholder Reports and SEC Filings. Promptly
after the sending or filing thereof, copies of all
reports which Borrower sends to any of its security
holders, and copies of all reports and registration
statements which Borrower files with the Securities and
Exchange Commission or any national securities
exchange;
(v) PBGC Notices. Promptly and in any event
within two Banking Days after receipt thereof by
Borrower or any of its ERISA Affiliates from the
Pension Benefit Guaranty Corporation, copies of each
notice received by Borrower or any such ERISA Affiliate
of the intention of the Pension Benefit Guaranty
Corporation to terminate any Plan or to have a trustee
appointed to administer any Plan;
(vi) Litigation. Promptly after the commencement
thereof, notice of all material actions, suits and
proceedings before any court or governmental
department, commission, board, bureau, agency, or
instrumentality domestic or foreign, affecting Borrower
of the type described in Section 4.1(h) which is known
to Borrower or in respect of which Borrower or any
Subsidiary has been served;
(vii) Indenture Reports. Promptly after the
furnishing thereof, copies of any statement or report
furnished to any holder of the securities of Borrower
or any Subsidiary of Borrower pursuant to the terms of
any indenture or similar agreement and not otherwise
required to be furnished to the Banks pursuant to any
other clause of this Section 5.1(h);
(viii) Additional Information. Such other
information respecting the condition or operations,
financial or otherwise, of Borrower or any Subsidiary
as Majority Banks may from time to time reasonably
request; and
<PAGE> 39
(ix) Significant Events. Promptly upon Borrower's
knowledge thereof, a written statement from a
Responsible Officer of Borrower describing the details
of:
(A) any substantial dispute which may exist
between Borrower or any Subsidiary and any
governmental regulatory body or law enforcement
authority;
(B) any labor controversy resulting in or
threatening to result in a strike or work stoppage
or slowdown against Borrower or its Subsidiaries;
(C) any Material Subsidiary of Borrower
ceasing to be such a Material Subsidiary and the
reasons for such change in status;
(D) any Person becoming a Material
Subsidiary and the reasons why such Person has
become a Material Subsidiary;
(E) any proposal by any public authority to
acquire the assets or business of Borrower or any
Material Subsidiary or to compete with Borrower or
any Material Subsidiary; and
(F) any matter which has resulted or might
reasonably be contemplated to result in a material
adverse change in (l) Borrower's consolidated
financial condition or results of operations or
(2) Borrower's ability to perform its obligations
hereunder or under any other Credit Document.
(i) Use of Loans. Use the proceeds of the Loans
(i) for working capital, and (ii) for the acquisition of
capital stock of a Person or assets in transactions not
otherwise prohibited by this Agreement.
Section 5.2 Negative Covenants. So long as any
Obligations shall remain outstanding or any of the
Commitments shall remain available hereunder, Borrower will
not, without the written consent of Majority Banks:
(a) Liens. Create, incur, assume or suffer to
exist any Lien upon or with respect to any of its assets or
property, or permit any Subsidiary so to do, except: (i)
Liens, if any, in favor of Agent and Banks collectively;
(ii) Liens arising in connection with workers' compensation,
unemployment insurance and other social security
legislation; (iii) Liens in existence on the date hereof
<PAGE> 40
which secure obligations disclosed in the financial
statements referred to in Section 4.1(k) or in the notes
thereto; (iv) Liens placed or existing at the time of any
acquisition on property being acquired by Borrower or any
Subsidiary; (v) Liens for property taxes not yet due and
payable and Liens for taxes not yet due or that are being
contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the
books of Borrower or one of its Subsidiaries, as the case
may be, in accordance with generally accepted accounting
principles; (vi) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business that are not overdue for
more than 30 days or that are being contested in good faith
and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of Borrower or
one of its Subsidiaries, as the case may be, in accordance
with generally accepted accounting principles; (vii)
deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business; (viii) easements, rights-of-way,
restrictions and other similar encumbrances incurred in the
ordinary course of business that, in the aggregate, are not
substantial in amount, and that do not in any case
materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the
business of Borrower and its Subsidiaries; (ix) Liens in
favor of the United States of America for amounts paid to
Borrower or any of its Subsidiaries as progress payments
under government contracts entered into by it; (x) Liens on
assets of corporations that become Subsidiaries after the
date hereof, provided that such Liens exist at the time the
respective corporations become Subsidiaries and are not
created in anticipation thereof; (xi) Liens in favor of
vendors of equipment purchased by Borrower or any
Subsidiary; provided that such Liens are limited to all or a
part of the equipment purchased, and the aggregate amount of
the Debt secured by such Liens at no time exceeds $3,000,000
and such equipment is used in the ordinary course of
business of Borrower or such Subsidiary; and (xii) Liens
granted in any extension, renewal, or replacement of any of
the permitted Liens described above; provided, however, that
the principal amount of Debt secured thereby shall not
exceed the principal amount of Debt so secured at the time
such Lien was originally granted, and that such extension,
renewal or replacement shall be limited to all or part of
the property which secured the Lien so extended, renewed or
replaced (plus improvements and construction on such
property).
<PAGE> 41
(b) Guaranties. Assume, guarantee, endorse or
otherwise become directly or contingently liable for (by
agreement to purchase or lend or otherwise) any obligation
of any other Person other than any Subsidiary, or permit any
Subsidiary so to do, except: (i) guaranties by endorsement
of negotiable instruments for deposit or collection; (ii)
performance bonds or similar transactions in the ordinary
course of business; and (iii) guaranties and other
contingent liabilities which do not exceed $50,000,000 in
the aggregate and which are disclosed in the financial
statements referred to in Section 5.1(h)(ii).
(c) Mergers, Consolidation and Sales of Assets.
(i) Enter into any merger or consolidation or permit any
Subsidiary so to do, except for a merger or consolidation in
which Borrower or a wholly-owned Subsidiary is the surviving
entity, provided that if Borrower is a party to such merger
or consolidation, Borrower is the surviving entity and
provided, further that after giving effect to any such
merger no event or condition shall exist which, with the
lapse of time, the giving of notice, or both, would
constitute an Event of Default; or (ii) sell, lease or
otherwise transfer or dispose of any of its assets which in
the aggregate are material to Borrower, or permit any
Subsidiary so to do, except in the ordinary course of its
business.
(d) Obligations to be Pari Passu. Borrower's
obligations under this Agreement and the other Credit
Documents will rank at all times pari passu as to priority
of payment and in all other respects with all other
unsecured and unsubordinated Debt of Borrower.
(e) Capital Leases. Incur, create, assume or
suffer to exist, or permit any Subsidiary to incur, create,
assume or suffer to exist, any lease of property, real or
personal, the obligations under which should be capitalized
on a balance sheet of Borrower or such Subsidiary in
accordance with generally accepted accounting principles if,
after giving effect to such lease, the aggregate rentals
payable by Borrower and the Subsidiaries under all such
leases would exceed $50,000,000 in any one fiscal year of
Borrower; provided, however, that this subsection 5.2(e)
shall not apply to those capital leases assumed as a result
of mergers and consolidations permitted by Section 5.2(c)
hereof.
(f) Nature of Business. Make any material change
in the character of the business of Borrower and its
Subsidiaries from that conducted on the date hereof.
<PAGE> 41
(g) Fiscal Year. Change its fiscal year.
(h) Consolidated Net Worth. Permit the
Consolidated Net Worth of Borrower and its Subsidiaries at
any time to be less than $750,000,000.
(i) Debt to Net Worth Ratio. Permit the ratio of
(a) the sum of (i) the total Debt of Borrower and its
Subsidiaries on a consolidated basis plus (ii) (without
duplication) the total amount of all liabilities guaranteed
or assumed, directly or indirectly, in any manner or
endorsed (other than for collection or deposit in the
ordinary course of business) or discounted with recourse by
Borrower or any Subsidiary to (b) the Consolidated Net Worth
of Borrower and its Subsidiaries, at any time to be greater
than 1.5 to l.
(j) ERISA Plans. Create, permit or suffer to
exist any Plan or Multiemployer Plan, or permit any ERISA
Affiliate to do so; provided, however, that Borrower may
permit an ERISA Affiliate to maintain a Plan if, but only to
the extent that, all of the following conditions are
satisfied: (i) such ERISA Affiliate became an ERISA
Affiliate after the date of this Agreement; (ii) such Plan
was in existence on the date the ERISA Affiliate maintaining
or contributing to it became an ERISA Affiliate; (iii) such
Plan is terminated and all of its assets distributed within
180 days of the date upon which such ERISA Affiliate became
an ERISA Affiliate; (iv) the aggregate liability under
Subtitle D of Title IV of ERISA of Borrower and its ERISA
Affiliates with respect to any such Plan does not at any
time exceed $1,000,000 and with respect to all such Plans in
the aggregate does not at any time exceed $2,000,000; (v) no
demand by the Pension Benefit Guaranty Corporation under
ERISA sections 4062, 4063, or 4064 is outstanding against
such ERISA Affiliate on the date it becomes an ERISA
Affiliate; and (vi) no lien described in ERISA section 4068
upon the assets of such ERISA Affiliate is in existence on
the date it becomes an ERISA Affiliate.
ARTICLE VI
Events of Default
-----------------
Section 6.1 Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) Payments. Borrower shall fail to pay any
principal of, or interest on, any of the Loans when the same
<PAGE> 43
becomes due and payable, or Borrower or shall fail to pay
any other sum due under this Agreement or any other Credit
Documents within five days of the date when the same becomes
due and payable; or
(b) Representations and Warranties. Any
representation or warranty made or deemed to be made by
Borrower or any Subsidiary (or any of its officers) under or
in connection with any Credit Document shall prove to have
been incorrect or misleading in any material respect when
made or deemed to be made; or
(c) Covenants. Borrower or any of its
Subsidiaries shall fail to perform or observe any term,
covenant or agreement contained herein or in any other
Credit Document on its part to be performed or observed
(other than failures to pay which are subject to clause (a)
above) and any such failure shall remain unremedied for 30
days after written notice thereof shall have been given to
Borrower by Agent or any Bank; or
(d) Other Debts. Borrower or any of its
Subsidiaries shall, either singly or in combination, fail to
pay Debt in excess of $5,000,000 in the aggregate (excluding
Debt specified in subsection (a) above) for Borrower and all
such Subsidiaries, or any interest or premium thereon, when
due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such
Debt; or any other default under any agreement or instrument
relating to any such Debt, or any other event, shall occur
and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the
effect of such default or event is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof;
or
(e) Judgments and Orders. Any judgment or order
for the payment of money in excess of $5,000,000 shall be
rendered against Borrower or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) there
shall be any period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
<PAGE> 44
(f) Insolvency or Voluntary Proceedings.
Borrower or any of its Material Subsidiaries is generally
not paying or admits in writing its inability to pay its
debts as such debts become due, or files any petition or
action for relief under any bankruptcy, reorganization,
insolvency, or moratorium Law or any other Law for the
relief of, or relating to, debtors, now or hereafter in
effect, or makes any assignment for the benefit of
creditors, or takes any corporate action in furtherance of
any of the foregoing; or
(g) Involuntary Proceedings. An involuntary
petition is filed against Borrower or any Material
Subsidiary under any bankruptcy statute now or hereafter in
effect, or a custodian, receiver, trustee, assignee for the
benefit of creditors (or other similar official) is
appointed to take possession, custody or control of any
property of Borrower or any of its Material Subsidiaries,
and (i) such petition or appointment is not set aside or
withdrawn or otherwise ceases to be in effect within 60 days
from the date of said filing or appointment, or (ii) an
order for relief is entered against Borrower or such
Material Subsidiary with respect thereto; or
(h) Appropriation. All, or such as in the
opinion of Majority Banks constitutes substantially all, of
the property of Borrower and its Subsidiaries on a
consolidated basis is condemned, seized or appropriated; or
(i) Suspension of Business. Borrower or any
Material Subsidiary voluntarily suspends its business for
more than five (5) Banking Days in any thirty (30) day
period; or
(j) Credit Documents. Any material provision of
any Credit Document shall for any reason cease to be valid
and binding on Borrower or any guarantor of the Obligations,
or Borrower or any guarantor of the Obligations shall so
state in writing;
(k) Change of Control. Any Person (other than
Borrower) becomes an "interested stockholder" (as such term
is defined in Section 203 of the General Corporation Law of
the State of Delaware) of, or otherwise acquires control of,
Borrower or any Material Subsidiary or any Affiliate of
Borrower or any Material Subsidiary, except for any Person
that was an interested stockholder prior to the date of this
Agreement;
then, (i) automatically upon the occurrence of any event
specified in clauses (f) or (g) of this Section 6.1 and at
<PAGE> 45
the option of Majority Banks, by notice from Agent to
Borrower, in any other event, (A) the obligation of each
Bank hereunder or under any other Credit Documents to make
any Loans, shall be immediately terminated, and/or (B) the
total outstanding principal amount of all Loans, all
interest thereon and all other amounts payable under this
Agreement or under any other Credit Document shall be
forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are
hereby expressly waived by Borrower, and/or (ii) Agent shall
upon the request, or may with the consent, of Majority Banks
take such actions under and exercise such rights and
remedies pursuant to the Credit Documents, or any of them,
as Agent may deem appropriate.
ARTICLE VII
Relationship of Agent and Banks
-------------------------------
Section 7.1 Authorization and Action. Each Bank
hereby appoints and authorizes Agent, as agent on behalf of
such Bank, to take such action and to exercise such powers
under the Credit Documents as are delegated to Agent by the
terms thereof, together with such powers as are reasonably
incidental thereto. As to any (x) matters requiring or
permitting an approval, consent, waiver, election or other
action by Majority Banks, (y) matters as to which,
notwithstanding any delegation of authority to Agent, Agent
has requested and received instructions from Majority Banks,
and (z) matters not expressly provided for by the Credit
Documents, Agent shall not be required to exercise any
discretion or take any action, but shall be required to act
or to refrain from acting only (and shall be fully protected
in so acting or refraining from acting) upon the
instructions of Majority Banks, and such instructions shall
be binding upon all Banks; provided, however, that Agent
shall not be required to take any action which exposes Agent
to personal liability or which is contrary to any Credit
Document or applicable Law. Agent agrees to give to each
Bank prompt notice of each notice given to it by Borrower
pursuant to the terms of any Credit Document.
Section 7.2 Agent's Reliance, Etc. Neither Agent
nor any of its directors, officers, agents, attorneys or
employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with any
Credit Document, except for its or their own gross
negligence or willful misconduct. Without limiting the
generality of the foregoing, Agent: (i) may treat each Bank
as the holder of the right to payment of its outstanding
<PAGE> 46
Loans until Agent receives and accepts (together with any
required transfer fee) an Assignment and Acceptance
Agreement signed by such Bank and its Assignee in form
satisfactory to the Agent and otherwise in accordance with
the provisions of this Agreement; (ii) may consult with
legal counsel (including counsel for Borrower), independent
public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of
such counsel, accountants or experts if such counsel,
accountants or other experts are selected without gross
negligence or willful misconduct on the part of the Agent;
(iii) makes no warranty or representation to any Bank and
shall not be responsible to any Bank for any statements,
warranties or representations made in or in connection with
any Credit Document; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of any Credit
Document on the part of Borrower or to inspect the property
(including the books and records) of Borrower; (v) shall not
be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value
of any Credit Document or any other instrument or document
furnished pursuant thereto; and (vi) shall incur no
liability under or in respect of any Credit Document by
acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable or
telex) believed by it in good faith to be genuine and signed
or sent by the proper party or parties unless such action by
the Agent constitutes gross negligence or willful misconduct
on its part.
Section 7.3 Agent and Affiliates. With respect
to its Commitments, the Loans made by it and the obligations
of Borrower owed to it under the Credit Documents as a Bank
thereunder, Agent shall have the same rights and powers
under the Credit Documents as any other Bank and may
exercise the same as though it were not the Agent; and the
term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include Agent in its individual capacity. Agent
and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, and generally engage in
any kind of business with, Borrower, any of its Subsidiaries
and any Person who may do business with or own securities of
Borrower or any such Subsidiary, all as if Agent were not
Agent and without any duty to account therefor to Banks.
Section 7.4 Bank Credit Decision. Each Bank
acknowledges that (a) it has, independently and without
reliance upon Agent or any other Bank and based on such
documents and information as it has deemed appropriate, made
<PAGE> 47
its own credit analysis and decision to enter into this
Agreement, (b) it will, independently and without reliance
upon Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking action under this Agreement and the other Credit
Documents, and (c) Agent has no duty or responsibility,
either initially or on a continuing basis, to provide any
Bank with any credit or other information (other than
obtained under the provisions of this Agreement) with
respect thereto, whether coming into its possession before
the date hereof or at any time thereafter.
Section 7.5 Indemnification. Each Bank agrees to
indemnify Agent (to the extent not reimbursed by Borrower),
ratably according to the ratio of such Bank's Commitments to
the Commitments of all Banks, from and against any and all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against Agent in any way relating
to or arising out of the Credit Documents, or any of them,
or any action taken or omitted by Agent under the Credit
Documents, or any of them, provided that no Bank shall be
liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from Agent's
gross negligence or willful misconduct. Without limiting
the foregoing, each Bank agrees to reimburse Agent promptly
upon demand for such Bank's ratable share (based on the
proportion of all Commitments held by such Bank) of any out-
of-pocket expenses (including counsel fees and allocated
costs of in house legal services) incurred by Agent in
connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, the Credit Documents, or any of
them, to the extent that Agent is not reimbursed for such
expenses by Borrower.
Section 7.6 Successor Agent. Agent may resign at
any time as Agent under the Credit Documents by giving 30
days' prior written notice thereof to Banks and Borrower and
may be removed as Agent under the Credit Documents at any
time with or without cause upon written notice to Agent and
Borrower signed by Majority Banks. Upon any such
resignation or removal, Majority Banks shall have the right
to appoint a successor Agent thereunder. If no successor
Agent shall have been so appointed by Majority Banks, and
shall have accepted such appointment, within 30 days after
<PAGE> 48
the retiring Agent's giving of notice of resignation or
Majority Bank's removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of a state
thereof and having a combined capital and surplus of at
least $200,000,000. Unless and until a successor Agent
shall have been appointed as above provided, the retiring
Agent shall serve as a caretaker Agent unless dismissed by
Majority Banks. Upon the acceptance of any appointment as
Agent under the Credit Documents 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 all duties and obligations of the Agent arising
thereafter under the Credit Documents. After any retiring
Agent's resignation or removal as Agent under the Credit
Documents, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken
by it while it was Agent under the Credit Documents.
Section 7.7 Collateral. Each of the Banks
represents to Agent and each of the other Banks that it in
good faith is not relying upon any "margin stock" (as
defined in Regulation U of the Board of Governors of the
Federal Reserve System) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
ARTICLE VIII
Miscellaneous
-------------
Section 8.1 Notices. Except as provided in
Article II with respect to the matters therein specified,
all notices, demands, instructions, requests, and other
communications required or permitted to be given to, or made
upon, any party hereto shall be in writing and (except for
financial statements and other related informational
documents to be furnished pursuant hereto which may be sent
by first-class mail, postage prepaid) shall be personally
delivered or sent by registered or certified mail, postage
prepaid, return receipt requested, or by prepaid telex, TWX,
telecopy, or telegram (with messenger delivery specified)
and shall be deemed to be given for purposes of this
Agreement on the day that such writing is received by the
Person to whom it is to be sent pursuant to the provisions
of this Agreement. Unless otherwise specified in a notice
sent or delivered in accordance with the foregoing
provisions of this Section, notices, demands, requests,
instructions, and other communications in writing shall be
<PAGE> 49
given to or made upon each party hereto at the address (or
its telex, TWX, or telecopier numbers, if any) set forth for
such party on the signature pages hereof or, in the case of
any Assignee, set forth in the relevant Assignment and
Acceptance Agreement.
Section 8.2 Successors and Assigns. This
Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns;
provided, however, that Borrower shall not assign this
Agreement or any of the rights of Borrower hereunder without
the prior written consent of all Banks and Agent (the giving
of such consent to be in each Bank's and Agent's sole and
absolute discretion), and any such purported assignment
without such consent shall be absolutely void, and (b) no
Bank shall assign this Agreement or any of the rights of
such Bank hereunder except in accordance with Section 8.11.
Section 8.3 Amendments and Related Matters. No
amendment or waiver of any provision of any Credit Document,
nor consent to any departure by Borrower therefrom, shall in
any event be effective unless the same shall be in writing
and signed by Majority Banks and Borrower and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent with
respect to any Credit Document shall, unless in writing and
signed by all Banks, do any of the following: (a) waive any
of the conditions specified in Section 3.2, (b) increase the
Commitments of any Banks or subject the Banks to any
additional obligations, (c) reduce the principal of, or
interest on, the Loans or fees or other amounts payable to
Banks hereunder or under any other Credit Document,
(d) postpone any date fixed for any payment of principal of,
or interest on, the Loans or any fees or other amounts
payable to Banks hereunder or under any other Credit
Document, (e) change the relative percentage of the
Commitments or of the aggregate unpaid principal amount of
the Loans, or the number of Banks required for Banks or any
of them to take any action hereunder, (f) release any
guaranty of all or any part of the Obligations, or (g) amend
Section 2.9 or this Section 8.3; and provided, further, that
no amendment, waiver or consent with respect to any Credit
Document shall, unless in writing and signed by Agent in
addition to the Banks required above to take such action,
affect the rights or duties of Agent under this Agreement or
any other Credit Document.
Section 8.4 Costs and Expenses; Indemnification.
<PAGE> 50
(a) Expenses. Borrower agrees to pay on demand
(i) all costs and expenses of Agent in connection with the
preparation, execution, delivery, administration,
modification and amendment of the Credit Documents and the
other documents to be delivered under the Credit Documents,
including, without limitation, the reasonable fees and out-
of-pocket expenses of counsel (including allocated costs for
in-house legal services) for Agent with respect thereto and
with respect to advising Agent as to its rights and
responsibilities under the Credit Documents, and (ii) all
costs and expenses of Agent and Banks, if any (including,
without limitation, reasonable counsel fees and expenses
(including allocated costs for in-house legal services)), in
connection with the enforcement (whether through
negotiations, legal proceedings or otherwise), restructuring
(whether or not in the nature of a "work-out"), and the
administration of the Credit Documents and the other
documents to be delivered under the Credit Documents.
(b) Indemnification. Borrower agrees to
indemnify Agent, each Bank and each officer, director,
Affiliate, employee, agent or representative of Agent or
Bank ("Bank Indemnitees") and hold each Bank Indemnitee
harmless from and against any and all liabilities, losses,
damages, costs, and expenses of any kind (including the
reasonable fees and disbursements of counsel for any Bank
Indemnitee (including allocated costs of in-house counsel))
in connection with any investigative, administrative, or
judicial proceeding, whether or not such Bank Indemnitee
shall be designated a party thereto (but if not a party
thereto, then only with respect to such proceedings where
such Bank Indemnitee (i) is subject to legal process
(whether by subpoena or otherwise) or other compulsion of
law, (ii) believes in good faith that it may be so subject,
or (iii) believes in good faith that it is necessary or
appropriate for it to resist any legal process or other
compulsion of law which is purported to be asserted against
it), which may be incurred by any Bank Indemnitee, relating
to or arising out of this Agreement or any of the other
Credit Documents, any of the transactions contemplated
hereby or thereby, or any actual or proposed use of proceeds
of Loans hereunder; provided, however, that no Bank
Indemnitee shall have the right to be indemnified hereunder
for its own gross negligence or willful misconduct.
Section 8.5 Oral Communications. Agent may, but
is not required (except as provided in Section 2.1(b)) to,
accept and act upon oral communications from Borrower. Any
oral communication from Borrower to Agent (including
telephone communications) hereunder shall be immediately
confirmed in writing by Borrower, but in the event of any
<PAGE> 51
conflict between any such oral communication and the written
confirmation thereof, such oral communication shall control
if Agent has acted thereon prior to actual receipt of
written confirmation. Borrower shall indemnify Agent and
hold Agent harmless from and against any and all
liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses and
disbursements of any kind or nature whatsoever (including
attorneys' fees and allocated costs for in-house legal
services) which arise out of or are incurred in connection
with the making of Loans or taking other action in reliance
upon oral communications, except that Agent shall not be
indemnified against its own gross negligence or willful
misconduct.
Section 8.6 Entire Agreement. This Agreement and
the other Credit Documents are intended by the parties
hereto to be a final and complete expression of all terms
and conditions of their agreement with respect to the
subject matter thereof and supersede all oral negotiations
and prior writings in respect to the subject matter hereof.
Section 8.7 Governing Law. THIS AGREEMENT AND
EACH OTHER CREDIT DOCUMENT (EXCEPT TO THE EXTENT THE LAW OF
ANOTHER JURISDICTION IS EXPRESSLY CHOSEN THEREIN) SHALL BE
GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
Section 8.8 Severability. The illegality or
unenforceability of any provision of this Agreement or any
other Credit Document shall not in any way affect or impair
the legality or enforceability of the remaining provisions
of this Agreement or such Credit Document.
Section 8.9 Counterparts. This Agreement may be
executed in as many counterparts as may be deemed necessary
or convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed,
shall be deemed an original but all such counterparts shall
constitute but one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 8.10 Confidentiality. Unless otherwise
required by any Directive, Agent and each Bank agrees not to
voluntarily disclose to unrelated third parties information
clearly marked as "Confidential" provided to it pursuant to
this Agreement or the other Credit Documents, except that
there shall be no obligation of confidentiality in respect
<PAGE> 52
of (i) any information which may be generally available to
the public or becomes available to the public through no
fault of Agent or such Bank; (ii) communications with actual
or prospective participants, or Assignees which undertake in
writing to be bound by this Section 8.10; or (iii) Agent's
or any Bank's directors, officers, employees and other
representatives and agents, and directors, officers,
employees and other representatives and agents of its
Affiliates, legal counsel, auditors and internal bank
examiners, and to the extent necessary or advisable in its
judgment, independent engineering consultants and other
experts or consultants retained by it, if in the case of a
person or entity other than a director, officer, employee,
legal counsel, auditor or internal bank examiner, Agent or
such Bank obtains from such person or entity an undertaking
in writing as to confidentiality substantially identical to
this undertaking.
Section 8.11 Assignments and Participations.
(a) Assignments. Each Bank may, upon at least
five Banking Days' notice to Agent, assign to one or more
financial institutions (as "Assignee") all or a portion of
its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, and
the Loans); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of the
assigning Bank's rights and obligations under this Agreement
being assigned, and any assignment of such Bank's Commitment
and Loans shall cover the same percentage of such Bank's
Commitment and Loans and the same percentage of its Tranche
A Commitment (or Tranche A Loans) and Tranche B Commitment
(or Tranche B Loans), (ii) unless Agent and Borrower
otherwise consent, the amount of the Commitment (such amount
to be determined without reduction for utilization) of the
assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and
Acceptance Agreement with respect to such assignment) shall
not be less than $10,000,000 or shall be an integral
multiple of $1,000,000 in excess thereof, and, unless such
assigning Bank is assigning its entire Commitment, shall not
reduce the amount of the Commitment retained by such Bank to
less than the greater of $10,000,000 or one-half of the
original amount of such Bank's Commitment hereunder, (iii)
each such assignment shall be to an institutional lender,
(iv) the parties to each such assignment shall execute and
deliver to Agent, for its approval, acceptance and recording
an Assignment and Acceptance Agreement, together with a
processing and recordation fee of $2,500, and (v) Borrower
shall consent to such assignment, which consent shall not be
unreasonably withheld. Upon such execution, delivery,
<PAGE> 53
approval, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance
Agreement, (x) the Assignee thereunder shall be a party
hereto as a Bank and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance Agreement, have the rights
and obligations of a Bank hereunder and (y) the Bank
assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance Agreement, relinquish its
rights and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
Agreement, covering all or the remaining portion of an
assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(b) Effect of Assignment. By executing and
delivering an Assignment and Acceptance Agreement, a Bank
assignor thereunder and the Assignee thereunder confirm to
and agree with each other and the other parties hereto as
follows: (i) other than as expressly provided in such
Assignment and Acceptance Agreement, such assigning Bank
makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement
or any other Credit Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other Credit Document or any other
instrument or document furnished pursuant hereto; (ii) such
assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial
condition of Borrower or the performance or observance by
Borrower of any of its obligations under any Credit Document
or any other instrument or document furnished pursuant
hereto or with respect to the taxability of payments to be
made hereunder or under the other Credit Documents; (iii)
such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements
referred to in Section 4.1(k) and Section 5.1(h) and such
other Credit Documents and other documents and information
as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance
Agreement; (iv) such Assignee will, independently and
without reliance upon Agent, such assigning Bank or any
other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this
Agreement; (v) such Assignee appoints and authorizes Agent
to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Credit
Documents as are delegated to Agent by the terms hereof and
<PAGE> 54
thereof, together with such powers as are reasonably
incidental thereto; and (vi) such Assignee agrees that it
will perform in accordance with their terms all of the
obligations which by the terms of this Agreement or any
other Credit Document are required to be performed by it as
a Bank.
(c) Assignment Register. Agent shall maintain at
its Agency Office a copy of each Assignment and Acceptance
Agreement delivered to and accepted by it and a register for
the recordation of the names and addresses of the Banks and
the Commitments of, and principal amount of the Loans owing
to, each Bank from time to time. The entries in such
register shall be conclusive and binding for all purposes,
absent manifest error, and Borrower and Agent and Banks may
treat each Person whose name is recorded in the register as
a Bank hereunder for all purposes of this Agreement. The
register shall be available for inspection by Borrower or
any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(d) Assignments Recorded. Upon its receipt of an
Assignment and Acceptance Agreement executed by an assigning
Bank and an Assignee, Agent shall, if such Assignment and
Acceptance Agreement has been properly completed, and
subject to Borrower's consent as above provided (i) accept
such Assignment and Acceptance Agreement, (ii) record the
information contained therein in the register maintained by
Agent for this purpose and (iii) give prompt notice thereof
to Borrower.
(e) Participations. Each Bank may sell
participations to one or more Persons in or to all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitments, and the Loans owing to it); provided, however,
that (i) such Bank's obligations under this Agreement
(including, without limitation, its Commitments to Borrower
hereunder) shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Bank shall
remain the owner of such Loans for all purposes of this
Agreement, and (iv) Borrower, Agent, and Banks shall
continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under
this Agreement, provided, further, to the extent of any such
participation (unless otherwise stated therein and subject
to the preceding proviso), the assignee or purchaser of such
participation shall, to the fullest extent permitted by law,
have the same rights and benefits hereunder as it would have
if it were a Bank hereunder; and provided, further, that
<PAGE> 55
each such participation shall be granted pursuant to an
agreement providing that the purchaser thereof shall not
have the right to consent or object to any action by the
selling Bank (who shall retain such right) other than an
action which would (i) reduce principal of or interest on
any Loan or Fees in which such purchaser has an interest, or
(ii) postpone any date fixed for payment of principal of or
interest on any such Loan or such fees; and provided,
further, that notwithstanding anything to the contrary in
this subsection (e), the provisions of Sections 2.6 and 2.7
hereof shall apply to the purchasers of participations only
to the extent, if any, that the Bank or Assignee assigning
or selling such participation would be entitled to request
additional amounts under such Sections if such Bank or
Assignee had not sold or assigned such participation.
(f) Assignment to Federal Reserve Bank. Anything
herein to the contrary notwithstanding, each Bank shall have
the right to assign or pledge from time to time any or all
of its Commitments, Loans or other rights hereunder or under
any of the other Credit Documents to any Federal Reserve
Bank.
Section 8.12 Waiver of Trial by Jury. BORROWER,
BANKS, AND AGENT, TO THE MAXIMUM EXTENT THEY MAY LEGALLY DO
SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING
ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, THE OTHER
CREDIT DOCUMENTS, OR IN ANY WAY CONNECTED WITH, OR RELATED
TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO
WITH RESPECT TO THIS AGREEMENT, OR THE OTHER CREDIT
DOCUMENTS, THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR
ENFORCEMENT HEREOF OR THEREOF, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY
LEGALLY DO SO, BORROWER, BANKS AND AGENT HEREBY AGREE THAT
ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY
AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION 8.12 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO
TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
Section 8.13 Choice of Forum and Service of
Process. To the maximum extent permitted by Law, Borrower,
Agent and Banks agree that all actions or proceedings
arising in connection with the Credit Documents shall be
tried and determined only in the state and federal courts
located in the County of New York, State of New York, or, at
the sole option of Agent, in any other court in which Agent
<PAGE> 56
shall initiate legal or equitable proceedings and which has
subject matter jurisdiction over the matter in controversy.
To the extent it may lawfully do so, Borrower waives any
right it may have to assert the doctrine of forum non
conveniens or to object to venue to the extent any
proceeding is brought in accordance with this section.
Borrower hereby irrevocably and unconditionally designates
and appoints (a) the Secretary of State of the State of New
York, and (b) if Borrower no longer maintains its principal
executive offices in New York State, such other Person
reasonably satisfactory to the Agent and the Majority Banks
as may be selected by Borrower and irrevocably agree in
writing to so serve, as its agent to receive on its behalf
service of all process in any proceedings in any such court,
such service being hereby acknowledged by Borrower to be
effective and binding service in every respect. A copy of
any such process so served shall be mailed by registered
mail to Borrower; provided, however, that unless otherwise
provided by mandatory provisions of applicable law, any
failure to mail such copy shall not affect the validity of
service of process. If any agent appointed by Borrower
refuses to accept service, Borrower hereby agrees that
service upon it by mail shall constitute sufficient notice.
Nothing herein shall affect the right to serve process in
any other manner permitted by law.
Section 8.14 Remedies. The remedies provided to
Agent and Banks in the Credit Documents are cumulative and
are in addition to, and not in lieu of, any remedies
provided by law. To the maximum extent permitted by law,
remedies may be exercised by Agent or any Bank successively
or concurrently, and the failure to exercise any remedy
shall not constitute a waiver thereof, nor shall the single
or partial exercise of any remedy preclude any other or
further exercise of such remedy or any other right or
remedy.
Section 8.15 Right of Set-Off. Upon the
occurrence and during the continuance of any Event of
Default, each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to
set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Bank to or for
the credit or the account of Borrower against an equivalent
amount of the Obligations, irrespective of whether or not
such Bank shall have made any demand under this Agreement
and although such obligations may be unmatured. Each Bank
agrees promptly to notify Borrower and Agent after any such
set-off and application is made by such Bank, provided that
the failure to give such notice shall not affect the
<PAGE> 57
validity of such set-off and application. The rights of
each Bank under this Section are in addition to other rights
and remedies (including, without limitation, other rights of
set-off) which such Bank may have.
Section 8.16 Effectiveness and Effect of
Agreement. This Agreement shall become effective (and the
date this Agreement becomes so effective is the "Effective
Date") if, and only if, on or before June 22, 1994:
(i) Agent shall have received counterparts of
this Agreement duly executed by Borrower and the Banks
listed on the signature pages hereof and Agent and
shall have so notified Borrower and Banks;
(ii) The conditions specified in Section 3.1 shall
have been satisfied; and
(iii) Agent shall have received such other
approvals, opinions or documents as Agent or Majority
Banks may reasonably request.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
COMPANY: COMPUTER ASSOCIATES INTERNATIONAL,
INC., a Delaware corporation
By /s/Ira Zar
---------------------------------------
Its Senior Vice President & Treasurer
--------------------------------------
Address for Notices:
One Computer Associates Plaza
Islandia, New York, 11788-7000
Attn: Treasurer
Telecopier: (516) 342-4866
Telex: 981-393
<PAGE> 58
AGENT: CREDIT SUISSE, as Agent for the
Banks
By /s/Lauri Sivaslian
---------------------------------------
Its MSM
--------------------------------------
By /s/Scott Zoellner
---------------------------------------
Its Associate
--------------------------------------
Address for Notices:
Tower 49
12 East 49th Street
New York, New York 10017
Attn: Michael Mast/Scott Zoellner
Telecopier: (212) 238-5439
Telex:
BANKS: CREDIT SUISSE
By
--------------------------------------
Its
-------------------------------------
By
--------------------------------------
Its
-------------------------------------
Address for Notices:
Tower 49
12 East 49th Street
New York, New York 10017
Attn: Michael Mast/Scott Zoellner
Telecopier: (212) 238-5439
Telex:
<PAGE> 59
CHEMICAL BANK
By /s/Phyllis Sawyer
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
395 North Service Road
Third Floor; Suite 302
Melville, New York ll747-3142
Attention: Annmarie Romeo
Phyllis Sawyer
Sally Ballweg
Telecopier: (516) 755-0152
Telex:
MELLON BANK
By /s/David Smith
--------------------------------------
Its Assistant Vice President
-------------------------------------
Address for Notices:
Three Mellon Bank Center
Room 153-2305
Pittsburgh, Pennsylvania 15258
Attention:
Loan Administration
Telecopier: (412) 234-5049
Telex: 812 367/MELBNK
SHAWMUT BANK, N.A.
By /s/Olaperi Onipede
--------------------------------------
Its Director
-------------------------------------
Address for Notices:
One Federal Street
Boston, Massachusetts 02211
Attention: Olaperi Onipede
Mail Code OF-0323
Telecopier: (617) 423-5214
Telex: 6817133 SHAWMUT-BSN
<PAGE> 60
NATIONAL WESTMINSTER BANK USA
By /s/Jeffrey B. Carstens
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
100 Jericho Quadrangle
Jericho, New York 11753
Attention: Jeffrey B. Carstens
Telecopier: (516) 349-2098
Telex:
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By /s/Yoshihiko Shiotsugu
--------------------------------------
Its Vice President & Manager
-------------------------------------
Address for Notices:
Two World Trade Center
79th Floor
New York, New York l0048
Attention: Walter Duffy (For Credit
Matters)
Kathleen Barsotti (For
Administration Matters)
Telecopier: (212) 912-0516
Telex: 420626/FUJ UI
<PAGE> 61
THE BANK OF NOVA SCOTIA
By /s/Stephen Lockhart
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
New York Agency
1 Liberty Plaza
26th Floor
New York, New York l0006
Attention: Alan Reiter
Telecopier: (212) 225-5090
Telex: ITT 421791/WUI 669859
THE BANK OF NEW YORK
By /s/William A. Kerr
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
One Wall Street, 8th Floor
New York, New York 10286
Attention: Gianni W. Sellers
Telecopier: (212) 635-1480
Telex:
COMMERZBANK AG
By /s/Juergen Boysen /s/Michael D. Hintz
--------------------------------------
Its Senior Vice President Vice President
-------------------------------------
Address for Notices:
Two World Financial Center
New York, New York 10281-1050
Attention: Michael Hintz
Telecopier: (212) 266-7235
Telex:
<PAGE> 62
THE BANK OF TOKYO TRUST CO. LTD.
By /s/Neal Hoffson
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
1251 Avenue of the Americas
12th Floor
New York, New York 10116
Attention: Neal Hoffson
Telecopier: (212) 782-6445
Telex:
<PAGE>
<TABLE>
Schedule 1
----------
Commitment Schedule
-------------------
A. Agency Office: Tower 49
------------- 12 East 49th Street
New York, New York 10017
B. Banks: (Listed Below)
-----
<CAPTION>
Bank Commitment Lending Office
- ---- ---------- --------------
<S> <C> <C>
Credit Suisse $37,500,000 Tower 49
12 East 49th Street
New York, New York 10017
Chemical Bank $25,000,000 395 North Service Road
Third Floor; Suite 302
Melville, New York 11747-3142
Mellon Bank $31,250,000 Three Mellon Bank Center
Room 153-2305
Pittsburgh, Pennsylvania
15258
National $25,000,000 100 Jericho Quadrangle
Westminster Bank Jericho, New York 11753
USA
Shawmut Bank, $25,000,000 One Federal Street
N.A. Boston, Massachusetts 02211
The Fuji Bank, $25,000,000 Two World Trade Center
Limited, New York 79th Floor
Branch New York, New York 10048
The Bank of Nova $31,250,000 New York Agency
Scotia 1 Liberty Plaza
26th Floor
New York, New York 10006
The Bank of New $12,500,000 1 Wall Street
York 8th Floor
New York, New York 10286
Commerzbank AG $12,500,000 Two World Financial Center
New York, New York 10281-1050
The Bank of Tokyo $25,000,000 1251 Avenue of the Americas
Trust Co. Ltd. 12th Floor
New York, New York 10116
</TABLE>
<PAGE>
<TABLE>
Schedule 2
----------
Existing Loans
--------------
<CAPTION>
Bank Tranche A Loans Tranche B Loans Total Loans
- ---- --------------- --------------- -----------
<S> <S> <C> <C>
Credit Suisse 0 $4,000,000 $4,000,000
Chemical Bank 0 $4,000,000 $4,000,000
Mellon Bank 0 $4,000,000 $4,000,000
National Westminster Bank 0 $2,000,000 $2,000,000
USA
Shawmut Bank, N.A. 0 $1,600,000 $1,600,000
The Fuji Bank Limited, New 0 $1,200,000 $1,200,000
York Branch
The Bank of Nova Scotia 0 $1,200,000 $1,200,000
The Bank of New York 0 $1,200,000 $1,200,000
The Bank of Tokyo Trust Co., 0 $ 800,000 $ 800,000
Ltd.
</TABLE>
<PAGE>
Exhibit A
ASSIGNMENT AND ACCEPTANCE AGREEMENT
(Short Term Revolver)
This ASSIGNMENT AND ACCEPTANCE AGREEMENT, dated as of
______________, 19_____, is made between
____________________________ ("Assignor") and ____________________________
("Assignee") as follows:
1. As used herein (the following definitions to be
applicable in both singular and plural forms):
"Applicable Loans" means the Loans outstanding on
the Effective Date under the Applicable Commitment.
"Applicable Commitment" means Assignor's
Commitment under the Credit Agreement.
"Assigned Percentage" means that percentage of
Assignor's rights and obligations under the Applicable Commitment
which is equal to _____% of such Applicable Commitment and the
Applicable Loans as of the Effective Date.
"Credit Agreement" means the Credit Agreement,
dated as of June 21, 1994, as the same may have been amended to
the date hereof, by and between Computer Associates
International, Inc., a Delaware corporation, the banks and other
financial institutions parties thereto (the "Banks"), and Credit
Suisse, as agent for the Banks.
"Effective Date" has the meaning ascribed thereto
in Paragraph 5 hereof.
Other initially capitalized terms used herein and not
otherwise specifically defined have the meaning ascribed thereto
in the Credit Agreement.
2. Assignor hereby sells and assigns to Assignee, and
Assignee hereby purchases and assumes from Assignor, the Assigned
Percentage of Assignor's rights and obligations as a Bank under
the Credit Agreement with respect to the Applicable Commitment
(including, without limitation, the Assigned Percentage of (i)
the Applicable Commitment as in effect as of the Effective Date,
and (ii) each of the Applicable Loans).
<PAGE>
3. The Assignor (i) represents and warrants that it
is the legal and beneficial owner of the interest being assigned
by it hereunder and that such interest is free and clear of any
adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or any other Credit Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other Credit Document or any
other instrument or document furnished pursuant thereto; and
(iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of
Borrower or the performance or observance by Borrower of any of
its obligations under the Credit Documents or any other
instrument or document furnished pursuant thereto.
4. Assignee (i) acknowledges that, other than as
expressly provided in this Agreement, Assignor 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 any other Credit
Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any
other Credit Document or any other instrument or document
furnished pursuant thereto; (ii) acknowledges that Assignor makes
no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or the performance
or observance by Borrower of any of its obligations under any
Credit Document or any other instrument or document furnished
pursuant thereto or with respect to the taxability of payments to
be made under the Credit Agreement or under the other Credit
Documents; (iii) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial
statements referred to in Section 4.1(k) and Section 5.1(h) of
the Credit Agreement and such other Credit Documents and other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this
Agreement; (iv) will, independently and without reliance upon
Agent, Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under the Credit Agreement; (v) 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
<PAGE>
as are delegated to Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (vi) agrees
that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement or any
other Credit Document are required to be performed by it as a
Bank; and (vii) specifies as its Applicable Lending Office(s) and
address for notices the office(s) set forth beneath its name on
the signature pages hereof.
5. The effective date for the assignment and
acceptance hereunder (the "Effective Date") shall be the date on
which the Assignor receives an amount in the same day funds equal
to the Assigned Percentage of the aggregate principal amount of
Applicable Loans owing to Assignor and outstanding on such date
and has notified Agent of such receipt; provided, however, that
the Effective Date hereunder shall not occur unless and until (x)
Borrower shall have consented thereto by executing (at the place
indicated for Borrower's signature hereon) and delivering to
Agent a counterpart of this Agreement, and (y) Agent has received
an executed original of this Agreement, and Agent's processing
and recording fee has been paid, in accordance with the
requirements of Section 8.11(a) of the Credit Agreement.
6. (a) As of the Effective Date, (i) Assignee shall
be a party to the Credit Agreement and, to the extent provided in
this Agreement, have the rights and obligations of a Bank
thereunder and (ii) Assignor shall, to the extent provided in
this Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement; and (b) from and after
the Effective Date, Agent shall make all payments under the
Credit Agreement in respect of all interest assigned hereby
(including, without limitation, all payments of principal,
interest and commitment and other fees relating to the Assigned
Percentage) to Assignee. Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement
for periods prior to the Effective Date directly between
themselves.
7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. THIS AGREEMENT IS ONE OF THE
CREDIT DOCUMENTS (AS DEFINED IN THE CREDIT AGREEMENT) AND IS
SUBJECT TO SECTION 8.13 (CHOICE OF FORUM AND SERVICE OF PROCESS)
<PAGE>
AND SECTION 8.12 (WAIVER OF TRIAL BY JURY) THEREOF. THE
PROVISIONS OF SUCH SECTIONS 8.13 AND 8.12 ARE INCORPORATED HEREIN
IN FULL.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
ASSIGNOR: ________________________________
By______________________________
Its_____________________________
ASSIGNEE: ________________________________
By______________________________
Its_____________________________
Applicable Lending Office(s)
and address for notices:
_________________________________
_________________________________
_________________________________
<PAGE>
BORROWER'S CONSENT
------------------
The undersigned hereby consents to the foregoing
Assignment and Acceptance Agreement this _______ day of
________________, 19___.
COMPUTER ASSOCIATES
INTERNATIONAL, INC.
By ____________________________
Its ___________________________
<PAGE>
Exhibit B
---------
COMPLIANCE CERTIFICATE
----------------------
[SHORT TERM REVOLVER]
To the Banks and the Agent
Referenced Below
The undersigned hereby certifies that:
1. This Compliance Certificate is being delivered pursuant
to Section 3.1 of that certain Credit Agreement, dated as of June
21, 1994, as the same may have been amended to the date hereof
(the "Credit Agreement"), by and between Computer Associates
International, Inc. a Delaware corporation ("Company"), the banks
and other financial institutions parties thereto (the "Banks")
and Credit Suisse, as agent for the Banks (in such capacity,
"Agent"). Any and all initially capitalized terms used herein
have the meanings ascribed thereto in the Credit Agreement unless
otherwise specifically defined herein.
2. The undersigned is a Responsible Officer of Company
with the title set forth below his signature hereon.
3. The undersigned has reviewed the terms of the Credit
Agreement and the other Credit Documents with a view toward
determining whether Company has complied with the terms thereof
in all material respects, has made, or has caused to be made
under his supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries as of
June 21, 1994 (the "Determination Date"), and such review has
disclosed that as of such date:
(a) the representations and warranties contained in
Section 4.1 of the Credit Agreement and in the other Credit
Documents are true and correct, as though made on and as of such
date except to the extent such representations and warranties are
specifically limited to a prior date; and
(b) no event has occurred and is continuing which
constitutes an Event or Default or would constitute an Event of
Default but for the requirement that notice be given or time
<PAGE>
elapse or both.
4. Borrower is in compliance with the covenants set forth
in Sections 5.2(b), (c)ii, (e), (h) and (i) of the Credit
Agreement.
I hereby certify the foregoing information to be true and
correct in all material respects and execute this Compliance
Certificate this 21st day of June, 1994.
_______________________________
Title:
a Responsible Officer of Computer
Associates International, Inc.
<PAGE>
Exhibit C
---------
NOTICE OF BORROWING
-------------------
(SHORT TERM REVOLVER)
Credit Suisse
As the Agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 2.1 of
that certain Credit Agreement, dated as of June 21, 1994, as the
same may have been amended to the date hereof (the "Credit
Agreement"), by and between Computer Associates International,
Inc., a Delaware corporation and the Banks and other financial
institutions parties thereto (the "Banks") and Credit Suisse, as
agent for the Banks. Any and all initially capitalized terms used
herein have the meanings ascribed thereto in the Credit Agreement
unless otherwise specifically defined herein.
The undersigned hereby (one checked as applicable):
[ ] gives Agent irrevocable notice
[ ] confirms its irrevocable telephonic notice to Agent
that it requests a Loan under the Credit Agreement as follows:
1. Date of Loan. The requested date of the proposed Loan is
____________________, 19__.
2. Amount of Loan. The requested aggregate amount of the
proposed Loan is: $______________.
3. Rate Option and Interest Period. The requested rate
option and Interest Period for the proposed Loan is ((a) or (b)
checked as applicable):
[ ] (a) The Eurodollar Rate for an Interest Period of
(one checked as applicable):
[ ] 1 month
[ ] 2 months
<PAGE>
[ ] 3 months
[ ] 6 months
[ ] 9 months
[ ] 12 months
[ ] (b) The Base Rate for an Interest Period of
_________ days.
5. Representations and Warranties. The undersigned hereby
certifies that the following statements are true on the date
hereof, and will be true on the date of the proposed Loan:
(a) the representations and warranties contained in Section
4.1 of the Credit Agreement and in the other Credit Documents are
true and correct before and after giving effect to the proposed
Loan and to the application of the proceeds therefrom, as though
made on and as of such date except to the extent such
representations and warranties are specifically limited to a prior
date;
(b) no event has occurred and is continuing, or would result
from such proposed Loan or from the application of the proceeds
therefrom, which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice
be given or time elapse or both: and
(c) all conditions precedent under Article III of the Credit
Agreement to the making of the Loans are satisfied.
Dated: ______________, 19__.
COMPUTER ASSOCIATES
INTERNATIONAL, INC.,
By ___________________________
Its __________________________
<PAGE>
Exhibit D
---------
[Opinion of Borrower's Counsel]
[Short Term Revolver]
[____________________, 1994]
To the Banks Referenced Below and the Agent:
Re: Computer Associates International, Inc.
---------------------------------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.1(f) of
the Credit Agreement dated as of June 21, 1994 (the "Credit
Agreement"), by and between Computer Associates International,
Inc., a Delaware corporation (the "Company"), on the one hand, and
the banks and other financial institutions party thereto reflected
on the signature pages thereof (the "Banks") and Credit Suisse, as
agent for the Banks (in such capacity "Agent"), on the other hand.
Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
We have acted as counsel for the Company in connection with
the Credit Agreement and certain of the transactions contemplated
thereby. In that connection we have examined an executed copy of
the Credit Agreement, together with all Exhibits thereto.
We have also familiarized ourselves with the Restated
Certificate of Incorporation and by-laws of the Company, as amended
to date, and have examined the originals, or copies certified or
otherwise identified, of corporate records of the Company,
including minute books of the Company as furnished to us by the
Company, certificates of public officials and of representatives of
the Company, statutes and other instruments and documents, as a
basis for the opinions hereinafter expressed. In giving such
opinions we have relied upon certificates of officers of the
Company with respect to the accuracy of the material factual
matters contained in such certificates.
We have also assumed (i) that all signatures on all documents
examined by us are genuine, (ii) that all documents submitted to us
as copies are true and correct copies of the originals, and (iv)
<PAGE>
that all information submitted to us is accurate and complete.
On the basis of the foregoing, subject to the assumptions,
limitations, qualifications and exceptions set forth herein, we are
of the opinion that:
1. The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the State
of Delaware, and has the requisite corporate power and
authority to own and operate its properties and to carry
on its business as presently conducted.
2. The Company has the requisite corporate power and
authority to enter into the Credit Agreement, to bind
itself thereby, and to perform its obligations
thereunder.
3. The Credit Agreement has been duly authorized by all
necessary corporate action on the part of the Company and
has been duly executed and delivered by the Company. The
Credit Agreement, constitutes, and the other Credit
Documents to which the Company becomes a party when
executed will constitute, the valid and binding
obligations of the Company enforceable against the
Company in accordance with their respective terms.
4. The choice of New York law to govern the construction and
interpretation of the Credit Agreement is a valid and
effective choice of law under the laws of the States of
Delaware and New York, and adherence to existing judicial
precedents under law would require a court sitting in
Delaware and New York to abide by such choice of law.
5. The execution and delivery by the Company of the Credit
Agreement and the other Credit Documents to which it is
a party, the performance by Company of its obligations
thereunder and the consummation of the transactions
contemplated thereby will not (a) conflict with the
Restated Certificate of Incorporation or by-laws of the
Company, as amended, or (b) conflict with or result in a
breach of, or constitute a default under (with or without
the giving of notice, the passage of time or both), or
result in the creation or imposition of any Lien (other
than exceptions permitted by Section 5.2(a) of the Credit
Agreement) upon any of the property or assets of the
Company or of any of its Subsidiaries under (i) any
<PAGE>
indenture, mortgage, deed of trust or other instrument or
agreement known to us by which the Company or any of its
Subsidiaries is bound, and to which any of the property
or assets of the Company or any of its Subsidiaries are
subject or (ii) any existing applicable Law affecting the
Company or any of its Subsidiaries or any of the
properties or assets of the Company or any of its
Subsidiaries, except for, in the case of clause (ii), any
conflict, breach or default that (A) is not material and
(B) does not impair the ability of the Company to perform
its obligations under the Credit Agreement or any other
Credit Document to which it is a party or of Agent or any
Bank to enforce or collect any of the Obligations.
6. No order, license, consent, authorization or approval of,
or exemption by, or notice to or registration with, any
federal, state, municipal or other governmental
department, commission, board, bureau, agency or other
governmental, administrative or judicial authority or
regulatory body, and no filing, recording, publication or
registration of any kind, is required in connection with
the execution, delivery and performance by the Company
(or any of its Subsidiaries) of the Credit Agreement, or
the other Credit Documents to which it is a party, or for
the legality, validity, binding effect or enforceability
thereof.
7. The making of Loans and the application of the proceeds
thereof by the Company as provided in the Credit
Agreement do not violate Regulation G, T, U, or X of the
Board of Governors of the Federal Reserve System (the
"Board"), or any other regulation of the Board.
8. The Company is not an "investment company" or a company
"controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as
amended. Neither the Company nor any of its Subsidiaries
is a "holding company" or a "subsidiary" of a "holding
company" as defined in the Public Utility Holding Act of
1935, as amended.
9. To our knowledge, except as disclosed in the Notes to the
Company's financial statements referred to in Section
4.1(k) of the Credit Agreement, there is no action, suit,
or proceeding pending or overtly threatened against the
Company or any of its Subsidiaries of the nature
described in Section 4.1(h) of the Credit Agreement or in
which an injunction or order has been entered preventing
the making of the Loans.
<PAGE>
The opinions set forth above in paragraph 3 are subject, with
your concurrence, to the following qualifications, assumptions,
limitations and exceptions: (i) the performance by the Company and
the enforceability of the Credit Agreement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or conveyance or other laws of general
application affecting creditor's rights and to court decisions with
respect thereto, by implied or express covenants of good faith and
fair dealing and by general principles of equity (regardless of
whether such validity, binding effect or enforceability is
considered in a proceeding in equity or at law); (ii) we express no
opinion as to the availability of equitable remedies for any breach
of the provisions of the Credit Agreement other than those relating
to the payment of money; (iii) we express no opinion as to the
validity, binding effect, or enforceability of any provision of the
Credit Agreement relating to indemnification or contribution with
respect to claims arising under any federal or state securities
law; and (iv) provisions to the effect that failure to exercise or
delay in exercising rights or remedies will not operate as a waiver
of the right or remedy are unenforceable under certain
circumstances.
To the extent that the opinion herein may be dependent upon
such matters, we have assumed that each of Agent and the Banks is
duly organized, validly existing, and in good standing under the
laws of the jurisdiction in which it is organized, that the Credit
Agreement has been or will be duly authorized, executed, and
delivered by each of Agent and the Banks, and constitutes the valid
and binding obligation of each of Agent and the Banks, and that
each of Agent and the Banks has the requisite power and authority
to perform its obligations under the Credit Agreement.
Except as expressly addressed in this opinion, we are not
expressing any opinion as the effect of Agent's or any Bank's
compliance or noncompliance with any state, federal or foreign laws
or regulations applicable to the transactions because of the nature
of the business conducted by Agent or such Bank.
We are members of the Bar of the State of New York. The
foregoing opinion is based on and is limited to the law of the
State of New York, and the relevant law of the United States of
America and of the State of Delaware, and we render no opinion with
respect to the laws of any other jurisdiction. The opinions
expressed herein are solely for your benefit in connection with the
above transactions and may not be relied on in any manner or for
any purpose by any other person. Copies may not be furnished to
any other person without the prior written consent of this firm,
except that you may furnish copies thereof: (a) to your
independent auditors and attorneys; (b) to any state or federal
authority having regulatory jurisdiction over you; (c) pursuant to
the order or legal process of any court or governmental agency; (d)
in connection with any legal action to which you are a party
arising out of the above transactions; and (e) any Bank or any
proposed participant in or assignee of any Bank's interest in any
Loan or Commitment, any proposed Additional Bank or any successor
to Agent.
Very truly yours,
CREDIT AGREEMENT
between
COMPUTER ASSOCIATES INTERNATIONAL, INC.
as Borrower
and
THE BANKS AND OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
as Banks
and
CREDIT SUISSE
as Agent
[Long Term Revolver]
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
ARTICLE I
<S> <C>
Definitions and Interpretation 1
Section 1.1 Defined Terms 1
Section 1.2 Computation of Time Periods 9
Section 1.3 Accounting Terms 9
Section 1.4 No Presumption Against Any Party 10
Section 1.5 Use of Certain Terms 10
Section 1.6 Headings and References 10
Section 1.7 Independence of Provisions 10
</TABLE>
<TABLE>
<CAPTION>
ARTICLE II
<S> <C>
Amounts and Terms of the Loans 11
Section 2.1 The Loans 11
Section 2.2 Repayment 13
Section 2.3 Interest on Loans 13
Section 2.4 Payments and Computations 16
Section 2.5 Fees 19
Section 2.6 Increased Costs and Capital
Requirements 19
Section 2.7 Taxes 21
Section 2.8 Additional Action in Certain Events 25
Section 2.9 Extension of Commitments 25
Section 2.10 Reduction or Termination of
Commitments 28
Section 2.11 Existing Credit Agreement 28
</TABLE>
<TABLE>
<CAPTION>
ARTICLE III
<S> <C>
Conditions of Commitments 29
Section 3.1 Conditions Precedent to Initial
Loans 29
Section 3.2 Conditions Precedent to Each Loan 31
</TABLE>
<PAGE> ii
<TABLE>
<CAPTION>
ARTICLE IV
<S> <C>
Representations and Warranties 32
Section 4.1 Representations and Warranties of
Borrowers 32
Section 4.2 Representations and Warranties
Restated 35
</TABLE>
<TABLE>
<CAPTION>
ARTICLE V
<S> <C>
Covenants of Credit Parties 35
Section 5.1 Affirmative Covenants 35
Section 5.2 Negative Covenants 39
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VI
<S> <C>
Events of Default 42
Section 6.1 Events of Default 42
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VII
<S> <C>
Relationship of Agent and Banks 45
Section 7.1 Authorization and Action 45
Section 7.2 Agent's Reliance, Etc. 45
Section 7.3 Agent and Affiliates 46
Section 7.4 Bank Credit Decision 46
Section 7.5 Indemnification 47
Section 7.6 Successor Agent 47
Section 7.7 Collateral 48
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VIII
<S> <C>
Miscellaneous 48
Section 8.1 Notices 48
Section 8.2 Successors and Assigns 49
Section 8.3 Amendments and Related Matters 49
Section 8.4 Costs and Expenses; Indemnification 49
Section 8.5 Oral Communications 50
Section 8.6 Entire Agreement 51
Section 8.7 Governing Law 51
Section 8.8 Severability 51
Section 8.9 Counterparts 51
<PAGE> iii
Section 8.10 Confidentiality 51
Section 8.11 Assignments and Participations 52
Section 8.12 Waiver of Trial by Jury 55
Section 8.13 Choice of Forum and Service of Process 55
Section 8.14 Remedies 56
Section 8.15 Right of Set-Off 56
Section 8.16 Effectiveness and Effect of Agreement 57
</TABLE>
<TABLE>
<CAPTION>
SCHEDULES
---------
<S> <C>
Schedule 1 - Commitment Schedule
Schedule 2 - Existing Loans
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
--------
<S> <C>
Exhibit A - Assignment and Acceptance Agreement
Exhibit B - Compliance Certificate
Exhibit C - Notice of Borrowing
Exhibit D - Opinion of Borrowers' Counsel
</TABLE>
<PAGE> 1
CREDIT AGREEMENT
----------------
This CREDIT AGREEMENT, dated as of June 21, 1994,
is made by and between COMPUTER ASSOCIATES INTERNATIONAL,
INC., a Delaware corporation ("Borrower"), the banks and
other financial institutions parties hereto ("Banks"), and
CREDIT SUISSE, as agent for the Banks (in such capacity,
"Agent").
The parties hereto agree as follows:
ARTICLE I
Definitions and Interpretation
Section 1.1 Defined Terms. As used in this
Agreement:
"Affiliate" means, as to any Person, any other
Person directly or indirectly controlling or controlled by
or under common control with such Person.
"Agency Office" means the office of Agent
designated on the Commitment Schedule, or such other office
of Agent as Agent may from time to time designate by notice
to Borrower and the Banks.
"Agent" means Credit Suisse in its capacity as
agent for the Banks hereunder, any successor thereto in such
capacity.
"Alternate Credit Facility" shall mean the short-
term revolving Credit Agreement dated as of June 21, 1994
among Borrower, Credit Suisse as agent and certain banks and
financial institutions named therein, as it may be amended
or supplemented from time to time.
"Applicable Agent's Account" means the account of
Agent maintained at the Agency Office, or such other account
of Agent as may be hereafter from time to time designated by
Agent upon notice to the Borrower and the Banks, as the
account through which the Banks are to make Loans and the
Borrower is to repay Loans and to pay the other sums due
under this Agreement.
"Applicable Lending Office" means with respect to
each Bank the office of such Bank designated on the
Commitment Schedule, or in the Assignment and Acceptance
<PAGE> 2
Agreement or Additional Commitment Agreement pursuant to
which it became a Bank, or such other office of such Bank as
such Bank may from time to time designate by notice to
Borrower and the Agent.
"Assignee" has the meaning ascribed thereto in
Section 8.11.
"Assignment and Acceptance Agreement" means an
assignment and acceptance agreement, in compliance with
Section 8.11 and substantially in the form of Exhibit A
hereto.
"Bank Holding Company" means any Person that
directly or indirectly controls any Bank.
"Banks" means the banks and other financial
institutions signatory hereto in their capacity as Banks,
any Assignees hereafter added as Banks under one or more
Assignment and Acceptance Agreements pursuant to Section
8.11.
"Banking Day" means (a) a day on which banks are
not required or authorized to close in the city in which the
Agency Office or any Applicable Lending Office is located,
and, in matters relating to the determination of a
Eurodollar Rate or Interest Period, a day on which the
London interbank market deals in Dollar deposits, and (b)
with respect to a day on which a Notice of Borrowing is to
be given to Agent at the Agency Office or on which
notifications or other documents are to be received by, or
an action is required of, Agent at the Agency Office
pursuant to the provisions of this Agreement, a day on which
banks are not required or authorized to close in the city in
which the Agency Office is located.
"Base Rate" means a fluctuating rate per annum
(based on a year of 365 or 366 days, as the case may be, and
calculated on actual days elapsed) which is at all times
equal to the higher of (a) the rate per annum publicly
announced by Credit Suisse from time to time as its base
lending rate for commercial loans in Dollars in the United
States or (b) the Federal Funds Rate plus a margin of 0.50
percentage points, the Base Rate to change as and when such
rates change. The base lending rate is not the lowest rate
of interest charged by Credit Suisse in connection with
extensions of credit.
"Base Rate Loan" means any Loan during any period
that such Loan is bearing interest as provided in Section
2.3(a).
<PAGE> 3
"Closing Date" means the date on which the first
Loan under any Commitment is made.
"Commitment" means, as to any Bank, the amount set
forth opposite such Bank's name as its Commitment on the
Commitment Schedule, subject to adjustment for the effect of
any one or more Assignment and Acceptance Agreements to
which such Bank may be a party.
"Commitment Schedule" means the schedule attached
as Schedule 1 hereto.
"Compliance Certificate" means a certificate of,
and duly executed by, a Responsible Officer of Borrower in
the form of Exhibit B hereto.
"Consolidated Net Worth" means at any date of
determination thereof, all amounts that would, in conformity
with generally accepted accounting principles, be included
as shareholders' equity on a consolidated balance sheet of
Borrower and its Subsidiaries as of such date, in accordance
with generally accepted accounting principles.
"Control" (including the terms "controlling,"
"controlled by" and "under common control with") means the
possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a
Person whether through the ownership of voting securities,
by contract, or otherwise.
"Credit Documents" means this Agreement, the
Alternate Credit Facility, any Assignment and Acceptance
Agreements, and any certificates, opinions, warranties and
representations, assignments, guaranties, security
agreements, mortgages and deeds of trust and other documents
heretofore, now or hereafter delivered pursuant to or in
connection with any one or more of the foregoing.
"Debt" means (i) indebtedness for borrowed money,
(ii) obligations to pay the deferred purchase price of
property or services, (iii) obligations as lessee under
leases which shall have been or should be, in accordance
with generally accepted accounting principles, recorded as
capital leases, (iv) obligations evidenced by bonds,
debentures, notes, or equivalent instruments, (v)
reimbursement obligations in respect of drawings made or
available under letters of credit, (vi) obligations under
direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds
<PAGE> 4
referred to in clauses (i) through (v) above, (vii)
liabilities in respect of unfunded vested benefits under
plans covered by Title IV of ERISA, and (viii) withdrawal
liability incurred under ERISA to any Multiemployer Plan.
"Directive" means any Law, and any directive,
guideline or requirement of any governmental authority
(whether or not having the force of law), but, if not having
the force of law, the compliance with which is in accordance
with the general practice of the Person to whom the
Directive is addressed or applies.
"Dollar" and "$" means the lawful currency of the
United States of America.
"Effective Date" has the meaning given that term
in Section 8.16.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business
(whether or not incorporated) which is a member of a group
of which Borrower is a member and which is under common
control with Borrower within the meaning of the regulations
under Section 414 of the IRC.
"Eurocurrency Liabilities" has the meaning
specified in Regulation D promulgated by the Board of
Governors of the Federal Reserve System, as in effect from
time to time or any successor Directive.
"Eurodollar Rate" means, for each Interest Period
for each Eurodollar Rate Loan, the rate of interest per
annum (based on a year of 360 days and calculated on actual
days elapsed) equal at all times during such Interest Period
to the quotient (rounded to the nearest one-sixteenth of one
percent (0.0625%)) of (i) the rate of interest determined by
Agent to be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the rates at
which deposits in Dollars are offered by Reference Banks to
prime banks in the London interbank market at 10:00 a.m.
(New York City time) two Banking Days before the first day
such Interest Period for a period equal to such Interest
Period and in an amount as to each Reference Bank
substantially equal to the Eurodollar Rate Loan of such
Reference Bank divided by (ii) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such
Interest Period.
<PAGE> 5
"Eurodollar Rate Loan" means any Loan during any
period that such Loan is bearing interest as provided in
subclause (i) of Section 2.3(b).
"Eurodollar Rate Margin" means a margin of
(x) 0.15% per annum, if the aggregate amount of Tranche A
Loans and Tranche B Loans outstanding as of any date on
which a determination of the Eurodollar Rate Margin is to be
made hereunder is less than or equal to $250 million, or
(y) 0.225% per annum, in any other case.
"Eurodollar Rate Reserve Percentage" for each
Interest Period for each Eurodollar Rate Loan means the
reserve percentage applicable during such Interest Period
under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or any successor
(or, if different percentages shall be applicable during
different periods within such Interest Period, the daily
average of such percentages during such Interest Period) for
determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other
marginal reserve requirement, with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Event of Default" has the meaning specified in
Section 6.1.
"Existing Commitments" means, with respect to each
of the Existing Participating Banks, such Person's
Commitment under the Existing Credit Agreement.
"Existing Credit Agreement" means that certain
Credit Agreement, dated as of December 9, 1991, among
Borrower, Credit Suisse, as an Existing Participating Bank
and as agent for the Existing Participating Banks, and the
Existing Participating Banks, as banks, as amended.
"Existing Loans" means all Loans as defined in the
Existing Credit Agreement outstanding on the Effective Date
and set forth in Schedule 2 annexed to this Agreement.
"Existing Participating Banks" means each of
Credit Suisse, Chemical Bank, Mellon Bank, N.A., National
Westminster Bank USA, Shawmut Bank, N.A., The Fuji Bank
Limited, New York Branch, The Bank of Nova Scotia, The Bank
of New York and The Bank of Tokyo Trust Co. Ltd., as Banks
under the Existing Credit Agreement.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upwards, if necessary, to the nearest
<PAGE> 6
one-hundredth (1/100th) of one percent (1%)), equal to the
weighted average of the rates of overnight federal funds
transactions with members of the Federal Reserve System
arranged by federal funds brokers as published for such day
(or if such day is not a Banking Day, for the next preceding
Banking Day) by the Federal Reserve Bank of New York, or if
such rate is not so published for any day which is a Banking
Day, the average of the quotations for such day on such
transactions received by Agent from three (3) federal funds
brokers of recognized standing selected by Agent.
"Fees" has the meaning ascribed thereto in Section
2.5.
"Interest Period" means, for each Loan, the period
commencing on the date of such Loan and ending on the last
day of the period selected by Borrower with respect to Loans
made to it pursuant to the provisions of Section 2.1. The
duration of each such Interest Period shall be (i) in the
case of a Eurodollar Rate Loan, 1, 2, 3, 6, 9 or 12 months,
(ii) in the case of a Base Rate Loan, any period; provided,
however, that:
(i) Borrower may not select any Interest Period
which ends after the then existing Termination Date;
(ii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Banking Day, the
last day of such Interest Period shall be extended to occur
on the next succeeding Banking Day; provided, however, that,
with respect to any Interest Period for a Eurodollar Rate
Loan, if such extension would cause the last day of such
Interest Period to occur in the next following month, the
last day of such Interest Period shall occur on the next
preceding Banking Day.
"IRC" means the Internal Revenue Code of 1986, as
amended from time to time.
"Laws" means all federal, state, local or foreign
laws, rules, regulations and treaties, all judgments,
awards, orders, writs, injunctions or decrees issued by any
federal, state, local or foreign authority, court, tribunal,
agency or other governmental authority, or by any
arbitrator, all permits, licenses, approvals, franchises,
notices, authorizations and similar filings, by or with any
federal, state, local or foreign governmental authority and
all consent decrees or regulatory agreements with any
federal, state, local or foreign governmental authority.
<PAGE> 7
"Liens" means any lien, mortgage, security
interest, pledge, encumbrance, charge, conditional sale or
other title retention arrangement, or any undertaking or
arrangement with respect to property or rights (including a
"negative pledge") which has the practical effect of
preventing the grant of a security interest or lien securing
the Obligations.
"Loan" means any Loan made pursuant to Section
2.1.
"Majority Banks" means:
(a) As of any time before the Termination Date,
except during any period that an Event of Default pursuant
to Section 6.1(a) has occurred and is continuing, Banks
holding Commitments which collectively constitute more than
50% of the total Commitments; and
(b) As of any time on or after the Termination
Date, and during any period that an Event of Default
pursuant to Section 6.1(a) has occurred and is continuing,
Banks whose total outstanding Loans exceed 50% of the total
outstanding Loans of all Banks.
"Material Subsidiary" means any Person which is
(a) any Subsidiary of Borrower which holds any capital stock
of Borrower, or (b) a Subsidiary of Borrower which is a
"significant subsidiary", with respect to Borrower as
defined in Section 1-02(v) of Regulation S-X of the
Securities and Exchange Commission (17 C.F.R. 210.l-02(v))
as the same may be from time to time amended or the
equivalent definition under any successor or replacement
regulation of the Securities and Exchange Commission;
provided, however, that no Person which has at any time been
a Material Subsidiary by reason of clause (a) or (b) of the
above definition shall cease to be such a Material
Subsidiary for the purposes hereof unless Borrower has
theretofore given Agent notice of such change in status
pursuant to Section 5.l(h)(ix).
"Maturity Date" means with respect to each Loan,
the last day of the Interest Period applicable to such Loan.
"Multiemployer Plan" means a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA to which Borrower
or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make
contributions, such plan being maintained pursuant to one or
more collective bargaining agreements.
<PAGE> 8
"Notice of Borrowing" means a request by Borrower
for Loans pursuant to Section 2.1 and in the form of Exhibit
C hereto.
"Obligations" means any and all obligations,
indebtedness and liability of Borrower of every kind and
character, owed to Agent or Banks, arising directly or
indirectly out of or in connection with the Credit Documents
(including any modifications, amendments, extensions,
restatements or renewals of, supplements to, or
substitutions or replacements for, any one or more of the
Credit Documents), and including all such obligations,
indebtedness and liability, whether for principal, interest
(including interest that, but for the filing of a petition
in bankruptcy with respect to Borrower, would have accrued
on the Obligations), reimbursement obligations, fees, costs,
expenses, premiums, charges, attorneys' fees, indemnity,
whether heretofore, now, or hereafter made, incurred or
created, whether voluntarily or involuntarily and however
arising, whether or not due, whether absolute or contingent,
liquidated or unliquidated, or determined or undetermined,
and whether Borrower may be liable individually or jointly
with others.
"Person" means an individual, partnership,
corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision
or agency thereof.
"Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which either (i) is maintained
for employees of Borrower or an ERISA Affiliate and no
Person other than Borrower and its ERISA Affiliate, (ii) is
maintained for employees of Borrower or an ERISA Affiliate
and at least one Person other than Borrower and its ERISA
Affiliates, or (iii) was so maintained in respect of which
Borrower or an ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Reference Banks" means the New York City office
of Credit Suisse and the Pittsburgh, Pennsylvania office of
Mellon Bank or any substitute Reference Bank for either of
the foregoing from time to time selected by Agent with
Borrower's written consent (which consent shall not be
unreasonably withheld).
"Reportable Event" has the meaning assigned to
that term in Title IV of ERISA.
<PAGE> 9
"Responsible Officer" means, as to any Person, the
president, chief executive officer, chief operating officer,
chief financial officer, executive vice president,
treasurer, or controller of such Person, and as to Borrower,
such other officer of Borrower designated by a Responsible
Officer of Borrower by notice delivered to Agent.
"Subsidiary" means, as to any Person, any now
existing or hereafter organized corporation, partnership,
joint venture or other organization in which such Person,
directly or indirectly, owns beneficially or of record
equity securities (or securities currently convertible into
equity securities) which give such Person directly or
indirectly, upon conversion, exercise or otherwise, an
interest of 50 percent or more of any of the profits,
losses, capital or property of, or ordinary voting power in
respect of, such corporation, partnership, joint venture or
other organization.
"Termination Date" means June 20, 1997 or such
later date to which the Commitment may be extended pursuant
to Section 2.9 provided, however, that if the whole of the
Commitments are sooner terminated pursuant to Section 6.1 or
otherwise, then the Termination Date shall be such earlier
date of termination.
"Tranche A Commitment" means, with respect to any
Bank, the Commitment of such Bank to make Tranche A Loans.
"Tranche A Loan" means any Loan made pursuant to
the Alternate Credit Facility.
"Tranche B Commitment" means, with respect to any
Bank, the commitment of such Bank to make Tranche B Loans.
"Tranche B Loans" means any loans made pursuant to
this Agreement.
"Type" means, with respect to any Loan, a Base
Rate Loan or a Eurodollar Rate Loan.
Section 1.2 Computation of Time Periods. In this
Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including" and the word "to" and "until"
means "to but excluding".
Section 1.3 Accounting Terms. All accounting
terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles
<PAGE> 10
applied consistently with the financial statements
referenced in Section 4.1(k).
Section 1.4 No Presumption Against Any Party.
Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed or resolved against any Bank or
Borrower, whether under any rule of construction or
otherwise. On the contrary, this Agreement has been
reviewed by each of the parties and their counsel and shall
be construed and interpreted according to the ordinary
meaning of the words used so as to fairly accomplish the
purposes and intentions of all parties hereto.
Section 1.5 Use of Certain Terms. Unless the
context of this Agreement requires otherwise, the plural
includes the singular, the singular includes the plural, the
part includes the whole, "including" is not limiting, and
"or" has the inclusive meaning of the phrase "and/or." The
words "hereof," "herein," "hereby," "hereunder," and other
similar terms of this Agreement refer to this Agreement as a
whole and not exclusively to any particular provision of
this Agreement.
Section 1.6 Headings and References. Section and
other headings are for reference only, and shall not affect
the interpretation or meaning of any provision of this
Agreement. Unless otherwise provided, references to
Articles, Sections, Schedules, and Exhibits shall be deemed
references to Articles, Sections, Schedules and Exhibits of
this Agreement. References to this Agreement and any other
Credit Document include this Agreement and other Credit
Documents as the same may be modified, amended, restated or
supplemented from time to time pursuant to the provisions
hereof or thereof. A reference to a Person includes the
successors and assigns of such Person, but such successors
and assigns shall have rights under this Agreement only to
the extent permitted hereby.
Section 1.7 Independence of Provisions. All
agreements and covenants hereunder and under the other
Credit Documents shall be given independent effect such that
if a particular action or condition is prohibited by the
terms of any such agreement or covenant, the fact that such
action or condition would be permitted within the
limitations of another agreement or covenant shall not be
construed as allowing such action to be taken or condition
to exist.
<PAGE> 11
ARTICLE II
Amounts and Terms of the Loans
Section 2.1 The Loans.
(a) The Loan Commitments. Each Bank severally
agrees on the terms and conditions set forth in this
Agreement (including those of Article III hereof), to make
Loans, in each case, to the extent of its Commitment from
time to time on any Banking Day at the Applicable Lending
Office during the period from the date hereof until, but not
including, the Termination Date. Each Loan shall be made by
the Banks ratably according to each Bank's Commitment, and
shall be in an aggregate amount not less than $5,000,000 or
an integral multiple of $500,000 in excess thereof. Loans
may be borrowed, repaid or prepaid pursuant to Section 2.2,
and reborrowed (including a reborrowing for the purpose of
refunding an outstanding Loan in whole or in part) under
this Section 2.1.
(b) Notice of Borrowing. Each Loan shall be made
on a Notice of Borrowing given by Borrower to Agent at the
Agency Office not later than 12:00 Noon (local time in the
city where the Agency Office is situated) on (x) the third
Banking Day prior to the date of the proposed Loan, in the
case of any Eurodollar Rate Loan for which an Interest
Period of 1, 2, 3 or 6 months is specified in the Notice of
Borrowing, or (y) the fourth Banking Day prior to the date
of the proposed Loan, in the case of any Eurodollar Rate
Loan for which an Interest Period of 9 or 12 months is
specified in the Notice of Borrowing, or (z) the Banking Day
prior to the date of the proposed Loan, in the case of any
Base Rate Loan. The Agent shall give to each Bank prompt
notice thereof by telex, cable or telefacsimile, but in any
event, such notice shall be received by each Bank prior to
3:00 P.M. New York City time on the date Agent receives a
Notice of Borrowing. Each such Notice of Borrowing shall be
by telex, cable, telefacsimile, or telephone confirmed
promptly in writing, but in no event shall such written
confirmation be received by Agent later than 12:00 Noon
(local time in the city where the Agency Office is situated)
on the Banking Day prior to such Loan, specifying therein
(i) the date of such Loan, (ii) the aggregate amount of such
Loan, (iii) the requested interest rate option under Section
2.3(a) or (b) and (iv) Interest Period for the Loan. In the
event Borrower fails to specify an Interest Period for any
Loan, such Interest Period shall be for one month, unless
the Base Rate has been requested (or deemed selected) in
which case, such Interest Period shall be for 30 days. Each
Bank with respect to such Loan shall, before 12:00 Noon
<PAGE> 12
(local time in the city the Agency Office is situated) on
the date of such Loan, make available to Agent at the Agency
Office in same day funds in Dollars for credit to the
Applicable Agent's Account, such Bank's ratable portion of
such Loan and, unless Agent has been notified by a Bank
pursuant to Section 2.1(d) hereof that such Bank will not
make available its ratable portion of such Loan, Agent will
make such funds available to Borrower at the Agency Office
on the date of such Loan; provided, however, in no event
shall a Bank be required to make funds available to Agent
prior to 11:00 A.M. New York City time on the date of such
Loan.
(c) Notice of Borrowing Irrevocable. Each Notice
of Borrowing shall be irrevocable and binding on Borrower.
Borrower shall indemnify each Bank against any loss, cost or
expense incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of
Borrowing, the applicable conditions set forth in Article
III, including, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund the Loan to be made by
such Bank when such Loan, as a result of such failure, is
not made on such date.
(d) Agent's Reliance on Bank Loans. Unless Agent
shall have received notice from a Bank prior to the date of
any Loan, that such Bank will not make available to Agent
such Bank's ratable portion of such Loan (based on the
Commitments of each Bank hereunder), Agent may assume that
such Bank has made such portion available to Agent on the
date of such Loan in accordance with subsection (b) of this
Section 2.1, and Agent may, in reliance upon such
assumption, make available to Borrower on such date a
corresponding amount. If and to the extent that such Bank
shall not have so made such ratable portion available to
Agent, such Bank and Borrower severally agree to repay to
Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such
amount is made available to Borrower until the date such
amount is repaid to Agent, at (i) in the case of Borrower,
the interest rate applicable at the time to such Loan and
(ii) in the case of such Bank, the Federal Funds Rate. If
such Bank shall repay such amount to Agent, such repayment
shall constitute such Bank's ratable portion of such Loan
for purposes of this Agreement.
(e) Failure to Make Loan. The failure of any
Bank to make the Loan to be made by it shall not relieve any
other Bank of its obligation, if any, hereunder to make its
<PAGE> 13
Loan on the date of such Loan, 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 Loan.
(f) Notice of Interest Rate, Interest Period and
Type of Loan. Agent shall give prompt notice to Borrower
and the Banks of the applicable interest rate for such Loan
determined by Agent pursuant to Section 2.3 hereof as soon
as reasonably practicable after such rate is determined by
the Agent and in no event later than two Banking Days prior
to making such Loan in the case of any Eurodollar Rate Loan.
Such notice shall also provide the Interest Period.
Section 2.2 Repayment.
(a) Scheduled Repayments. Borrower shall (i)
repay each Loan on the Maturity Date for such Loan (such
repayment may be by reborrowing pursuant to the provisions
of Section 2.1 hereof to the extent Loans are then available
under the applicable Commitments and otherwise under the
provisions of this Agreement) and (ii) repay all its
outstanding Loans on the Termination Date and (iii) repay
such of its outstanding Loans as may be required at any time
or from time to time to assure that the principal balance of
all outstanding Loans does not exceed the aggregate
Commitments hereunder.
(b) Voluntary Prepayments. Upon at least three
Banking Days' notice to Agent by Borrower stating the
proposed date and aggregate principal amount of the
prepayment, Borrower may, and if such notice is given
Borrower shall, prepay the outstanding principal amount of
any Loan, as identified by Borrower in such notice, in whole
or in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid, as well as
any additional amount owed by Borrower pursuant to Section
2.3(c), provided that each partial prepayment shall be in an
aggregate amount of $1,000,000 or an integral multiple of
$500,000 in excess thereof.
Section 2.3 Interest on Loans.
(a) Base Rate Loans. Except to the extent that
Borrower shall have elected in the applicable Notice of
Borrowing to pay interest on any Loan for an Interest Period
pursuant to subsection (b) of this Section 2.3, and, in any
case, from and after the Maturity Date of each Loan,
Borrower shall pay interest on the unpaid principal amount
of each Loan made to Borrower, from the date of such Loan
until such principal amount is paid in full, at a
fluctuating interest rate per annum equal to the Base Rate,
<PAGE> 14
together with, in each case, any additional interest rate
margin as shall be applicable under subsection (f) of this
Section 2.3.
(b) Eurodollar Rate Loans. Borrower may, if no
Event of Default has occurred and is continuing and subject
to the provisions of this Section 2.3 (as of the date the
relevant Notice of Borrowing is required to be given
pursuant to Section 2.1), elect to pay interest on each Loan
made to Borrower during the Interest Period selected
therefor in the relevant Notice of Borrowing at a rate per
annum equal to the sum of the Eurodollar Rate for such
Interest Period plus the Eurodollar Rate Margin by selecting
the same in the Notice of Borrowing pursuant to which such
Loan was made received by the Agent as specified in Section
2.1(b), together with, in each case, any additional interest
rate margin as shall be applicable under subsection (f) of
this Section 2.3. From and after the Maturity Date of each
Interest Period for any Eurodollar Rate Loan and until
repaid, the unpaid principal balance thereof shall
automatically become, and bear interest as, a Base Rate
Loan.
(c) Breakage Expenses. If for any reason and at
any time or from time to time, including without limitation
voluntary prepayment of principal or payment of principal at
any accelerated maturity, the outstanding principal balance
of any Eurodollar Rate Loan is reduced in whole or in part
prior to the Maturity Date of the applicable Interest Period
by reason of the reduction of any Loan, then, in addition to
accrued interest thereon, Borrower shall pay to each Bank
for credit to the Applicable Agent's Account, on demand by
such Bank, (i) the amount by which the interest which would
have accrued on the amount of such principal reduction
subject to such Interest Period until such Maturity Date had
such principal reduction not been made, exceeds the interest
obtained by such Bank in the reemployment of such principal
reduction for the balance of such Interest Period (such
reemployment of funds to be at reasonable market rates
consistent with the customary practices of such Bank) and
(ii) any cancellation or similar fees incurred by or
allocated to lenders of funds borrowed by such Bank to carry
the unpaid principal sum thereof at the applicable
Eurodollar Rate, and a certificate as to such excess and
fees submitted by such Bank to Borrower shall, absent
manifest error, be final and conclusive.
(d) Eurodollar Rate Loans Not Available. In the
event that prior to the commencement of any Interest Period
for any Eurodollar Rate Loans, (x) Agent notifies Borrower
and each Bank that (1) adequate and fair means do not exist
<PAGE> 15
for Agent to ascertain the relevant Eurodollar Rate, or (2)
one or more of the Reference Banks or Agent, as applicable,
is not offering deposits in Dollars in the relevant
interbank market in the amount, at the time, or for the
Interest Period necessary fairly and adequately to determine
the relevant Eurodollar Rate, or (y) Banks whose Loans will
exceed 50% of all Loans, notify Agent (and Agent shall
promptly notify all other Banks and Borrower) that the
relevant Eurodollar Rate will not adequately reflect the
cost to the Banks giving such notification of making or
maintaining their Eurodollar Rate Loans for such Interest
Period, then, and in each such event, (i) the obligation of
the Banks to make such Type of Loan shall be suspended, and
(ii) all Loans on or after notice of such an event shall be
Base Rate Loans for the balance of the applicable Interest
Period, and, until Agent shall notify Borrower and the Banks
that the circumstances specified in clause (x) or (y) above
no longer continue, further Loans must be Base Rate Loans.
(e) Eurodollar Loans Unlawful. In the event that
any Bank shall have determined (which determination, absent
manifest error, shall be final and conclusive) that the
making or continuation of any interest rate based on the
Eurodollar Rate, has become unlawful (or impracticable by
compliance by such Bank in good faith with any Directive)
with respect to a Commitment of such Bank, then, and in any
such event, effective upon notice by such Bank to Agent and
Borrower and until such notice is rescinded, no such Type of
Loan shall be available under such Commitment with respect
to future Loans made by such Bank and any such existing
Eurodollar Rate Loan shall from and after such notice,
become a Base Rate Loan for the balance of the Interest
Period, and the Applicable Borrower shall pay to such Bank,
upon demand, any reasonable amounts necessary to compensate
such Bank in making such change in interest rates, including
any interest or fees payable by such Bank to lenders of
funds obtained by it in order to make or maintain such Loan,
and a certificate of such Bank as to such interest, fees and
other amounts to be conclusive absent manifest error;
provided, however, that (i) to the extent it may lawfully do
so without incurring any material penalty or increased
costs, such Bank shall continue the existing Eurodollar Rate
Loan until the Maturity Date of the relevant Interest
Period, and (ii) before such termination, such Bank shall
use reasonable efforts (consistent with internal policies
and applicable Directives) to designate a different
Applicable Lending Office if the making of such designation
would avoid such illegality and would not, in the judgment
of such Bank, be otherwise to its disadvantage.
<PAGE> 16
(f) Default Interest Rate. If an Event of
Default has occurred, then from and after the date of
occurrence of such Event of Default, and so long as such
Event of Default continues, the rate or rates of interest
applicable to the then and any subsequent outstanding Loans
shall in all cases be increased by an additional two
percentage points.
(g) Interest Payment Dates. Borrower shall pay
accrued interest on each Loan, determined and calculated as
herein provided, as follows: (i) interest accruing on each
Eurodollar Rate Loan during an Interest Period is payable on
(x) the Maturity Date for such Interest Period, and if such
Interest Period is for more than three months, then also on
the same day of each third month of such Interest Period as
corresponds to the first day of such Interest Period (and if
there is no such corresponding day of the month, then on the
last Banking Day of such month) or (y) the Termination Date,
if earlier; and (ii) interest accruing on each Base Rate
Loan during an Interest Period is payable on (x) the
Maturity Date for such Interest Period, and if such Interest
Period extends beyond the last Banking Day of any March,
June, September or December, then also on the last Banking
Day of each March, June, September or December during such
Interest Period or (y) the Termination Date, if earlier;
provided, however, that interest accruing on and after the
Termination Date shall be due and payable daily.
Section 2.4 Payments and Computations.
(a) Payments to Applicable Agent's Account.
Except as provided in Section 2.7, Borrower shall pay all
amounts due to Agent and Banks hereunder and under any other
Credit Document to which it is a party, without condition or
deduction for any counterclaim, defense, recoupment or
setoff, in Dollars and in same day funds delivered to Agent
not later than (i) 12:00 noon (local time in the city where
the Agency Office is situated) on the day when due by
deposit of such funds to the Applicable Agent's Account.
Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest, or
Fees ratably (other than amounts subject to Taxes pursuant
to Section 2.7 and Agent's Fees payable under Section
2.5(a)(i)), in accordance with the outstanding Loans of the
Banks (in the case of payments of principal or interest) or
the Commitments of the Banks (in the case of payments of
Fees, other than Agent's Fees payable under Section
2.5(a)(i)), to the Banks for the account of their respective
Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Bank to such Bank
for the account of its Applicable Lending Office to be
<PAGE> 17
applied in accordance with, and subject to, the terms of
this Agreement. Upon an Assignment and Acceptance Agreement
becoming effective as provided in Section 8.11 and recording
by Agent of the information contained therein in the
register maintained for purposes of this Agreement by Agent
at its Agency Office, from and after the effective date
specified in such Assignment and Acceptance Agreement, Agent
shall make all payments hereunder and under any other Credit
Document in respect of the interest assigned thereby to the
Assignee thereunder, and the parties to such Assignment and
Acceptance Agreement shall make all appropriate adjustments
in such payments for periods prior to such effective date
directly between themselves.
(b) Setoff. Borrower hereby authorizes each
Bank, if and to the extent payment owing to such Bank from
Borrower is not made when due hereunder to charge from time
to time against any or all of Borrower's accounts with such
Bank any amount so due.
(c) Interest Computations. (i) Computations of
interest for the Eurodollar Rate, and the Federal Funds
Rate, and computations of Fees, shall be made by Agent on
the basis of a year of 360 days, (ii) computations of
interest for the Base Rate shall be made by Agent on the
basis of a year of 365 or 366 days, as the case may be, and
(iii) all computations in every case shall be for the actual
number of days (including the first day but excluding the
last day) occurring in the period for which such interest or
Fees are payable. Each determination by Agent of an
interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Agent's Reliance on Borrower Payments.
Unless Agent shall have received notice from Borrower prior
to the date on which any payment is due to a Bank 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 Banks on such due
date an amount equal to the amount then due to such Banks.
If and to the extent Borrower shall not have so made such
payment in full to Agent, each Bank shall repay to Agent
forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date
such amount is distributed to such Bank until the date such
Bank repays such amount to Agent, at the Federal Funds Rate.
(e) Application of Payments. Amounts received by
Agent for application to the principal of any Loans shall be
applied (i) if received on or before the Termination Date
<PAGE> 18
(if not specified by Borrower or if received after the
occurrence and continuance of an Event of Default) first, to
the ratable payment of the outstanding Loans that constitute
Base Rate Loans, second, to the ratable payment of the
outstanding Loans that constitute Eurodollar Rate Loans and
(ii) if received after the Termination Date to the ratable
payment of all the outstanding Loans.
(f) Payments on Non-Banking Days. Whenever any
payment hereunder shall be stated to be due on a day other
than a Banking Day, such payment shall be made on the next
succeeding Banking Day (except as otherwise provided with
respect to the determination of Interest Periods), and such
extension of time shall in such case be included in the
computation of payment of interest or Fees, as the case may
be.
(g) Adjustments. If any Bank shall obtain any
payment whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise with respect to
principal, interest, or Fees due under the Credit Documents
(other than under Section 2.5(a)(i)), in excess of its
ratable share of payments on account of principal, interest,
or such Fees, as the case may be, then due and owing to all
Banks under the Credit Documents, such Bank shall forthwith
purchase from such other Banks such participations in the
principal, interest or such Fees, as the case may be, owing
to them as shall be necessary to cause such purchasing Bank
to share the excess payment with each of the Banks ratably,
in accordance with the outstanding Loans of other Banks (in
the case of payments on account of principal or interest) or
the Commitments of other Banks (in the case of payments on
account of Fees, other than Agent's Fees payable under
Section 2.5(a)(i)); provided, however, that if all or any
portion of such excess payment is thereafter recovered from
such Bank, such purchase from such other Banks shall be
rescinded and each such other Bank shall repay to the
purchasing Bank the purchase price to the extent of such
recovery, without interest. Borrower agrees that any Bank
purchasing a participation from another Bank pursuant to
this Section may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
setoff) with respect to such participation as fully as if
such Bank were the direct creditor of Borrower in the amount
of such participation.
(h) Loan Register. The indebtedness of Borrower
resulting from all Loans hereunder shall be evidenced by the
entries made in a register maintained by Agent at the Agency
Office; such register shall record (i) the date of and
amount of each Loan, the Type of each Loan and the Interest
<PAGE> 19
Period applicable thereto from time to time, (ii) the terms
of each Assignment and Acceptance Agreement delivered to and
accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from
Borrower to each Bank, (iv) the amount of any sum received
by Agent from Borrower under any Credit Document and each
Bank's share thereof, and (v) the interest rate for such
Loan. The entries made in such register shall evidence
Borrower's absolute and unconditional promise to pay
principal of and accrued interest on all Loans and shall be
conclusive and binding for all purposes, absent manifest
error.
Section 2.5 Fees.
(a) Fees Payable. Borrower shall pay the
following fees (the "Fees") at the Agency Office:
(i) To Agent, the Agent's fees in the amounts and
at the times specified in that certain agent fee letter
from Credit Suisse to Borrower, dated as of June 21,
1994; and
(ii) To each Bank, a facility fee equal to 15
basis points per annum of the amount of the Commitment
of such Bank on each date of calculation; such facility
fee shall commence to accrue on the Effective Date, and
continue until the Termination Date; the accrued
portion of such fee is payable in arrears on March 31,
June 30, September 30, and December 31 of each year,
commencing on September 30, 1994 and continuing until
the Termination Date, and on the Termination Date.
(b) Fees Nonrefundable. Borrower acknowledges
that all Fees (i) are fully earned on the date on which they
are payable, (ii) are nonrefundable when paid (exclusive of
double payments and other manifest errors), and (iii) are
for the sole account of the Person to whom payable.
Section 2.6 Increased Costs and Capital
Requirements. In the event that at any time or from time to
time after the date of this Agreement, any Directive, or a
change in any existing or future Directive (including any
change resulting from the operation of any transitional or
phase-in requirements), or in the interpretation or
application thereof by any governmental or judicial
authority, or any action pursuant thereto, or compliance by
Agent or any Bank or any Bank Holding Company with any
request or Directive imposed or modified by any central bank
or by any other financial, monetary or other governmental
authority:
<PAGE> 20
(a) Reserves and Charges. shall (i) impose,
increase, modify or apply any reserve (including basic,
supplemental, marginal and emergency reserves, but excluding
reserve requirements which are expressly included in the
determination of any interest rate pursuant to the
provisions hereof), special deposit, compulsory loan or
similar requirement against assets held by, or deposits or
other liabilities with or for the account of, or credit
extended by, or any other acquisition of funds by, any
office of Agent, any Bank or any Bank Holding Company; or
(ii) impose on Agent, any Bank or any Bank Holding Company
any fee, charge, tax (other than "Taxes," "Other Taxes," and
"Excluded Taxes" subject to the provisions of Section 2.7),
or condition with respect to this Agreement, any Commitment
or any part thereof, or any sums outstanding or payable
hereunder or thereunder; and the result of any of the
foregoing is to increase the cost to Agent, any Bank or any
Bank Holding Company of making or maintaining such
Commitment, or any Loan or to reduce the amount of any sum
received or receivable with respect to such Commitment, any
Loan or any interest, Fees or other sums payable hereunder,
then upon demand by Agent or such Bank, Borrower shall pay
with respect to any affected Commitment (including Loans
thereunder), promptly for the account of Agent or such Bank,
such additional amount or amounts as Agent or such Bank, in
good faith, certifies in writing to Borrower shall
compensate Agent, such Bank or Bank Holding Company for the
amount of such increased cost or reduced amount receivable,
such certification to be conclusive and binding for all
purposes hereof absent manifest error; or
(b) Capital Adequacy. shall impose, modify or
deem applicable any capital adequacy or similar requirement
(including without limitation a request or requirement which
affects the manner in which any Bank or any Bank Holding
Company allocates capital resources to its commitments,
including its obligations hereunder) and as a result
thereof, in the sole opinion of such Bank, the rate of
return on capital of such Bank or Bank Holding Company as a
consequence of its obligations hereunder is or will be
reduced to a level below that which such Bank or Bank
Holding Company could have achieved but for such
circumstances, then and in each such case upon notice to
Borrower through Agent, Borrower shall pay to such Bank such
additional amount or amounts as shall compensate such Bank
for such reduction in rate of return for (i) any Loans
outstanding under any Interest Period commencing after such
notification, (ii) any Loans bearing interest at the Base
Rate with respect to the period after the end of the
calendar month in which such notification was given, (iii)
any portion of the affected Bank's Commitment outstanding
<PAGE> 21
with respect to the period after the end of the calendar
month in which such notification was given. If a Bank
determines that it may be entitled to claim any additional
amounts pursuant to this subsection during the next
succeeding Interest Period or month, as the case may be, it
shall promptly notify, through Agent, Borrower and each
other Bank of the event by reason of which it has become so
entitled together with sufficient detail to quantify such
additional amount. A certificate as to any such additional
amount or amounts submitted by a Bank, through Agent, to
Borrower and the other Banks shall, in the absence of
manifest error, be final and conclusive. In determining
such amount, a Bank may use any reasonable averaging and
attribution methods.
Section 2.7 Taxes.
(a) Payments Free of Taxes. Subject to
subsection (e) below, any and all payments by Borrower
hereunder or any other Credit Document shall be made free
and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, (i) in the case of each Bank and Agent, taxes
imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank or Agent
(as the case may be) is organized or any political
subdivision thereof, (ii) in the case of each Bank with
respect to payments made under any Credit Document, taxes
imposed on its income, and franchise taxes imposed on it, by
the jurisdiction of such Bank's Applicable Lending Office,
or any political subdivision thereof and (iii) in the case
of each Bank and Agent, taxes imposed by the United States
by means of withholding taxes if and to the extent that such
withholding taxes shall be in effect and shall be applicable
on the date hereof under current laws and regulations
(including judicial and administrative interpretations
thereof) to payments to be made for the account of such
Bank's Applicable Lending Office, or to Agent (all taxes
described in subclauses (i), (ii) and (iii) being referred
to as "Excluded Taxes" and all taxes, levies, imposts,
deductions, charges, withholdings and liabilities not
described in subclauses (i), (ii) and (iii) being
hereinafter referred to as "Taxes"). If Borrower shall be
required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any other Credit Document
to any Bank or Agent, (i) the sum payable shall be increased
as may be necessary so that after making all required
deductions (including deductions applicable to additional
sums payable under this Section) such Bank or Agent (as the
case may be) receives an amount equal to the sum it would
<PAGE> 22
have received had not such deductions been made, (ii)
Borrower shall make such deductions, and (iii) Borrower
shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable
Law (and shall be entitled to any "Tax Credit" with respect
to such payment pursuant to Subsection (i) of this Section).
(b) Other Taxes. In addition, Borrower agrees to
pay any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies
(other than Excluded Taxes) which arise from any payment
made hereunder or any other Credit Document or from the
execution, delivery or registration or filing or recording
of, or otherwise with respect to, this Agreement or any
other Credit Document or document delivered hereunder or
under any other Credit Document (hereinafter referred to as
"Other Taxes").
(c) Tax Indemnity. Borrower will indemnify each
Bank and Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this
Section) paid by such Bank or Agent (as the case may be) and
any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days
from the date such Bank or Agent (as the case may be) makes
written demand therefor. If in the reasonable opinion of
Borrower or such Bank, any amount has been paid with respect
to Taxes or Other Taxes which are not correctly or legally
asserted, such Bank will cooperate with Borrower (such
cooperation to be without expense or liability to such Bank)
in seeking to obtain a refund of such amount; provided,
that, such Bank shall not be required to cooperate in
seeking to obtain a refund unless (i) if such Bank requests,
Borrower has delivered to such Bank an opinion of
independent tax counsel selected by Borrower and reasonably
acceptable to such Bank to the effect that there is a
reasonable possibility of success, (ii) such Bank has
received from Borrower satisfactory indemnification for any
liability, loss, cost or expense arising out of or relating
to the effort to obtain such refund, and (iii) Borrower
shall have indemnified such Bank for the payment of such
Taxes or Other Taxes pursuant to this subsection (c). Each
Bank and Agent, as the case may be, will promptly (within 30
days) notify Borrower of the assertion of any liability by
any taxing authority with respect to Taxes or Other Taxes
and any payment by such Bank or Agent of such Taxes or Other
Taxes; provided, that, the failure to give such notice shall
not relieve Borrower of its obligations hereunder to make
<PAGE> 23
indemnification for any such liability except that Borrower
shall not be liable for penalties or interest accruing after
such 30 day period until such time as it receives the notice
contemplated above, after which time it shall be liable for
interest and penalties accruing after such receipt.
(d) Evidence of Tax Payments. Within 30 days
after the date of any payment of Taxes, Borrower will (as to
Taxes paid by it) furnish to Agent, at the Agency Office,
the original or a certified copy of a receipt or other
evidence satisfactory to Agent of payment thereof.
(e) Tax Forms. On or before the Closing Date in
the case of each Bank originally a party hereto, or on or
before the effective date of the Assignment and Acceptance
Agreement pursuant to which it became a Bank in the case of
an Assignee, and within 30 days following the first day of
each calendar year or if otherwise reasonably requested from
time to time by Borrower or Agent, each Bank organized under
the laws of a jurisdiction outside the United States shall
provide Agent and Borrower with three counterparts of each
of the forms prescribed by the Internal Revenue Service
(Form 1001 or 4224, or successor form(s), as the case may
be) of the United States certifying as to such Bank's (if
applicable) status for purposes of determining exemption
from United States withholding taxes with respect to all
payments to be made to such Bank under any Credit Document.
Unless Borrower and Agent have received within 10 (ten) days
after Borrower or Agent requests such forms or other
documents satisfactory to them indicating that payments
under any Credit Document are not subject to United States
withholding tax, Borrower or Agent (if not withheld by
Borrower) shall withhold taxes from such payments at the
applicable statutory rate, without any obligation to "gross-
up" or make such Bank or Agent whole under subsection (a) of
this Section, provided, however, that, Borrower shall have
the obligation to make such Bank or Agent whole and to
"gross-up" under Subsection (a) of this Section, if the
failure to so deliver such forms or make such statements
(other than the forms and statements required to be
delivered on or made prior to the Closing Date or on the
effective date of the Assignment and Acceptance Agreement in
the case of an Assignee) is the result of the occurrence of
an event (including, without limitation, any change in Law)
which (alone or in conjunction with other events) renders
such forms inapplicable, that would prevent such Bank or
Agent from making the statements contemplated by such forms
or which removes or reduces an exemption (whether partial or
complete) from withholding tax previously available to such
Bank or Agent. Each Bank (and Agent, if applicable) will
promptly notify Borrower of the occurrence (when known to
<PAGE> 24
it) of an event contemplated by the foregoing proviso. Upon
request of Borrower, each Bank which is organized under the
laws of the United States or any State thereof shall provide
Borrower and Agent with two duplicates of a statement
conforming to the requirements of Treasury Regulation
1.1441-5(b) or any successor thereto and two duplicates of a
duly completed Form W-9 or successor form.
(f) Change of Applicable Lending Office. Any
Bank claiming any additional amounts payable pursuant to
this Section shall use its reasonable best efforts
(consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office, if the making of such a change
would avoid the need for or reduce the amount of, any such
additional amounts which may thereafter accrue and would
not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank.
(g) Survival. Without prejudice to the survival
of any other agreement of Borrower hereunder, the agreement
and obligations of Borrower contained in this Section shall
survive the payment in full of the Obligations hereunder for
a period expiring concurrently with the expiration of the
statute of limitations applicable to claims made by the tax
authorities to collect Taxes or Other Taxes.
(h) Maintenance of Tax Exemptions. Each Bank
(and Agent with respect to payments to Agent for its own
account) agrees that (i) it will take all reasonable actions
by all usual means to maintain all exceptions, if any,
available to it from the United States withholding taxes
(whether available by treaty, existing administrative
waiver, by virtue of the location of any Bank's Applicable
Lending Office or otherwise) and (ii) otherwise cooperate
with Borrower to minimize amounts payable by Borrower under
this Section; provided, however, that, each Bank and the
Agent shall not be obligated by reason of this subsection
(h) to disclose any information regarding its tax affairs or
tax computations or to reorder its tax or other affairs or
tax or other planning.
(i) Tax Credits. If any Bank shall receive a
credit or refund from a taxing authority with respect to,
and actually resulting from, an amount of Taxes or Other
Taxes actually paid to or on behalf of such Bank by Borrower
(a "Tax Credit"), such Bank shall promptly notify Borrower
of such Tax Credit. If such Tax Credit is received by such
Bank in the form of cash, such Bank shall promptly pay to
Borrower the amount so received with respect to the Tax
Credit. If such Tax Credit is not received by such Bank in
<PAGE> 25
the form of cash, such Bank shall pay the amount of such Tax
Credit not later than the time prescribed by applicable Law
for filing the return (including extensions of time) for
such Bank's taxable period which includes the period in
which such Bank receives the economic benefit of such Tax
Credit. In any event, the amount of any Tax Credit payable
by a Bank to Borrower pursuant to this subsection (i) shall
not exceed the actual amount of cash refunded to, or credits
received and usable by, such Bank from a taxing authority.
In determining the amount of any Tax Credit, a Bank may use
such apportionment and attribution rules as such Bank
customarily employs in allocating taxes among its various
operations and income sources and such determination shall
be conclusive absent manifest error. Borrower further
agrees promptly to return to a Bank the amount paid to
Borrower with respect to a Tax Credit by such Bank if such
Bank is required to repay, or is determined to be ineligible
for, a Tax Credit for such amount.
Section 2.8 Additional Action in Certain Events.
If any event or condition described in Section 2.6 or 2.7
has occurred or exists that increases the cost to Borrower
of the Loans by any Bank or Banks, such Bank or Banks and
Borrower, subject to Borrower's current payment of such
costs as herein provided, agree to negotiate in good faith
in order to reach a mutual agreement in respect of such
increased costs; provided, that, such Bank or Banks shall
not be required to so negotiate for a period in excess of 60
days after the date such Bank or Banks first notified
Borrower of such increased cost, and if Borrower and such
Bank or Banks are unable to reach a mutual agreement in
respect of such increased costs, Borrower shall pay such
amounts as are required to be paid pursuant to Section 2.6
or 2.7 hereof, as and when due; and provided, further,
Borrower shall have the right at any time to prepay in full
the affected Loans and terminate the Commitment of any Bank
or Banks so affected by such event or condition, upon giving
Agent and such Bank or Banks at least five Banking Days'
prior irrevocable notice thereof specifying the date of
prepayment and upon such prepayment and termination the
affected Commitment or Commitments shall be terminated. Any
such prepayment hereunder shall be made by Borrower, without
premium, together with interest thereon and any other
amounts payable hereunder, on the date specified in such
notice. Prepayments made under this Section, if not made on
a Maturity Date, shall be made together with the additional
payment for Interest Period breakage costs referred to in
Section 2.3.
Section 2.9 Extension of Commitments. (a) At
any time after August 31, 1994 and prior to October 31,
<PAGE> 26
1994, Borrower may, by notice to Agent, request an extension
of the Termination Date for the Commitments from the date
then constituting the Termination Date to August 31, 1997.
The Agent shall promptly notify each Bank of such request.
If all of the Banks consent in writing to such extension,
the Agent shall, within three Banking days of its receipt of
the last written consent, notify the Borrower in writing
that such request has been accepted and, upon the giving of
such notice, the Termination Date shall be so extended,
effective as of the close of business on the date such
notice if given. If the Agent fails to give such notice of
acceptance within such time or if all Banks fail to give
such written consents, the request for extension shall be
deemed rejected. If any Bank fails to give notice of
acceptance as herein provided, the request for extension
shall be deemed rejected by such Bank. If requested by any
Bank, the Agent shall, to the extent known by Agent, notify
such Bank of the status of the other Banks' Commitments. If
the written consent of all the Banks to any such request for
extension has not been received by the Agent on or before
the Banking Day which is thirty days after the Agent
notifies each Bank of Borrower's request for an extension
(the "1994 Extension Response Date"), Borrower may withdraw
its request for such extension any time thereafter. The
written consent of the Banks to any such request for
extension shall be in form and substance satisfactory to the
Agent in its sole discretion. Each Bank may accept, reject
or fail to act upon such request for extension in its sole
and absolute discretion; provided, however, that if any Bank
has failed to give its written consent to such extension to
Agent on or before the 1994 Extension Response Date, such
Bank shall, within three Banking Days after receipt of
notice from Agent requiring such assignment, assign such
Bank's rights and obligations under this Agreement and the
other Credit Documents to one or more Assignees (which may
be one or more Banks, including Agent in its capacity as a
Bank) designated by Agent, such assignment to be at par
(based on the non-consenting Bank's outstanding Loans and
accrued interest and Fees on the effective date of such
assignment) and to be made pursuant to subsections (a)
through (d) of Section 8.11 under one or more Assignment and
Acceptance Agreements, which shall be executed by such non-
consenting Bank upon the execution thereof by such Assignee
or Assignees. Nothing herein shall be deemed to impose any
obligation on Agent to issue any such notice requiring
assignment or to impose any obligation on any Bank
(including Agent in its capacity as a Bank) to become
assignees of such non-consenting Bank. Borrower shall pay
to any non-consenting Bank any amounts due pursuant to
Section 2.3(c) hereof, in respect of any assignment of
outstanding Eurodollar Rate Loans required to be made
<PAGE> 27
during any Interest Period. Notwithstanding the foregoing,
no extension of the Commitments shall be effective unless
the Tranche A Commitments shall have been simultaneously
extended by a period equal in duration to the period of the
extension hereunder.
(b) On or before the Banking Day which is sixty
days prior to a termination date for Tranche A Commitments
in any year, Borrower may, by notice to Agent, request an
extension of the Termination Date for the Tranche B
Commitments from the date then constituting the Termination
Date to any date not more than 364 days after the earlier of
(i) such Termination Date or (ii) the Renewal Effective Date
(as hereinafter defined). The Agent shall promptly notify
each Bank of such request. If all of the Banks consent in
writing to such extension, the Agent shall, within three
Banking days of its receipt of the last written consent,
notify the Borrower in writing that such request has been
accepted and, upon the giving of such notice, the
Termination Date shall be so extended, effective as of the
close of business on the date such notice if given (the
"Renewal Effective Date"). If the Agent fails to give such
notice of acceptance within such time or if all Banks fail
to give such written consents, the request for extension
shall be deemed rejected. If any Bank fails to give notice
of acceptance as herein provided, the request for extension
shall be deemed rejected by such Bank. If requested by any
Bank, the Agent shall, to the extent known by Agent, notify
such Bank of the status of the other Banks' Commitments. If
the written consent of all the Banks to any such request for
extension has not been received by the Agent on or before
the Banking Day which is thirty days prior to the
Termination Date (the "Extension Response Date"), Borrower
may withdraw its request for such extension any time
thereafter. The written consent of the Banks to any such
request for extension shall be in form and substance
satisfactory to the Agent in its sole discretion. Each Bank
may accept, reject or fail to act upon such request for
extension in its sole and absolute discretion; provided,
however, that if any Bank has failed to give its written
consent to such extension to Agent on or before the
Extension Response Date, such Bank shall, within three
Banking Days after receipt of notice from Agent requiring
such assignment, assign such Bank's rights and obligations
under this Agreement and the other Credit Documents to one
or more Assignees (which may be one or more Banks, including
Agent in its capacity as a Bank) designated by Agent, such
assignment to be at par (based on the non-consenting Bank's
outstanding Loans and accrued interest and Fees on the
effective date of such assignment) and to be made pursuant
to subsections (a) through (d) of Section 8.11 under one or
<PAGE> 28
more Assignment and Acceptance Agreements, which shall be
executed by such non-consenting Bank upon the execution
thereof by such Assignee or Assignees. Nothing herein shall
be deemed to impose any obligation on Agent to issue any
such notice requiring assignment or to impose any obligation
on any Bank (including Agent in its capacity as a Bank) to
become assignees of such non-consenting Bank. Borrower
shall pay to any non-consenting Bank any amounts due
pursuant to Section 2.3(c) hereof, in respect of any
assignment of outstanding Eurodollar Rate Loans required to
be made during any Interest Period. Notwithstanding the
foregoing, no extension of the Commitments shall be
effective unless the Tranche A Commitments shall have been
simultaneously extended by a period equal in duration to the
period of the extension hereunder.
Section 2.10 Reduction or Termination of
Commitments. On or after the Closing Date, Borrower may
upon at least three Banking Days' notice to Agent at the
Agency Office, terminate in whole at any time, or ratably
reduce from time to time by an aggregate amount of
$5,000,000 or an integral multiple thereof, the then
unutilized Commitments of the Banks; provided that any such
reduction or termination shall simultaneously reduce or
terminate both the unutilized Tranche A Commitment and the
unutilized Tranche B Commitment by an amount equal to (x) in
the case of the Tranche A Commitment, the product of (i) the
aggregate amount of such reduction or termination multiplied
by (ii) the fraction, the numerator of which is the total
amount of Tranche A Commitments then outstanding (prior to
giving effect to such reduction or termination), and the
denominator of which is the total amount of all Tranche A
and Tranche B Commitments then outstanding (prior to giving
effect to such reduction or termination) and (y) in the case
of the Tranche B Commitment, the product of (i) the
aggregate amount of such reduction or termination multiplied
by (ii) the fraction, the numerator of which is the total
amount of Tranche B Commitments then outstanding (prior to
giving effect to such reduction or termination), and the
denominator of which is the total amount of all Tranche A
and Tranche B Commitments then outstanding (prior to giving
effect to such reduction or termination). If the
Commitments are terminated in their entirety, all accrued
Fees thereon shall be payable on the effective date of such
termination.
Section 2.11. Existing Credit Agreement. On the
Effective Date, the Existing Credit Agreement shall be
terminated and the following provisions shall apply:
<PAGE> 29
(a) Existing Loans. All Existing Loans shall
become Loans of the same tenor made by Existing
Participating Banks which are Banks hereunder, as if such
Existing Loans were made in accordance with and pursuant to
this Agreement.
(b) Initial Loans. The initial Loans made under
this Agreement (other than Existing Loans deemed Loans under
Section 2.11(a) hereof) shall, notwithstanding any contrary
provision in Section 2.1(a) hereof, (i) reflect (x) that
Existing Loans shall be deemed Loans by Banks that were
Existing Participating Banks, (y) that certain Banks were
not Existing Participating Banks and have no Loans
outstanding as of the Effective Date, and (z) that the
Commitments of the Banks differ from the Existing
Commitments, and (ii) be made in a manner so that after
giving effect to the matters referred to in clause (i)
hereof, the aggregate Loans outstanding (including Existing
Loans and initial Loans) shall be made ratably by the Banks
according to each Bank's Commitment. All determinations
hereunder relating to the amount of any initial Loan to be
funded by each Bank in order to give effect to this Section
2.11(b) shall be made by the Agent and shall, absent
manifest error, be conclusive and binding for all purposes
of this Agreement.
(c) Existing Commitments. All Existing
Commitments shall be cancelled and cease to have any force
or effect.
(d) Fees. No fees shall accrue under Section 2.5
of the Existing Credit Agreement after the Effective Date.
All accrued fees under Section 2.5 of the Existing Credit
Facility through the Effective Date shall be paid in full on
the Effective Date.
(e) Other Obligations. The obligations of the
Borrower under Sections 2.5 through 2.7, 8.4, and 8.13
through 8.17 of the Existing Credit Agreement, inclusive,
and of the Existing Participating Banks under Section 7.5 of
the Existing Credit Agreement, shall survive the termination
of the Existing Credit Agreement.
ARTICLE III
Conditions of Commitments
Section 3.1 Conditions Precedent to Initial
Loans. The obligations of each Bank to make its initial
Loan is subject to the conditions precedent that Agent shall
<PAGE> 30
have received on or before the day of the initial Loan the
following, dated in the case of the certificates described
in clauses (a), (b) and (c) below on or after June 10, 1994,
and in all other cases, as of a date reasonably near the
Effective Date (except as otherwise specified herein), in
form and substance satisfactory to Agent:
(a) Certificate of Incorporation. A copy of the
certificate of incorporation of Borrower, and each amendment
thereto, certified by the secretary of State of Delaware as
being a true and correct copy thereof;
(b) Certificate of Good Standing. A certificate
of the secretary of State of Delaware listing the Borrower's
certificate of incorporation and each amendment thereto on
file in his office and certifying that (i) such amendments
are the only amendments to each such certificate of
incorporation on file in his office, (ii) Borrower has paid
all franchise taxes to the date of such Certificate and
(iii) Borrower is duly incorporated and in good standing
under the laws of such jurisdiction;
(c) Certificate of Qualification. A certificate
or equivalent document of the secretary of state of the
State of New York certifying that Borrower has duly
qualified to do business in such jurisdiction as a foreign
corporation and is in good standing under such
qualification;
(d) By-Laws and Resolutions. Copies of
Borrower's by-laws, of the resolutions of Borrower's Board
of Directors approving each Credit Document to which
Borrower is a party, and of all documents evidencing other
necessary corporate action and governmental approvals, if
any, with respect to each such Credit Document, certified as
true and correct in each case by a Responsible Officer of
Borrower;
(e) Incumbency Certificate. A certificate of a
Responsible Officer of Borrower certifying the names and
true signatures of the officers of Borrower authorized to
sign each Credit Document to which it is a party and the
other documents to be delivered by it hereunder;
(f) Opinion of Borrowers' Counsel. A favorable
opinion of counsel to Borrower, which counsel shall be
reasonably acceptable to Agent, substantially in the form of
Exhibit D hereto, and as to such other matters as Agent or
Majority Banks may reasonably request;
<PAGE> 31
(g) Closing Certificates. A Compliance
Certificate; and
(h) Fees. Payment in full of the Fees (including
amounts payable under Section 2.11(d) hereof) which are to
be paid on or before the Effective Date.
Section 3.2 Conditions Precedent to Each Loan.
The Commitment of each Bank to make each Loan shall be
subject to the further conditions precedent that on the date
of such Loan:
(a) the following statements shall be true (and
the delivery of a Notice of Borrowing shall be deemed to
constitute a representation and warranty by Borrower that on
the date of such Loan such statements are true):
(i) The representations and warranties contained
in Section 4.1 of this Agreement are correct on and as
of the date of such Loan, before and after giving
effect to such Loan, and to any other Loans to be made
contemporaneously therewith, and to the application of
the proceeds therefrom, as though made on and as of
such date; and
(ii) No event has occurred and is continuing, or
would result from such Loan or from any other Loans to
be made contemporaneously therewith, or from the
application of the proceeds therefrom, which
constitutes, or with the lapse of time or the giving of
notice or both would constitute, an Event of Default;
and
(iii) After giving effect to (x) such Loan together
with all other Loans to be contemporaneously made
therewith and (y) the repayment of any Loans which are
to be contemporaneously repaid at the time such Loan is
made, such Loan will not result in the then outstanding
total amount of all Loans exceeding the then total
amount of all Commitments; and
(b) Agent shall have received such other
approvals, opinions or documents as Agent or Majority Banks
may reasonably request.
<PAGE> 32
ARTICLE IV
Representations and Warranties
Section 4.1 Representations and Warranties of
Borrowers. Borrower represents and warrants as follows:
(a) Organization of Credit Parties. Borrower and
each Material Subsidiary of Borrower is duly organized and
existing under the Laws of the jurisdiction of its
formation, and is properly qualified to do business and in
good standing in, and where necessary to maintain its rights
and privileges has complied with the fictitious name statute
of, every jurisdiction where the failure to maintain such
qualification, good standing or compliance could reasonably
be expected to materially adversely affect Borrower's
ability to perform its obligations hereunder and under any
other Credit Document.
(b) Authorization of Credit Documents. The
execution, delivery and performance of this Agreement and
all other Credit Documents to which Borrower is a party are
within Borrower's powers and have been duly authorized.
This Agreement has been validly executed and delivered on
behalf of Borrower.
(c) Government Approvals. No approval, consent,
exemption or other action by, or notice to or filing with,
any governmental authority or other Person is necessary in
connection with the execution, delivery, performance or
enforcement of this Agreement or any other Credit Document,
except as may have been obtained and certified copies of
which have been delivered to each Bank.
(d) No Conflicts. The execution, delivery and
performance of this Agreement and the other Credit Documents
will not (i) violate (A) the certificate of incorporation or
by-laws (or comparable documents) of Borrower or any
Subsidiary, (B) any Law or (C) any provision of any
contract, agreement, indenture or instrument to which
Borrower or any Subsidiary is a party or by which any of its
properties is bound or (ii) be in conflict with, or result
in a breach of or constitute a default under, any contract,
agreement, indenture or instrument referred to in (d)(i)(C)
above, or (iii) result in the creation or imposition of any
Lien, except Liens permitted under Section 5.2(a) hereof.
(e) Enforceability of Credit Documents. This
Agreement is, and each other Credit Document to which
Borrower is a party when delivered hereunder will be, a
legal, valid and binding agreement of Borrower enforceable
<PAGE> 33
against Borrower in accordance with their respective terms,
except for bankruptcy and similar laws affecting the
enforcement of creditors' rights generally and for the
availability of equitable remedies where equitable remedies
are sought.
(f) Title to Property. Borrower and each
Subsidiary of Borrower has good and marketable title to its
properties and assets free and clear of all Liens or rights
of others, except for (i) Liens permitted by Section 5.2(a)
and (ii) Liens directly or indirectly securing the
Obligations.
(g) Compliance with Law. Borrower and each
Subsidiary is in compliance with all applicable Laws,
including, without limitation, those relating to hazardous
materials or wastes or hazardous or toxic substances, where
the failure to maintain such compliance could reasonably be
expected to materially adversely affect Borrower's
consolidated financial condition or results of operations
from that which existed on the date of the financial
statements referenced in subsection (k) of this Section or
Borrower's ability to perform its obligations hereunder or
under any other Credit Document.
(h) No Litigation. Except as disclosed in the
notes to Borrower's financial statements referred to in
subsection (k) of this Section, there are no suits,
proceedings, claims or disputes (including, without
limitation, those alleging violation of any applicable Law
relating to hazardous materials or wastes, or hazardous or
toxic substances) pending or, to the knowledge of Borrower,
threatened, against or affecting Borrower or any of its
properties or assets, or any Subsidiary of Borrower or any
of its property or assets, which could reasonably be
expected to materially adversely affect Borrower's
consolidated financial condition or results of operations as
compared to the date of the financial statements referenced
in subsection (k) of this Section or Borrower's ability to
perform its obligations hereunder or under any other Credit
Document.
(i) Events of Default. No event has occurred or
would result from the incurring of obligations by Borrower
under this Agreement or any other Credit Document which is,
or upon the lapse of time or notice or both would become, an
Event of Default.
(j) Subsidiaries. All Material Subsidiaries of
Borrower and the nature and extent of Borrower's ownership
interest therein have been heretofore disclosed in writing
<PAGE> 34
to Agent and the Banks in accordance with Section
5.1(h)(ix)(D) or otherwise.
(k) Financial Information. All financial
statements dated March 31, 1994, information and data
furnished by Borrower to Agent or Banks are complete, and
such financial statements have been prepared in accordance
with generally accepted accounting principles consistently
applied and fairly present the consolidated financial
condition and results of operations of Borrower as of such
date, and when compared to such financial condition and
results of operation on such date, (a) there has been no
material adverse change in Borrower's consolidated financial
condition or results of operations or ability to perform its
obligations under this Agreement or any other Credit
Documents, and (b) neither Borrower nor any Subsidiary has
any contingent obligations, liabilities for taxes or other
outstanding financial obligations, other than the
Obligations, which are material, except as disclosed in such
statements, information and data.
(l) Margin Regulations. (i) Borrower and its
Subsidiaries are not engaged in the business of extending
credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation G, T, U, or X of the
Board of Governors of the Federal Reserve System), (ii) no
proceeds of any Loan will be used in a manner which would
violate, or result in a violation of, such Regulation G, T,
U, or X, and (iii) after applying the proceeds of any Loan,
and the proceeds of all other Loans made on or before the
time of making such Loan, not more than 25 percent of the
value (as determined in accordance with generally accepted
accounting principles as consistently applied by Borrower --
unless some other method of valuation is required to be used
for the purpose of determining the applicability of the
exclusion of 12 CFR 221.2(g)(2)(i), and then as determined
by such other method of valuation) of the assets and
properties of the Borrower subject to Section 5.2(a) is
represented by margin stock.
(m) ERISA. There are no Plans or Multiemployer
Plans.
(n) Investment Company Act. Neither Borrower nor
any Subsidiary is an "investment company" or a company
"controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended. Neither
Borrower nor any Subsidiary is a "holding company" or a
"subsidiary" of a "holding company" as defined in the Public
Utility Holding Act of 1935, as amended.
<PAGE> 35
(o) Taxes. Borrower and each of its Subsidiaries
has filed or caused to be filed all tax returns which to the
knowledge of Borrower are required to be filed, and has paid
all taxes shown to be due and payable on said returns or any
assessments made against it or any of its property and all
other taxes, fees and other charges imposed on it or on any
of its property by any governmental authority (other than
those the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with
respect to which reserves and conformity with generally
accepted accounting principles have been provided on the
books of Borrower or its Subsidiaries, as the case may be);
and, to the knowledge of Borrower, no claims are being
asserted with respect to any such taxes, fees or other
charges which are material either as to amount or
potentially adverse affect when considered with respect to
the financial and business condition of Borrower and its
Subsidiaries taken as a whole.
Section 4.2 Representations and Warranties
Restated. The representations and warranties contained in
Section 4.1 hereof and in any instrument, agreement or
certificate executed and delivered in connection herewith
shall be deemed to be made on and as of the date of each
Loan.
ARTICLE V
Covenants of Credit Parties
Section 5.1 Affirmative Covenants. So long as
any Obligations shall remain outstanding or any of the
Commitments shall remain available hereunder, Borrower will,
unless Majority Banks shall otherwise consent in writing:
(a) Payment of Taxes, Etc. Pay and discharge,
and cause each of its Subsidiaries to pay and discharge,
before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon
it or upon its property, and (ii) all lawful claims which,
if unpaid, might by Law become a Lien upon its property;
provided, however, that neither Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim which is being contested in
good faith and by proper proceedings and as to which
adequate reserves have been established.
(b) Maintenance of Insurance. Maintain, and
cause each of its Subsidiaries to maintain, or cause to be
maintained for each of its Subsidiaries, with responsible
<PAGE> 36
and reputable insurance companies or associations acceptable
to Majority Banks insurance in such amounts and covering
such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same
general areas in which Borrower or any Subsidiary operates.
(c) Preservation of Corporate Existence, Etc.
Preserve and maintain, and cause each Material Subsidiary to
preserve and maintain, (i) its corporate existence, rights
(charter and statutory), and franchises, and (ii) in the
case of Borrower, Borrower ownership and control of all
Material Subsidiaries, and will continue, and cause each
Material Subsidiary to continue, in the business of
designing and licensing the use of computer software
products and employ all of its and their respective assets
in such business.
(d) Compliance with Laws, Etc. Comply, and cause
each of its Subsidiaries to comply, with the requirements of
all applicable Laws noncompliance with which could
materially adversely affect its business or credit.
(e) Visitation Rights. At any reasonable time
and from time to time, permit Agent or any of Banks or any
agents or representatives thereof, to examine (at the
location where normally kept) and make abstracts from the
records and books of account of, and visit the properties of
Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of Borrower and its Subsidiaries with
any of their respective officers or directors and discuss
the affairs, finances and accounts of Borrower and its
Subsidiaries with its independent certified public
accountants and permit such accountants to disclose to Agent
or any of Banks any and all financial statements and other
reasonably requested information of any kind that they may
have with respect to Borrower and its Subsidiaries.
(f) Keeping of Books. Keep, and cause each of
its Subsidiaries to keep, proper books of record and
account, in which full and correct entries shall be made of
all financial transactions and the assets and business of
Borrower and its Subsidiaries in a form, in the case of
Borrower, such that Borrower may readily produce no less
frequently than at the end of each of its fiscal quarters,
financial statements on a consolidated basis in accordance
with generally accepted accounting principles consistently
applied (subject, in the case of the first three fiscal
quarters of each fiscal year, to year end audit
adjustments).
<PAGE> 37
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties which are used or useful in
the conduct of its business in good working order and
condition, ordinary wear and tear excepted, including all
copyrights, trademarks, service marks, mask works, trade
names, brands, patent rights, processes, designs and other
intellectual property, and all registrations and
applications for registration thereof, and any licenses with
respect to any of the foregoing which are used or useful in
the conduct of its business.
(h) Reporting Requirements. Furnish to Agent and
each Bank:
(i) Quarterly Financial Statements of Company.
As soon as available and in any event within 45 days
after the end of each of the first three fiscal
quarters of each fiscal year of Borrower, consolidated
balance sheets of Borrower and its Subsidiaries as of
the end of such quarter and consolidated statements of
income and retained earnings of Borrower and its
Subsidiaries for the period commencing at the beginning
of such fiscal year and ending with the end of such
quarter, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by a
Responsible Officer of Borrower as having been prepared
in accordance with generally accepted accounting
principles consistently applied, together with a
Compliance Certificate as of the end of such fiscal
quarter;
(ii) Annual Financial Statements of Company. As
soon as available and in any event within 90 days after
the end of each fiscal year of Borrower, the
consolidated balance sheets of Borrower and its
Subsidiaries as of the end of such fiscal year and the
consolidated statements of income and retained earnings
and the consolidated statements of cash flow of
Borrower and its Subsidiaries for such fiscal year, in
the case of such consolidated financial statements,
certified, without material qualifications or
limitations as to scope of the audit, by Ernst & Young
or other independent public accountants of recognized
standing acceptable to Majority Banks, as having been
prepared in accordance with generally accepted
accounting principles, consistently applied, together
with a Compliance Certificate as of the end of such
fiscal year;
<PAGE> 38
(iii) Notice of Defaults. As soon as possible and
in any event within five days after the occurrence of
each Event of Default and each event which, with the
giving of notice or lapse of time, or both, would
constitute an Event of Default, continuing on the date
of such statement, a statement of a Responsible Officer
of Borrower setting forth details of such Event of
Default or event and the action which Borrower has
taken and proposes to take with respect thereto;
(iv) Shareholder Reports and SEC Filings. Promptly
after the sending or filing thereof, copies of all
reports which Borrower sends to any of its security
holders, and copies of all reports and registration
statements which Borrower files with the Securities and
Exchange Commission or any national securities
exchange;
(v) PBGC Notices. Promptly and in any event
within two Banking Days after receipt thereof by
Borrower or any of its ERISA Affiliates from the
Pension Benefit Guaranty Corporation, copies of each
notice received by Borrower or any such ERISA Affiliate
of the intention of the Pension Benefit Guaranty
Corporation to terminate any Plan or to have a trustee
appointed to administer any Plan;
(vi) Litigation. Promptly after the commencement
thereof, notice of all material actions, suits and
proceedings before any court or governmental
department, commission, board, bureau, agency, or
instrumentality domestic or foreign, affecting Borrower
of the type described in Section 4.1(h) which is known
to Borrower or in respect of which Borrower or any
Subsidiary has been served;
(vii) Indenture Reports. Promptly after the
furnishing thereof, copies of any statement or report
furnished to any holder of the securities of Borrower
or any Subsidiary of Borrower pursuant to the terms of
any indenture or similar agreement and not otherwise
required to be furnished to the Banks pursuant to any
other clause of this Section 5.1(h);
(viii) Additional Information. Such other
information respecting the condition or operations,
financial or otherwise, of Borrower or any Subsidiary
as Majority Banks may from time to time reasonably
request; and
<PAGE> 39
(ix) Significant Events. Promptly upon Borrower's
knowledge thereof, a written statement from a
Responsible Officer of Borrower describing the details
of:
(A) any substantial dispute which may exist
between Borrower or any Subsidiary and any
governmental regulatory body or law enforcement
authority;
(B) any labor controversy resulting in or
threatening to result in a strike or work stoppage
or slowdown against Borrower or its Subsidiaries;
(C) any Material Subsidiary of Borrower
ceasing to be such a Material Subsidiary and the
reasons for such change in status;
(D) any Person becoming a Material
Subsidiary and the reasons why such Person has
become a Material Subsidiary;
(E) any proposal by any public authority to
acquire the assets or business of Borrower or any
Material Subsidiary or to compete with Borrower or
any Material Subsidiary; and
(F) any matter which has resulted or might
reasonably be contemplated to result in a material
adverse change in (l) Borrower's consolidated
financial condition or results of operations or
(2) Borrower's ability to perform its obligations
hereunder or under any other Credit Document.
(i) Use of Loans. Use the proceeds of the Loans
(i) for working capital, and (ii) for the acquisition of
capital stock of a Person or assets in transactions not
otherwise prohibited by this Agreement.
Section 5.2 Negative Covenants. So long as any
Obligations shall remain outstanding or any of the
Commitments shall remain available hereunder, Borrower will
not, without the written consent of Majority Banks:
(a) Liens. Create, incur, assume or suffer to
exist any Lien upon or with respect to any of its assets or
property, or permit any Subsidiary so to do, except: (i)
Liens, if any, in favor of Agent and Banks collectively;
(ii) Liens arising in connection with workers' compensation,
unemployment insurance and other social security
legislation; (iii) Liens in existence on the date hereof
<PAGE> 40
which secure obligations disclosed in the financial
statements referred to in Section 4.1(k) or in the notes
thereto; (iv) Liens placed or existing at the time of any
acquisition on property being acquired by Borrower or any
Subsidiary; (v) Liens for property taxes not yet due and
payable and Liens for taxes not yet due or that are being
contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the
books of Borrower or one of its Subsidiaries, as the case
may be, in accordance with generally accepted accounting
principles; (vi) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business that are not overdue for
more than 30 days or that are being contested in good faith
and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of Borrower or
one of its Subsidiaries, as the case may be, in accordance
with generally accepted accounting principles; (vii)
deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business; (viii) easements, rights-of-way,
restrictions and other similar encumbrances incurred in the
ordinary course of business that, in the aggregate, are not
substantial in amount, and that do not in any case
materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the
business of Borrower and its Subsidiaries; (ix) Liens in
favor of the United States of America for amounts paid to
Borrower or any of its Subsidiaries as progress payments
under government contracts entered into by it; (x) Liens on
assets of corporations that become Subsidiaries after the
date hereof, provided that such Liens exist at the time the
respective corporations become Subsidiaries and are not
created in anticipation thereof; (xi) Liens in favor of
vendors of equipment purchased by Borrower or any
Subsidiary; provided that such Liens are limited to all or a
part of the equipment purchased, and the aggregate amount of
the Debt secured by such Liens at no time exceeds $3,000,000
and such equipment is used in the ordinary course of
business of Borrower or such Subsidiary; and (xii) Liens
granted in any extension, renewal, or replacement of any of
the permitted Liens described above; provided, however, that
the principal amount of Debt secured thereby shall not
exceed the principal amount of Debt so secured at the time
such Lien was originally granted, and that such extension,
renewal or replacement shall be limited to all or part of
the property which secured the Lien so extended, renewed or
replaced (plus improvements and construction on such
property).
<PAGE> 41
(b) Guaranties. Assume, guarantee, endorse or
otherwise become directly or contingently liable for (by
agreement to purchase or lend or otherwise) any obligation
of any other Person other than any Subsidiary, or permit any
Subsidiary so to do, except: (i) guaranties by endorsement
of negotiable instruments for deposit or collection; (ii)
performance bonds or similar transactions in the ordinary
course of business; and (iii) guaranties and other
contingent liabilities which do not exceed $50,000,000 in
the aggregate and which are disclosed in the financial
statements referred to in Section 5.1(h)(ii).
(c) Mergers, Consolidation and Sales of Assets.
(i) Enter into any merger or consolidation or permit any
Subsidiary so to do, except for a merger or consolidation in
which Borrower or a wholly-owned Subsidiary is the surviving
entity, provided that if Borrower is a party to such merger
or consolidation, Borrower is the surviving entity and
provided, further that after giving effect to any such
merger no event or condition shall exist which, with the
lapse of time, the giving of notice, or both, would
constitute an Event of Default; or (ii) sell, lease or
otherwise transfer or dispose of any of its assets which in
the aggregate are material to Borrower, or permit any
Subsidiary so to do, except in the ordinary course of its
business.
(d) Obligations to be Pari Passu. Borrower's
obligations under this Agreement and the other Credit
Documents will rank at all times pari passu as to priority
of payment and in all other respects with all other
unsecured and unsubordinated Debt of Borrower.
(e) Capital Leases. Incur, create, assume or
suffer to exist, or permit any Subsidiary to incur, create,
assume or suffer to exist, any lease of property, real or
personal, the obligations under which should be capitalized
on a balance sheet of Borrower or such Subsidiary in
accordance with generally accepted accounting principles if,
after giving effect to such lease, the aggregate rentals
payable by Borrower and the Subsidiaries under all such
leases would exceed $50,000,000 in any one fiscal year of
Borrower; provided, however, that this subsection 5.2(e)
shall not apply to those capital leases assumed as a result
of mergers and consolidations permitted by Section 5.2(c)
hereof.
(f) Nature of Business. Make any material change
in the character of the business of Borrower and its
Subsidiaries from that conducted on the date hereof.
<PAGE> 42
(g) Fiscal Year. Change its fiscal year.
(h) Consolidated Net Worth. Permit the
Consolidated Net Worth of Borrower and its Subsidiaries at
any time to be less than $750,000,000.
(i) Debt to Net Worth Ratio. Permit the ratio of
(a) the sum of (i) the total Debt of Borrower and its
Subsidiaries on a consolidated basis plus (ii) (without
duplication) the total amount of all liabilities guaranteed
or assumed, directly or indirectly, in any manner or
endorsed (other than for collection or deposit in the
ordinary course of business) or discounted with recourse by
Borrower or any Subsidiary to (b) the Consolidated Net Worth
of Borrower and its Subsidiaries, at any time to be greater
than 1.5 to 1.
(j) ERISA Plans. Create, permit or suffer to
exist any Plan or Multiemployer Plan, or permit any ERISA
Affiliate to do so; provided, however, that Borrower may
permit an ERISA Affiliate to maintain a Plan if, but only to
the extent that, all of the following conditions are
satisfied: (i) such ERISA Affiliate became an ERISA
Affiliate after the date of this Agreement; (ii) such Plan
was in existence on the date the ERISA Affiliate maintaining
or contributing to it became an ERISA Affiliate; (iii) such
Plan is terminated and all of its assets distributed within
180 days of the date upon which such ERISA Affiliate became
an ERISA Affiliate; (iv) the aggregate liability under
Subtitle D of Title IV of ERISA of Borrower and its ERISA
Affiliates with respect to any such Plan does not at any
time exceed $1,000,000 and with respect to all such Plans in
the aggregate does not at any time exceed $2,000,000; (v) no
demand by the Pension Benefit Guaranty Corporation under
ERISA sections 4062, 4063, or 4064 is outstanding against
such ERISA Affiliate on the date it becomes an ERISA
Affiliate; and (vi) no lien described in ERISA section 4068
upon the assets of such ERISA Affiliate is in existence on
the date it becomes an ERISA Affiliate.
ARTICLE VI
Events of Default
Section 6.1 Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) Payments. Borrower shall fail to pay any
principal of, or interest on, any of the Loans when the same
<PAGE> 43
becomes due and payable, or Borrower or shall fail to pay
any other sum due under this Agreement or any other Credit
Documents within five days of the date when the same becomes
due and payable; or
(b) Representations and Warranties. Any
representation or warranty made or deemed to be made by
Borrower or any Subsidiary (or any of its officers) under or
in connection with any Credit Document shall prove to have
been incorrect or misleading in any material respect when
made or deemed to be made; or
(c) Covenants. Borrower or any of its
Subsidiaries shall fail to perform or observe any term,
covenant or agreement contained herein or in any other
Credit Document on its part to be performed or observed
(other than failures to pay which are subject to clause (a)
above) and any such failure shall remain unremedied for 30
days after written notice thereof shall have been given to
Borrower by Agent or any Bank; or
(d) Other Debts. Borrower or any of its
Subsidiaries shall, either singly or in combination, fail to
pay Debt in excess of $5,000,000 in the aggregate (excluding
Debt specified in subsection (a) above) for Borrower and all
such Subsidiaries, or any interest or premium thereon, when
due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such
Debt; or any other default under any agreement or instrument
relating to any such Debt, or any other event, shall occur
and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the
effect of such default or event is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof;
or
(e) Judgments and Orders. Any judgment or order
for the payment of money in excess of $5,000,000 shall be
rendered against Borrower or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) there
shall be any period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
<PAGE> 44
(f) Insolvency or Voluntary Proceedings.
Borrower or any of its Material Subsidiaries is generally
not paying or admits in writing its inability to pay its
debts as such debts become due, or files any petition or
action for relief under any bankruptcy, reorganization,
insolvency, or moratorium Law or any other Law for the
relief of, or relating to, debtors, now or hereafter in
effect, or makes any assignment for the benefit of
creditors, or takes any corporate action in furtherance of
any of the foregoing; or
(g) Involuntary Proceedings. An involuntary
petition is filed against Borrower or any Material
Subsidiary under any bankruptcy statute now or hereafter in
effect, or a custodian, receiver, trustee, assignee for the
benefit of creditors (or other similar official) is
appointed to take possession, custody or control of any
property of Borrower or any of its Material Subsidiaries,
and (i) such petition or appointment is not set aside or
withdrawn or otherwise ceases to be in effect within 60 days
from the date of said filing or appointment, or (ii) an
order for relief is entered against Borrower or such
Material Subsidiary with respect thereto; or
(h) Appropriation. All, or such as in the
opinion of Majority Banks constitutes substantially all, of
the property of Borrower and its Subsidiaries on a
consolidated basis is condemned, seized or appropriated; or
(i) Suspension of Business. Borrower or any
Material Subsidiary voluntarily suspends its business for
more than five (5) Banking Days in any thirty (30) day
period; or
(j) Credit Documents. Any material provision of
any Credit Document shall for any reason cease to be valid
and binding on Borrower or any guarantor of the Obligations,
or Borrower or any guarantor of the Obligations shall so
state in writing;
(k) Change of Control. Any Person (other than
Borrower) becomes an "interested stockholder" (as such term
is defined in Section 203 of the General Corporation Law of
the State of Delaware) of, or otherwise acquires control of,
Borrower or any Material Subsidiary or any Affiliate of
Borrower or any Material Subsidiary, except for any Person
that was an interested stockholder prior to the date of this
Agreement;
then, (i) automatically upon the occurrence of any event
specified in clauses (f) or (g) of this Section 6.1 and at
<PAGE> 45
the option of Majority Banks, by notice from Agent to
Borrower, in any other event, (A) the obligation of each
Bank hereunder or under any other Credit Documents to make
any Loans, shall be immediately terminated, and/or (B) the
total outstanding principal amount of all Loans, all
interest thereon and all other amounts payable under this
Agreement or under any other Credit Document shall be
forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are
hereby expressly waived by Borrower, and/or (ii) Agent shall
upon the request, or may with the consent, of Majority Banks
take such actions under and exercise such rights and
remedies pursuant to the Credit Documents, or any of them,
as Agent may deem appropriate.
ARTICLE VII
Relationship of Agent and Banks
Section 7.1 Authorization and Action. Each Bank
hereby appoints and authorizes Agent, as agent on behalf of
such Bank, to take such action and to exercise such powers
under the Credit Documents as are delegated to Agent by the
terms thereof, together with such powers as are reasonably
incidental thereto. As to any (x) matters requiring or
permitting an approval, consent, waiver, election or other
action by Majority Banks, (y) matters as to which,
notwithstanding any delegation of authority to Agent, Agent
has requested and received instructions from Majority Banks,
and (z) matters not expressly provided for by the Credit
Documents, Agent shall not be required to exercise any
discretion or take any action, but shall be required to act
or to refrain from acting only (and shall be fully protected
in so acting or refraining from acting) upon the
instructions of Majority Banks, and such instructions shall
be binding upon all Banks; provided, however, that Agent
shall not be required to take any action which exposes Agent
to personal liability or which is contrary to any Credit
Document or applicable Law. Agent agrees to give to each
Bank prompt notice of each notice given to it by Borrower
pursuant to the terms of any Credit Document.
Section 7.2 Agent's Reliance, Etc. Neither Agent
nor any of its directors, officers, agents, attorneys or
employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with any
Credit Document, except for its or their own gross
negligence or willful misconduct. Without limiting the
generality of the foregoing, Agent: (i) may treat each Bank
as the holder of the right to payment of its outstanding
<PAGE> 46
Loans until Agent receives and accepts (together with any
required transfer fee) an Assignment and Acceptance
Agreement signed by such Bank and its Assignee in form
satisfactory to the Agent and otherwise in accordance with
the provisions of this Agreement; (ii) may consult with
legal counsel (including counsel for Borrower), independent
public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of
such counsel, accountants or experts if such counsel,
accountants or other experts are selected without gross
negligence or willful misconduct on the part of the Agent;
(iii) makes no warranty or representation to any Bank and
shall not be responsible to any Bank for any statements,
warranties or representations made in or in connection with
any Credit Document; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of any Credit
Document on the part of Borrower or to inspect the property
(including the books and records) of Borrower; (v) shall not
be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value
of any Credit Document or any other instrument or document
furnished pursuant thereto; and (vi) shall incur no
liability under or in respect of any Credit Document by
acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable or
telex) believed by it in good faith to be genuine and signed
or sent by the proper party or parties unless such action by
the Agent constitutes gross negligence or willful misconduct
on its part.
Section 7.3 Agent and Affiliates. With respect
to its Commitments, the Loans made by it and the obligations
of Borrower owed to it under the Credit Documents as a Bank
thereunder, Agent shall have the same rights and powers
under the Credit Documents as any other Bank and may
exercise the same as though it were not the Agent; and the
term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include Agent in its individual capacity. Agent
and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, and generally engage in
any kind of business with, Borrower, any of its Subsidiaries
and any Person who may do business with or own securities of
Borrower or any such Subsidiary, all as if Agent were not
Agent and without any duty to account therefor to Banks.
Section 7.4 Bank Credit Decision. Each Bank
acknowledges that (a) it has, independently and without
reliance upon Agent or any other Bank and based on such
documents and information as it has deemed appropriate, made
<PAGE> 47
its own credit analysis and decision to enter into this
Agreement, (b) it will, independently and without reliance
upon Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking action under this Agreement and the other Credit
Documents, and (c) Agent has no duty or responsibility,
either initially or on a continuing basis, to provide any
Bank with any credit or other information (other than
obtained under the provisions of this Agreement) with
respect thereto, whether coming into its possession before
the date hereof or at any time thereafter.
Section 7.5 Indemnification. Each Bank agrees to
indemnify Agent (to the extent not reimbursed by Borrower),
ratably according to the ratio of such Bank's Commitments to
the Commitments of all Banks, from and against any and all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against Agent in any way relating
to or arising out of the Credit Documents, or any of them,
or any action taken or omitted by Agent under the Credit
Documents, or any of them, provided that no Bank shall be
liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from Agent's
gross negligence or willful misconduct. Without limiting
the foregoing, each Bank agrees to reimburse Agent promptly
upon demand for such Bank's ratable share (based on the
proportion of all Commitments held by such Bank) of any out-
of-pocket expenses (including counsel fees and allocated
costs of in house legal services) incurred by Agent in
connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, the Credit Documents, or any of
them, to the extent that Agent is not reimbursed for such
expenses by Borrower.
Section 7.6 Successor Agent. Agent may resign at
any time as Agent under the Credit Documents by giving 30
days' prior written notice thereof to Banks and Borrower and
may be removed as Agent under the Credit Documents at any
time with or without cause upon written notice to Agent and
Borrower signed by Majority Banks. Upon any such
resignation or removal, Majority Banks shall have the right
to appoint a successor Agent thereunder. If no successor
Agent shall have been so appointed by Majority Banks, and
shall have accepted such appointment, within 30 days after
<PAGE> 48
the retiring Agent's giving of notice of resignation or
Majority Bank's removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of a state
thereof and having a combined capital and surplus of at
least $200,000,000. Unless and until a successor Agent
shall have been appointed as above provided, the retiring
Agent shall serve as a caretaker Agent unless dismissed by
Majority Banks. Upon the acceptance of any appointment as
Agent under the Credit Documents 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 all duties and obligations of the Agent arising
thereafter under the Credit Documents. After any retiring
Agent's resignation or removal as Agent under the Credit
Documents, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken
by it while it was Agent under the Credit Documents.
Section 7.7 Collateral. Each of the Banks
represents to Agent and each of the other Banks that it in
good faith is not relying upon any "margin stock" (as
defined in Regulation U of the Board of Governors of the
Federal Reserve System) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
ARTICLE VIII
Miscellaneous
Section 8.1 Notices. Except as provided in
Article II with respect to the matters therein specified,
all notices, demands, instructions, requests, and other
communications required or permitted to be given to, or made
upon, any party hereto shall be in writing and (except for
financial statements and other related informational
documents to be furnished pursuant hereto which may be sent
by first-class mail, postage prepaid) shall be personally
delivered or sent by registered or certified mail, postage
prepaid, return receipt requested, or by prepaid telex, TWX,
telecopy, or telegram (with messenger delivery specified)
and shall be deemed to be given for purposes of this
Agreement on the day that such writing is received by the
Person to whom it is to be sent pursuant to the provisions
of this Agreement. Unless otherwise specified in a notice
sent or delivered in accordance with the foregoing
provisions of this Section, notices, demands, requests,
instructions, and other communications in writing shall be
<PAGE> 49
given to or made upon each party hereto at the address (or
its telex, TWX, or telecopier numbers, if any) set forth for
such party on the signature pages hereof or, in the case of
any Assignee, set forth in the relevant Assignment and
Acceptance Agreement.
Section 8.2 Successors and Assigns. This
Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns;
provided, however, that Borrower shall not assign this
Agreement or any of the rights of Borrower hereunder without
the prior written consent of all Banks and Agent (the giving
of such consent to be in each Bank's and Agent's sole and
absolute discretion), and any such purported assignment
without such consent shall be absolutely void, and (b) no
Bank shall assign this Agreement or any of the rights of
such Bank hereunder except in accordance with Section 8.11.
Section 8.3 Amendments and Related Matters. No
amendment or waiver of any provision of any Credit Document,
nor consent to any departure by Borrower therefrom, shall in
any event be effective unless the same shall be in writing
and signed by Majority Banks and Borrower and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent with
respect to any Credit Document shall, unless in writing and
signed by all Banks, do any of the following: (a) waive any
of the conditions specified in Section 3.2, (b) increase the
Commitments of any Banks or subject the Banks to any
additional obligations, (c) reduce the principal of, or
interest on, the Loans or fees or other amounts payable to
Banks hereunder or under any other Credit Document,
(d) postpone any date fixed for any payment of principal of,
or interest on, the Loans or any fees or other amounts
payable to Banks hereunder or under any other Credit
Document, (e) change the relative percentage of the
Commitments or of the aggregate unpaid principal amount of
the Loans, or the number of Banks required for Banks or any
of them to take any action hereunder, (f) release any
guaranty of all or any part of the Obligations, or (g) amend
Section 2.9 or this Section 8.3; and provided, further, that
no amendment, waiver or consent with respect to any Credit
Document shall, unless in writing and signed by Agent in
addition to the Banks required above to take such action,
affect the rights or duties of Agent under this Agreement or
any other Credit Document.
Section 8.4 Costs and Expenses; Indemnification.
<PAGE> 50
(a) Expenses. Borrower agrees to pay on demand
(i) all costs and expenses of Agent in connection with the
preparation, execution, delivery, administration,
modification and amendment of the Credit Documents and the
other documents to be delivered under the Credit Documents,
including, without limitation, the reasonable fees and out-
of-pocket expenses of counsel (including allocated costs for
in-house legal services) for Agent with respect thereto and
with respect to advising Agent as to its rights and
responsibilities under the Credit Documents, and (ii) all
costs and expenses of Agent and Banks, if any (including,
without limitation, reasonable counsel fees and expenses
(including allocated costs for in-house legal services)), in
connection with the enforcement (whether through
negotiations, legal proceedings or otherwise), restructuring
(whether or not in the nature of a "work-out"), and the
administration of the Credit Documents and the other
documents to be delivered under the Credit Documents.
(b) Indemnification. Borrower agrees to
indemnify Agent, each Bank and each officer, director,
Affiliate, employee, agent or representative of Agent or
Bank ("Bank Indemnitees") and hold each Bank Indemnitee
harmless from and against any and all liabilities, losses,
damages, costs, and expenses of any kind (including the
reasonable fees and disbursements of counsel for any Bank
Indemnitee (including allocated costs of in-house counsel))
in connection with any investigative, administrative, or
judicial proceeding, whether or not such Bank Indemnitee
shall be designated a party thereto (but if not a party
thereto, then only with respect to such proceedings where
such Bank Indemnitee (i) is subject to legal process
(whether by subpoena or otherwise) or other compulsion of
law, (ii) believes in good faith that it may be so subject,
or (iii) believes in good faith that it is necessary or
appropriate for it to resist any legal process or other
compulsion of law which is purported to be asserted against
it), which may be incurred by any Bank Indemnitee, relating
to or arising out of this Agreement or any of the other
Credit Documents, any of the transactions contemplated
hereby or thereby, or any actual or proposed use of proceeds
of Loans hereunder; provided, however, that no Bank
Indemnitee shall have the right to be indemnified hereunder
for its own gross negligence or willful misconduct.
Section 8.5 Oral Communications. Agent may, but
is not required (except as provided in Section 2.1(b)) to,
accept and act upon oral communications from Borrower. Any
oral communication from Borrower to Agent (including
telephone communications) hereunder shall be immediately
confirmed in writing by Borrower, but in the event of any
<PAGE> 51
conflict between any such oral communication and the written
confirmation thereof, such oral communication shall control
if Agent has acted thereon prior to actual receipt of
written confirmation. Borrower shall indemnify Agent and
hold Agent harmless from and against any and all
liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses and
disbursements of any kind or nature whatsoever (including
attorneys' fees and allocated costs for in-house legal
services) which arise out of or are incurred in connection
with the making of Loans or taking other action in reliance
upon oral communications, except that Agent shall not be
indemnified against its own gross negligence or willful
misconduct.
Section 8.6 Entire Agreement. This Agreement and
the other Credit Documents are intended by the parties
hereto to be a final and complete expression of all terms
and conditions of their agreement with respect to the
subject matter thereof and supersede all oral negotiations
and prior writings in respect to the subject matter hereof.
Section 8.7 Governing Law. THIS AGREEMENT AND
EACH OTHER CREDIT DOCUMENT (EXCEPT TO THE EXTENT THE LAW OF
ANOTHER JURISDICTION IS EXPRESSLY CHOSEN THEREIN) SHALL BE
GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
Section 8.8 Severability. The illegality or
unenforceability of any provision of this Agreement or any
other Credit Document shall not in any way affect or impair
the legality or enforceability of the remaining provisions
of this Agreement or such Credit Document.
Section 8.9 Counterparts. This Agreement may be
executed in as many counterparts as may be deemed necessary
or convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed,
shall be deemed an original but all such counterparts shall
constitute but one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 8.10 Confidentiality. Unless otherwise
required by any Directive, Agent and each Bank agrees not to
voluntarily disclose to unrelated third parties information
clearly marked as "Confidential" provided to it pursuant to
this Agreement or the other Credit Documents, except that
there shall be no obligation of confidentiality in respect
<PAGE> 52
of (i) any information which may be generally available to
the public or becomes available to the public through no
fault of Agent or such Bank; (ii) communications with actual
or prospective participants, or Assignees which undertake in
writing to be bound by this Section 8.10; or (iii) Agent's
or any Bank's directors, officers, employees and other
representatives and agents, and directors, officers,
employees and other representatives and agents of its
Affiliates, legal counsel, auditors and internal bank
examiners, and to the extent necessary or advisable in its
judgment, independent engineering consultants and other
experts or consultants retained by it, if in the case of a
person or entity other than a director, officer, employee,
legal counsel, auditor or internal bank examiner, Agent or
such Bank obtains from such person or entity an undertaking
in writing as to confidentiality substantially identical to
this undertaking.
Section 8.11 Assignments and Participations.
(a) Assignments. Each Bank may, upon at least
five Banking Days' notice to Agent, assign to one or more
financial institutions (as "Assignee") all or a portion of
its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, and
the Loans); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of the
assigning Bank's rights and obligations under this Agreement
being assigned, and any assignment of such Bank's Commitment
and Loans shall cover the same percentage of such Bank's
Commitment and Loans and the same percentage of its Tranche
A Commitment (or Tranche A Loans) and Tranche B Commitment
(or Tranche B Loans), (ii) unless Agent and Borrower
otherwise consent, the amount of the Commitment (such amount
to be determined without reduction for utilization) of the
assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and
Acceptance Agreement with respect to such assignment) shall
not be less than $10,000,000 or shall be an integral
multiple of $1,000,000 in excess thereof, and, unless such
assigning Bank is assigning its entire Commitment, shall not
reduce the amount of the Commitment retained by such Bank to
less than the greater of $10,000,000 or one-half of the
original amount of such Bank's Commitment hereunder, (iii)
each such assignment shall be to an institutional lender,
(iv) the parties to each such assignment shall execute and
deliver to Agent, for its approval, acceptance and recording
an Assignment and Acceptance Agreement, together with a
processing and recordation fee of $2,500, and (v) Borrower
shall consent to such assignment, which consent shall not be
unreasonably withheld. Upon such execution, delivery,
<PAGE> 53
approval, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance
Agreement, (x) the Assignee thereunder shall be a party
hereto as a Bank and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance Agreement, have the rights
and obligations of a Bank hereunder and (y) the Bank
assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance Agreement, relinquish its
rights and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
Agreement, covering all or the remaining portion of an
assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(b) Effect of Assignment. By executing and
delivering an Assignment and Acceptance Agreement, a Bank
assignor thereunder and the Assignee thereunder confirm to
and agree with each other and the other parties hereto as
follows: (i) other than as expressly provided in such
Assignment and Acceptance Agreement, such assigning Bank
makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement
or any other Credit Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other Credit Document or any other
instrument or document furnished pursuant hereto; (ii) such
assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial
condition of Borrower or the performance or observance by
Borrower of any of its obligations under any Credit Document
or any other instrument or document furnished pursuant
hereto or with respect to the taxability of payments to be
made hereunder or under the other Credit Documents; (iii)
such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements
referred to in Section 4.1(k) and Section 5.1(h) and such
other Credit Documents and other documents and information
as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance
Agreement; (iv) such Assignee will, independently and
without reliance upon Agent, such assigning Bank or any
other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this
Agreement; (v) such Assignee appoints and authorizes Agent
to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Credit
Documents as are delegated to Agent by the terms hereof and
<PAGE> 54
thereof, together with such powers as are reasonably
incidental thereto; and (vi) such Assignee agrees that it
will perform in accordance with their terms all of the
obligations which by the terms of this Agreement or any
other Credit Document are required to be performed by it as
a Bank.
(c) Assignment Register. Agent shall maintain at
its Agency Office a copy of each Assignment and Acceptance
Agreement delivered to and accepted by it and a register for
the recordation of the names and addresses of the Banks and
the Commitments of, and principal amount of the Loans owing
to, each Bank from time to time. The entries in such
register shall be conclusive and binding for all purposes,
absent manifest error, and Borrower and Agent and Banks may
treat each Person whose name is recorded in the register as
a Bank hereunder for all purposes of this Agreement. The
register shall be available for inspection by Borrower or
any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(d) Assignments Recorded. Upon its receipt of an
Assignment and Acceptance Agreement executed by an assigning
Bank and an Assignee, Agent shall, if such Assignment and
Acceptance Agreement has been properly completed, and
subject to Borrower's consent as above provided (i) accept
such Assignment and Acceptance Agreement, (ii) record the
information contained therein in the register maintained by
Agent for this purpose and (iii) give prompt notice thereof
to Borrower.
(e) Participations. Each Bank may sell
participations to one or more Persons in or to all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitments, and the Loans owing to it); provided, however,
that (i) such Bank's obligations under this Agreement
(including, without limitation, its Commitments to Borrower
hereunder) shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Bank shall
remain the owner of such Loans for all purposes of this
Agreement, and (iv) Borrower, Agent, and Banks shall
continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under
this Agreement, provided, further, to the extent of any such
participation (unless otherwise stated therein and subject
to the preceding proviso), the assignee or purchaser of such
participation shall, to the fullest extent permitted by law,
have the same rights and benefits hereunder as it would have
if it were a Bank hereunder; and provided, further, that
<PAGE> 55
each such participation shall be granted pursuant to an
agreement providing that the purchaser thereof shall not
have the right to consent or object to any action by the
selling Bank (who shall retain such right) other than an
action which would (i) reduce principal of or interest on
any Loan or Fees in which such purchaser has an interest, or
(ii) postpone any date fixed for payment of principal of or
interest on any such Loan or such fees; and provided,
further, that notwithstanding anything to the contrary in
this subsection (e), the provisions of Sections 2.6 and 2.7
hereof shall apply to the purchasers of participations only
to the extent, if any, that the Bank or Assignee assigning
or selling such participation would be entitled to request
additional amounts under such Sections if such Bank or
Assignee had not sold or assigned such participation.
(f) Assignment to Federal Reserve Bank. Anything
herein to the contrary notwithstanding, each Bank shall have
the right to assign or pledge from time to time any or all
of its Commitments, Loans or other rights hereunder or under
any of the other Credit Documents to any Federal Reserve
Bank.
Section 8.12 Waiver of Trial by Jury. BORROWER,
BANKS, AND AGENT, TO THE MAXIMUM EXTENT THEY MAY LEGALLY DO
SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING
ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, THE OTHER
CREDIT DOCUMENTS, OR IN ANY WAY CONNECTED WITH, OR RELATED
TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO
WITH RESPECT TO THIS AGREEMENT, OR THE OTHER CREDIT
DOCUMENTS, THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR
ENFORCEMENT HEREOF OR THEREOF, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY
LEGALLY DO SO, BORROWER, BANKS AND AGENT HEREBY AGREE THAT
ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY
AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION 8.12 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO
TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
Section 8.13 Choice of Forum and Service of
Process. To the maximum extent permitted by Law, Borrower,
Agent and Banks agree that all actions or proceedings
arising in connection with the Credit Documents shall be
tried and determined only in the state and federal courts
located in the County of New York, State of New York, or, at
the sole option of Agent, in any other court in which Agent
<PAGE> 56
shall initiate legal or equitable proceedings and which has
subject matter jurisdiction over the matter in controversy.
To the extent it may lawfully do so, Borrower waives any
right it may have to assert the doctrine of forum non
conveniens or to object to venue to the extent any
proceeding is brought in accordance with this section.
Borrower hereby irrevocably and unconditionally designates
and appoints (a) the Secretary of State of the State of New
York, and (b) if Borrower no longer maintains its principal
executive offices in New York State, such other Person
reasonably satisfactory to the Agent and the Majority Banks
as may be selected by Borrower and irrevocably agree in
writing to so serve, as its agent to receive on its behalf
service of all process in any proceedings in any such court,
such service being hereby acknowledged by Borrower to be
effective and binding service in every respect. A copy of
any such process so served shall be mailed by registered
mail to Borrower; provided, however, that unless otherwise
provided by mandatory provisions of applicable law, any
failure to mail such copy shall not affect the validity of
service of process. If any agent appointed by Borrower
refuses to accept service, Borrower hereby agrees that
service upon it by mail shall constitute sufficient notice.
Nothing herein shall affect the right to serve process in
any other manner permitted by law.
Section 8.14 Remedies. The remedies provided to
Agent and Banks in the Credit Documents are cumulative and
are in addition to, and not in lieu of, any remedies
provided by law. To the maximum extent permitted by law,
remedies may be exercised by Agent or any Bank successively
or concurrently, and the failure to exercise any remedy
shall not constitute a waiver thereof, nor shall the single
or partial exercise of any remedy preclude any other or
further exercise of such remedy or any other right or
remedy.
Section 8.15 Right of Set-Off. Upon the
occurrence and during the continuance of any Event of
Default, each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to
set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Bank to or for
the credit or the account of Borrower against an equivalent
amount of the Obligations, irrespective of whether or not
such Bank shall have made any demand under this Agreement
and although such obligations may be unmatured. Each Bank
agrees promptly to notify Borrower and Agent after any such
set-off and application is made by such Bank, provided that
the failure to give such notice shall not affect the
<PAGE> 57
validity of such set-off and application. The rights of
each Bank under this Section are in addition to other rights
and remedies (including, without limitation, other rights of
set-off) which such Bank may have.
Section 8.16 Effectiveness and Effect of
Agreement. This Agreement shall become effective (and the
date this Agreement becomes so effective is the "Effective
Date") if, and only if, on or before June 22, 1994:
(i) Agent shall have received counterparts of
this Agreement duly executed by Borrower and the Banks
listed on the signature pages hereof and Agent and
shall have so notified Borrower and Banks;
(ii) The conditions specified in Section 3.1 shall
have been satisfied; and
(iii) Agent shall have received such other
approvals, opinions or documents as Agent or Majority
Banks may reasonably request.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
COMPANY: COMPUTER ASSOCIATES INTERNATIONAL,
INC., a Delaware corporation
By /s/Ira Zar
---------------------------------------
Its Senior Vice President & Treasurer
--------------------------------------
Address for Notices:
One Computer Associates Plaza
Islandia, New York, 11788-7000
Attn: Treasurer
Telecopier: (516) 342-4866
Telex: 981-393
<PAGE> 58
AGENT: CREDIT SUISSE, as Agent for the
Banks
By /s/Lauri Sivaslian
---------------------------------------
Its MSM
--------------------------------------
By /s/Scott Zoellner
---------------------------------------
Its Associate
--------------------------------------
Address for Notices:
Tower 49
12 East 49th Street
New York, New York 10017
Attn: Michael Mast/Scott Zoellner
Telecopier: (212) 238-5439
Telex:
BANKS: CREDIT SUISSE
By
--------------------------------------
Its
-------------------------------------
By
--------------------------------------
Its
-------------------------------------
Address for Notices:
Tower 49
12 East 49th Street
New York, New York 10017
Attn: Michael Mast/Scott Zoellner
Telecopier: (212) 238-5439
Telex:
<PAGE> 59
CHEMICAL BANK
By /s/Phyllis Sawyer
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
395 North Service Road
Third Floor; Suite 302
Melville, New York ll747-3142
Attention: Annmarie Romeo
Phyllis Sawyer
Sally Ballweg
Telecopier: (516) 755-0152
Telex:
MELLON BANK
By /s/David Smith
--------------------------------------
Its Assistant Vice President
-------------------------------------
Address for Notices:
Three Mellon Bank Center
Room 153-2305
Pittsburgh, Pennsylvania 15258
Attention:
Loan Administration
Telecopier: (412) 234-5049
Telex: 812 367/MELBNK
SHAWMUT BANK, N.A.
By /s/Olaperi Onipede
--------------------------------------
Its Director
-------------------------------------
Address for Notices:
One Federal Street
Boston, Massachusetts 02211
Attention: Olaperi Onipede
Mail Code OF-0323
Telecopier: (617) 423-5214
Telex: 6817133 SHAWMUT-BSN
<PAGE> 60
NATIONAL WESTMINSTER BANK USA
By /s/Jeffrey B. Carstens
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
100 Jericho Quadrangle
Jericho, New York 11753
Attention: Jeffrey B. Carstens
Telecopier: (516) 349-2098
Telex:
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By /s/Yoshihiko Shoitsugu
--------------------------------------
Its Vice President & Manager
-------------------------------------
Address for Notices:
Two World Trade Center
79th Floor
New York, New York l0048
Attention: Walter Duffy (For Credit
Matters)
Kathleen Barsotti (For
Administration Matters)
Telecopier: (212) 912-0516
Telex: 420626/FUJ UI
<PAGE> 61
THE BANK OF NOVA SCOTIA
By /s/Stephen Lockart
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
New York Agency
1 Liberty Plaza
26th Floor
New York, New York l0006
Attention: Alan Reiter
Telecopier: (212) 225-5090
Telex: ITT 421791/WUI 669859
THE BANK OF NEW YORK
By /s/William A. Kerr
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
One Wall Street, 8th Floor
New York, New York 10286
Attention: Gianni W. Sellers
Telecopier: (212) 635-1480
Telex:
COMMERZBANK AG
By/s/Juergen Boysen /s/Michael D. Hintz
--------------------------------------
Its Senior Vice President Vice President
-------------------------------------
Address for Notices:
Two World Financial Center
New York, New York 10281-1050
Attention: Michael Hintz
Telecopier: (212) 266-7235
Telex:
<PAGE> 62
THE BANK OF TOKYO TRUST CO. LTD.
By /s/Neal Hoffson
--------------------------------------
Its Vice President
-------------------------------------
Address for Notices:
1251 Avenue of the Americas
12th Floor
New York, New York 10116
Attention: Neal Hoffson
Telecopier: (212) 782-6445
Telex:
<PAGE>
<TABLE>
Schedule 1
----------
Commitment Schedule
-------------------
A. Agency Office: Tower 49
------------- 12 East 49th Street
New York, New York 10017
B. Banks: (Listed Below)
-----
<CAPTION>
Bank Commitment Lending Office
- ---- ---------- --------------
<S> <C> <C>
Credit Suisse $37,500,000 Tower 49
12 East 49th Street
New York, New York 10017
Chemical Bank $25,000,000 395 North Service Road
Third Floor; Suite 302
Melville, New York 11747-3142
Mellon Bank $31,250,000 Three Mellon Bank Center
Room 153-2305
Pittsburgh, Pennsylvania
15258
National $25,000,000 100 Jericho Quadrangle
Westminster Bank Jericho, New York 11753
USA
Shawmut Bank, $25,000,000 One Federal Street
N.A. Boston, Massachusetts 02211
The Fuji Bank, $25,000,000 Two World Trade Center
Limited, New York 79th Floor
Branch New York, New York 10048
The Bank of Nova $31,250,000 New York Agency
Scotia 1 Liberty Plaza
26th Floor
New York, New York 10006
The Bank of New $12,500,000 1 Wall Street
York 8th Floor
New York, New York 10286
Commerzbank AG $12,500,000 Two World Financial Center
New York, New York 10281-1050
The Bank of Tokyo $25,000,000 1251 Avenue of the Americas
Trust Co. Ltd. 12th Floor
New York, New York 10116
</TABLE>
<PAGE>
<TABLE>
Schedule 2
----------
Existing Loans
--------------
<CAPTION>
Bank Tranche A Loans Tranche B Loans Total Loans
- ---- --------------- --------------- -----------
<S> <S> <C> <C>
Credit Suisse 0 $4,000,000 $4,000,000
Chemical Bank 0 $4,000,000 $4,000,000
Mellon Bank 0 $4,000,000 $4,000,000
National Westminster Bank 0 $2,000,000 $2,000,000
USA
Shawmut Bank, N.A. 0 $1,600,000 $1,600,000
The Fuji Bank Limited, New 0 $1,200,000 $1,200,000
York Branch
The Bank of Nova Scotia 0 $1,200,000 $1,200,000
The Bank of New York 0 $1,200,000 $1,200,000
The Bank of Tokyo Trust Co., 0 $ 800,000 $ 800,000
Ltd.
</TABLE>
<PAGE>
Exhibit A
ASSIGNMENT AND ACCEPTANCE AGREEMENT
[Long Term Revolver]
This ASSIGNMENT AND ACCEPTANCE AGREEMENT, dated as of
______________, 19_____, is made between
____________________________ ("Assignor") and____________________________
("Assignee") as follows:
1. As used herein (the following definitions to be
applicable in both singular and plural forms):
"Applicable Loans" means the Loans outstanding on
the Effective Date under the Applicable Commitment.
"Applicable Commitment" means Assignor's
Commitment under the Credit Agreement.
"Assigned Percentage" means that percentage of
Assignor's rights and obligations under the Applicable Commitment
which is equal to _____% of such Applicable Commitment and the
Applicable Loans as of the Effective Date.
"Credit Agreement" means the Credit Agreement,
dated as of June 21, 1994, as the same may have been amended to
the date hereof, by and between Computer Associates
International, Inc., a Delaware corporation, the banks and other
financial institutions parties thereto (the "Banks"), and Credit
Suisse, as agent for the Banks.
"Effective Date" has the meaning ascribed thereto
in Paragraph 5 hereof.
Other initially capitalized terms used herein and not
otherwise specifically defined have the meaning ascribed thereto
in the Credit Agreement.
2. Assignor hereby sells and assigns to Assignee, and
Assignee hereby purchases and assumes from Assignor, the Assigned
Percentage of Assignor's rights and obligations as a Bank under
the Credit Agreement with respect to the Applicable Commitment
(including, without limitation, the Assigned Percentage of (i)
the Applicable Commitment as in effect as of the Effective Date,
and (ii) each of the Applicable Loans).
<PAGE>
3. The Assignor (i) represents and warrants that it
is the legal and beneficial owner of the interest being assigned
by it hereunder and that such interest is free and clear of any
adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or any other Credit Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other Credit Document or any
other instrument or document furnished pursuant thereto; and
(iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of
Borrower or the performance or observance by Borrower of any of
its obligations under the Credit Documents or any other
instrument or document furnished pursuant thereto.
4. Assignee (i) acknowledges that, other than as
expressly provided in this Agreement, Assignor 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 any other Credit
Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any
other Credit Document or any other instrument or document
furnished pursuant thereto; (ii) acknowledges that Assignor makes
no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or the performance
or observance by Borrower of any of its obligations under any
Credit Document or any other instrument or document furnished
pursuant thereto or with respect to the taxability of payments to
be made under the Credit Agreement or under the other Credit
Documents; (iii) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial
statements referred to in Section 4.1(k) and Section 5.1(h) of
the Credit Agreement and such other Credit Documents and other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this
Agreement; (iv) will, independently and without reliance upon
Agent, Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under the Credit Agreement; (v) 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
<PAGE>
as are delegated to Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (vi) agrees
that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement or any
other Credit Document are required to be performed by it as a
Bank; and (vii) specifies as its Applicable Lending Office(s) and
address for notices the office(s) set forth beneath its name on
the signature pages hereof.
5. The effective date for the assignment and
acceptance hereunder (the "Effective Date") shall be the date on
which the Assignor receives an amount in the same day funds equal
to the Assigned Percentage of the aggregate principal amount of
Applicable Loans owing to Assignor and outstanding on such date
and has notified Agent of such receipt; provided, however, that
the Effective Date hereunder shall not occur unless and until (x)
Borrower shall have consented thereto by executing (at the place
indicated for Borrower's signature hereon) and delivering to
Agent a counterpart of this Agreement, and (y) Agent has received
an executed original of this Agreement, and Agent's processing
and recording fee has been paid, in accordance with the
requirements of Section 8.11(a) of the Credit Agreement.
6. (a) As of the Effective Date, (i) Assignee shall
be a party to the Credit Agreement and, to the extent provided in
this Agreement, have the rights and obligations of a Bank
thereunder and (ii) Assignor shall, to the extent provided in
this Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement; and (b) from and after
the Effective Date, Agent shall make all payments under the
Credit Agreement in respect of all interest assigned hereby
(including, without limitation, all payments of principal,
interest and commitment and other fees relating to the Assigned
Percentage) to Assignee. Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement
for periods prior to the Effective Date directly between
themselves.
7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. THIS AGREEMENT IS ONE OF THE
CREDIT DOCUMENTS (AS DEFINED IN THE CREDIT AGREEMENT) AND IS
SUBJECT TO SECTION 8.13 (CHOICE OF FORUM AND SERVICE OF PROCESS)
<PAGE>
AND SECTION 8.12 (WAIVER OF TRIAL BY JURY) THEREOF. THE
PROVISIONS OF SUCH SECTIONS 8.13 AND 8.12 ARE INCORPORATED HEREIN
IN FULL.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
ASSIGNOR: ________________________________
By______________________________
Its_____________________________
ASSIGNEE: ________________________________
By______________________________
Its_____________________________
Applicable Lending Office(s)
and address for notices:
_________________________________
_________________________________
_________________________________
<PAGE>
BORROWER'S CONSENT
The undersigned hereby consents to the foregoing
Assignment and Acceptance Agreement this _______ day of
________________, 19___.
COMPUTER ASSOCIATES
INTERNATIONAL, INC.
By ____________________________
Its ___________________________
<PAGE>
Exhibit B
---------
COMPLIANCE CERTIFICATE
----------------------
(LONG TERM REVOLVER)
To the Banks and the Agent
Referenced Below
- ----------------------
The undersigned hereby certifies that:
1. This Compliance Certificate is being delivered pursuant
to Section 3.1 of that certain Credit Agreement, dated as of June
21, 1994, as the same may have been amended to the date hereof
(the "Credit Agreement"), by and between Computer Associates
International, Inc. a Delaware corporation ("Company"), the banks
and other financial institutions parties thereto (the "Banks")
and Credit Suisse, as agent for the Banks (in such capacity,
"Agent"). Any and all initially capitalized terms used herein
have the meanings ascribed thereto in the Credit Agreement unless
otherwise specifically defined herein.
2. The undersigned is a Responsible Officer of Company
with the title set forth below his signature hereon.
3. The undersigned has reviewed the terms of the Credit
Agreement and the other Credit Documents with a view toward
determining whether Company has complied with the terms thereof
in all material respects, has made, or has caused to be made
under his supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries as of
June 21, 1994 (the "Determination Date"), and such review has
disclosed that as of such date:
(a) the representations and warranties contained in
Section 4.1 of the Credit Agreement and in the other Credit
Documents are true and correct, as though made on and as of such
date except to the extent such representations and warranties are
specifically limited to a prior date; and
(b) no event has occurred and is continuing which
constitutes an Event or Default or would constitute an Event of
<PAGE>
Default but for the requirement that notice be given or time
elapse or both.
4. Borrower is in compliance with the covenants set forth
in Sections 5.2(b), (c)ii, (e), (h) and (i) of the Credit
Agreement.
I hereby certify the foregoing information to be true and
correct in all material respects and execute this Compliance
Certificate this 21st day of June, 1994.
_______________________________
Title:
a Responsible Officer of Computer
Associates International, Inc.
<PAGE>
NOTICE OF BORROWING
-------------------
(LONG TERM REVOLVER)
Credit Suisse
As the Agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 2.1 of
that certain Credit Agreement, dated as of June 21, 1994, as the
same may have been amended to the date hereof (the "Credit
Agreement"), by and between Computer Associates International,
Inc., a Delaware corporation and the Banks and other financial
institutions parties thereto (the "Banks") and Credit Suisse, as
agent for the Banks. Any and all initially capitalized terms used
herein have the meanings ascribed thereto in the Credit Agreement
unless otherwise specifically defined herein.
The undersigned hereby (one checked as applicable):
[ ] gives Agent irrevocable notice
[ ] confirms its irrevocable telephonic notice to Agent
that it requests a Loan under the Credit Agreement as follows:
1. Date of Loan. The requested date of the proposed Loan is
______________________, 19__.
2. Amount of Loan. The requested aggregate amount of the
proposed Loan is: $____________.
3. Rate Option and Interest Period. The requested rate
option and Interest Period for the proposed Loan is ((a) or (b)
checked as applicable):
[ ] (a) The Eurodollar Rate for an Interest Period of
(one checked as applicable):
[ ] 1 month
[ ] 2 months
<PAGE>
[ ] 3 months
[ ] 6 months
[ ] 9 months
[ ] 12 months
[ ] (b) The Base Rate for an Interest Period of
_________ days.
5. Representations and Warranties. The undersigned hereby
certifies that the following statements are true on the date
hereof, and will be true on the date of the proposed Loan:
(a) the representations and warranties contained in Section
4.1 of the Credit Agreement and in the other Credit Documents are
true and correct before and after giving effect to the proposed
Loan and to the application of the proceeds therefrom, as though
made on and as of such date except to the extent such
representations and warranties are specifically limited to a prior
date;
(b) no event has occurred and is continuing, or would result
from such proposed Loan or from the application of the proceeds
therefrom, which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice
be given or time elapse or both: and
(c) all conditions precedent under Article III of the Credit
Agreement to the making of the Loans are satisfied.
Dated: ________, 19__.
COMPUTER ASSOCIATES
INTERNATIONAL, INC.,
a Delaware corporation
By ___________________________
Its___________________________
<PAGE>
[Opinion of Borrower's Counsel]
[Long Term Revolver]
[_______________], 1994
To the Banks Referenced Below and Agent:
Re: Computer Associates International, Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.1(f) of
the Credit Agreement dated as of June __, 1994 (the "Credit
Agreement"), by and between Computer Associates International,
Inc., a Delaware corporation (the "Company"), on the one hand, and
the banks and other financial institutions party thereto reflected
on the signature pages thereof (the "Banks") and Credit Suisse, as
agent for the Banks (in such capacity "Agent"), on the other hand.
Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
We have acted as counsel for the Company in connection with
the Credit Agreement and certain of the transactions contemplated
thereby. In that connection we have examined an executed copy of
the Credit Agreement, together with all Exhibits thereto.
We have also familiarized ourselves with the Restated
Certificate of Incorporation and by-laws of the Company, as amended
to date, and have examined the originals, or copies certified or
otherwise identified, of corporate records of the Company,
including minute books of the Company as furnished to us by the
Company, certificates of public officials and of representatives of
the Company, statutes and other instruments and documents, as a
basis for the opinions hereinafter expressed. In giving such
opinions we have relied upon certificates of officers of the
Company with respect to the accuracy of the material factual
matters contained in such certificates.
We have also assumed (i) that all signatures on all documents
examined by us are genuine, (ii) that all documents submitted to us
as copies are true and correct copies of the originals, and (iv)
that all information submitted to us is accurate and complete.
<PAGE>
On the basis of the foregoing, subject to the assumptions,
limitations, qualifications and exceptions set forth herein, we are
of the opinion that:
1. The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the State
of Delaware, and has the requisite corporate power and
authority to own and operate its properties and to carry
on its business as presently conducted.
2. The Company has the requisite corporate power and
authority to enter into the Credit Agreement, to bind
itself thereby, and to perform its obligations
thereunder.
3. The Credit Agreement has been duly authorized by all
necessary corporate action on the part of the Company and
has been duly executed and delivered by the Company. The
Credit Agreement, constitutes, and the other Credit
Documents to which the Company becomes a party when
executed will constitute, the valid and binding
obligations of the Company enforceable against the
Company in accordance with their respective terms.
4. The choice of New York law to govern the construction and
interpretation of the Credit Agreement is a valid and
effective choice of law under the laws of the States of
Delaware and New York, and adherence to existing judicial
precedents under law would require a court sitting in
Delaware and New York to abide by such choice of law.
5. The execution and delivery by the Company of the Credit
Agreement and the other Credit Documents to which it is
a party, the performance by Company of its obligations
thereunder and the consummation of the transactions
contemplated thereby will not (a) conflict with the
Restated Certificate of Incorporation or by-laws of the
Company, as amended, or (b) conflict with or result in a
breach of, or constitute a default under (with or without
the giving of notice, the passage of time or both), or
result in the creation or imposition of any Lien (other
than exceptions permitted by Section 5.2(a) of the Credit
Agreement) upon any of the property or assets of the
Company or of any of its Subsidiaries under (i) any
indenture, mortgage, deed of trust or other instrument or
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agreement known to us by which the Company or any of its
Subsidiaries is bound, and to which any of the property
or assets of the Company or any of its Subsidiaries are
subject or (ii) any existing applicable Law affecting the
Company or any of its Subsidiaries or any of the
properties or assets of the Company or any of its
Subsidiaries, except for, in the case of clause (ii), any
conflict, breach or default that (A) is not material and
(B) does not impair the ability of the Company to perform
its obligations under the Credit Agreement or any other
Credit Document to which it is a party or of Agent or any
Bank to enforce or collect any of the Obligations.
6. No order, license, consent, authorization or approval of,
or exemption by, or notice to or registration with, any
federal, state, municipal or other governmental
department, commission, board, bureau, agency or other
governmental, administrative or judicial authority or
regulatory body, and no filing, recording, publication or
registration of any kind, is required in connection with
the execution, delivery and performance by the Company
(or any of its Subsidiaries) of the Credit Agreement, or
the other Credit Documents to which it is a party, or for
the legality, validity, binding effect or enforceability
thereof.
7. The making of Loans and the application of the proceeds
thereof by the Company as provided in the Credit
Agreement do not violate Regulation G, T, U, or X of the
Board of Governors of the Federal Reserve System (the
"Board"), or any other regulation of the Board.
8. The Company is not an "investment company" or a company
"controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as
amended. Neither the Company nor any of its Subsidiaries
is a "holding company" or a "subsidiary" of a "holding
company" as defined in the Public Utility Holding Act of
1935, as amended.
9. To our knowledge, except as disclosed in the Notes to the
Company's financial statements referred to in Section
4.1(k) of the Credit Agreement, there is no action, suit,
or proceeding pending or overtly threatened against the
Company or any of its Subsidiaries of the nature
described in Section 4.1(h) of the Credit Agreement or in
which an injunction or order has been entered preventing
the making of the Loans.
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The opinions set forth above in paragraph 3 are subject, with
your concurrence, to the following qualifications, assumptions,
limitations and exceptions: (i) the performance by the Company and
the enforceability of the Credit Agreement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or conveyance or other laws of general
application affecting creditor's rights and to court decisions with
respect thereto, by implied or express covenants of good faith and
fair dealing and by general principles of equity (regardless of
whether such validity, binding effect or enforceability is
considered in a proceeding in equity or at law); (ii) we express no
opinion as to the availability of equitable remedies for any breach
of the provisions of the Credit Agreement other than those relating
to the payment of money; (iii) we express no opinion as to the
validity, binding effect, or enforceability of any provision of the
Credit Agreement relating to indemnification or contribution with
respect to claims arising under any federal or state securities
law; and (iv) provisions to the effect that failure to exercise or
delay in exercising rights or remedies will not operate as a waiver
of the right or remedy are unenforceable under certain
circumstances.
To the extent that the opinion herein may be dependent upon
such matters, we have assumed that each of Agent and the Banks is
duly organized, validly existing, and in good standing under the
laws of the jurisdiction in which it is organized, that the Credit
Agreement has been or will be duly authorized, executed, and
delivered by each of Agent and the Banks, and constitutes the valid
and binding obligation of each of Agent and the Banks, and that
each of Agent and the Banks has the requisite power and authority
to perform its obligations under the Credit Agreement.
Except as expressly addressed in this opinion, we are not
expressing any opinion as the effect of Agent's or any Bank's
compliance or noncompliance with any state, federal or foreign laws
or regulations applicable to the transactions because of the nature
of the business conducted by Agent or such Bank.
We are members of the Bar of the State of New York. The
foregoing opinion is based on and is limited to the law of the
State of New York, and the relevant law of the United States of
America and of the State of Delaware, and we render no opinion with
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respect to the laws of any other jurisdiction.
The opinions expressed herein are solely for your benefit in
connection with the above transactions and may not be relied on in any manner
or for any purpose by any other person. Copies may not be furnished to
any other person without the prior written consent of this firm,
except that you may furnish copies thereof: (a) to your
independent auditors and attorneys; (b) to any state or federal
authority having regulatory jurisdiction over you; (c) pursuant to
the order or legal process of any court or governmental agency; (d)
in connection with any legal action to which you are a party
arising out of the above transactions; and (e) any Bank or any
proposed participant in or assignee of any Bank's interest in any
Loan or Commitment, any proposed Additional Bank or any successor
to Agent.
Very truly yours,
