UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
x Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the quarterly period ended June 30, 1995
or
Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the transition period ended from _____ to _____
Commission File Number 0-10180
Computer Associates International, Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-2857434
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Computer Associates Plaza
Islandia, New York 11788-7000
(Address of principal executive offices) (Zip Code)
(516) 342-5224
(Registrant's telephone number, including area code)
Not applicable
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes
of Common Stock, as of the latest practicable date:
Title of Class Shares Outstanding
Common Stock as of July 31, 1995
par value $.10 per share 160,913,238
<PAGE>
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
INDEX
PART I. Financial Information:
Page No.
Item 1. Consolidated Condensed Balance Sheets -
June 30, 1995 and March 31, 1995 . . . . . . . . . . . 1
Consolidated Statements of Income -
Three Months Ended June 30, 1995 and 1994 . . . . . . . 2
Consolidated Condensed Statements of Cash Flows -
Three Months Ended June 30, 1995 and 1994 . . . . . . . 3
Notes to Consolidated Condensed Financial Statements . . 4
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . . . 7
PART II. Other Information:
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . 10
<PAGE> 1
<TABLE>
Item 1:
Part I. FINANCIAL INFORMATION
OMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(In thousands)
<CAPTION>
June 30, March 31,
1995 1995
------------- ---------------
(Unaudited)
<S> <C> <C>
ASSETS:
Cash and cash equivalents . . . . . $ 65,149 $ 116,579
Marketable securities . . . . . . . 181,794 184,643
Trade and installment accounts
receivable - net. . . . . . . . . . 664,861 787,684
Inventories and other current
assets . . . . . . . . . . . . . . 60,049 58,660
TOTAL CURRENT ASSETS 971,853 1,147,566
Installment accounts receivable,
due after one year - net . . . . . 1,150,708 1,045,798
Property and equipment - net . . . . 334,462 343,953
Purchased software products - net. . 328,386 342,999
Excess of cost over net assets
acquired - net . . . . . . . . . . 295,707 300,268
Investments and other noncurrent
assets . . . . . . . . . . . . . . 87,219 88,844
TOTAL ASSETS $3,168,335 $3,269,428
LIABILITIES AND STOCKHOLDERS' EQUITY:
Loans payable - banks . . . . . . . $ 105,000 $ 240,000
Other current liabilities . . . . . 580,807 607,893
Long-term debt and other . . . . . 48,140 50,489
Deferred income taxes . . . . . . . 466,906 460,838
Deferred maintenance revenue . . . 302,366 332,083
Stockholders' equity . . . . . . . . 1,665,116 1,578,125
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $3,168,335 $3,269,428
<FN>
See Notes to Consolidated Condensed Financial Statements.
</TABLE>
<PAGE> 2
<TABLE>
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(In thousands, except per share amounts)
<CAPTION>
For the Three Months
Ended June 30,
--------------------
1995 1994
---- ----
<S> <C> <C>
Product revenue and other related income . . . $ 396,802 $ 306,488
Maintenance fees . . . . . . . . . . . . . . . 180,650 170,143
TOTAL REVENUE 577,452 476,631
Costs and expenses:
Selling, marketing and administrative . . . 277,279 251,571
Product development and enhancements . . . . 60,940 50,238
Commissions and royalties . . . . . . . . . 26,081 20,346
Depreciation and amortization . . . . . . . 71,222 43,933
Interest expense (income) - net . . . . . . 1,376 ( 726)
Purchased research and development . . . . . 249,300
TOTAL COSTS AND EXPENSES 436,898 614,662
Income (loss) before income taxes . . . . . . 140,554 (138,031)
Provision for income tax expense (benefit) . . 52,005 ( 52,452)
NET INCOME $ 88,549 $( 85,579)
Net income (loss) per share of Common Stock . $ .53 $( .53)
Weighted average number of shares used in
computation . . . . . . . . . . . . . . . . . 168,446 161,894
<FN>
See Notes to Consolidated Condensed Financial Statements.
</TABLE>
<PAGE> 3
<TABLE>
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
<CAPTION>
For the Three Months
Ended June 30,
--------------------
1995 1994
<S> <C> <C>
OPERATING ACTIVITIES:
Net income (loss). . . . . . . . . . . . . . . . . $ 88,549 $( 85,579)
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization . . . . . . . . . 71,222 43,933
Provision for deferred income taxes . . . . . . 8,186 ( 83,468)
Charge for purchased research and development. . 249,300
Increase in noncurrent installment accounts
receivable - net . . . . . . . . . . . . . . . (101,985) ( 33,967)
Decrease in deferred maintenance revenue . . . . ( 29,493) ( 35,019)
Foreign currency transaction loss
before taxes . . . . . . . . . . . . . . . . . 1,974
Changes in other operating assets and
liabilities, excludes effects of acquisitions . 63,830 34,158
NET CASH PROVIDED BY OPERATING ACTIVITIES 100,309 91,332
INVESTING ACTIVITIES:
Acquisitions, primarily purchased software,
marketing rights and intangibles . . . . . . . . ( 11,039) (293,600)
Purchase of property and equipment . . . . . . . . ( 1,640) ( 28,723)
Decrease (increase) in current marketable
securities . . . . . . . . . . . . . . . . . . . 5,034 ( 10,519)
Capitalized development costs . . . . . . . . . . ( 3,322) ( 3,229)
NET CASH USED IN INVESTING ACTIVITIES ( 10,967) (336,071)
FINANCING ACTIVITIES:
Decrease in long-term debt - net . . . . . . . . . ( 1,482) ( 42,845)
(Decrease) increase in loans payable-banks net . . (135,000) 330,000
Exercise of common stock options/other . . . . . . 10,133 5,361
Purchases of treasury stock . . . . . . . . . . . ( 13,205) ( 64,356)
NET CASH (USED IN) PROVIDED BY FINANCING ACTIVITIES (139,554) 228,160
DECREASE IN CASH AND CASH EQUIVALENTS
BEFORE EFFECT OF EXCHANGE RATE CHANGES ON CASH ( 50,212) ( 16,579)
Effect of exchange rate changes on cash . . . . . . ( 1,218) 907
DECREASE IN CASH AND CASH EQUIVALENTS ( 51,430) ( 15,672)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 116,579 133,127
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 65,149 $ 117,455
</TABLE>
<PAGE> 4
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
JUNE 30, 1995
NOTE A -- BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements
have been prepared in accordance with generally accepted
accounting principles for interim financial information and with
the instructions to Rule 10-01 of Regulation S-X. Accordingly,
they do not include all of the information and footnotes
required by generally accepted accounting principles for
complete financial statements. In the opinion of management,
all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included.
Operating results for the three months ended June 30, 1995 are
not necessarily indicative of the results that may be expected
for the year ending March 31, 1996. For further information,
refer to the consolidated financial statements and footnotes
thereto included in Computer Associates International, Inc.'s
(the "Registrant" or the "Company") Annual Report on Form 10-K
for the fiscal year ended March 31, 1995.
Dividends: In May 1995, the Company's Board of Directors
declared its regular, semi-annual cash dividend of $.10 per
share. The dividend was paid on July 5, 1995 to stockholders
of record on June 20, 1995.
Net Income per Share: Net income per share of Common Stock is
computed by dividing net income by the weighted average number
of common shares and any dilutive common share equivalents
outstanding. Common share equivalents for the quarter ended
June 30, 1994 were excluded because of their anti-dilutive
effect. Fully diluted net income per share is the same or not
materially different from net income per share.
Statements of Cash Flows: For the three months ended June 30,
1995 and 1994, interest paid was $4.3 million and $2.2 million,
respectively, and income taxes paid were $35 million and $62
million, respectively.
<PAGE> 5
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
JUNE 30, 1995
NOTE B -- ACQUISITIONS
On June 22, 1994, the Company acquired 98% of the issued and
outstanding Common Stock of The ASK Group, Inc. ("ASK"), and on
September 20, 1994, merged ASK into one of its wholly owned
subsidiaries. The aggregate cost of acquiring the Common Stock
of ASK was approximately $314 million. The purchase price was
provided from existing cash balances and from a revolving credit
agreement with a group of banks. ASK was primarily in the
business of developing, marketing and selling computer-based
relational database management systems, data access and
connectivity products, manufacturing and financial software
application tools and provided related consulting and support
services. The acquisition was accounted for as a purchase. The
results of ASK's operations have been combined with those of the
Company since the date of acquisition.
In conjunction with the purchase of ASK, the Company recorded
an after-tax charge against earnings of $154 million relating
to the write-off of purchased research and development
technology that had not reached the working model stage and has
no alternative future use. Had this charge not been taken
during the quarter ended June 30, 1994, net income for the
quarter ended June 30, 1994 would have been $69 million, or $.41
per share.
The following table reflects pro forma combined results of
operations (unaudited) of the Company and ASK on the basis that
the acquisitions had taken place and the related one-time
charge, noted above, was recorded at the beginning of the fiscal
year 1995:
<TABLE>
(In thousands, except per share amounts)
<CAPTION>
For the Three Months
Ended June 30,
1995 1994
<S> <C> <C>
Revenue . . . . . . . . . $ 577,452 $ 510,344
Net income (loss) . . . . 88,549 ( 125,734)
Net income (loss) per
Common Share . . . . . . $ .53 $( .78)
Shares used in
computation . . . . . . 168,446 161,894
</TABLE>
<PAGE> 6
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
JUNE 30, 1995
NOTE B -- ACQUISITIONS (continued)
In management's opinion, the pro forma combined results of
operations are not indicative of the actual results that would
have occurred had the acquisition been consummated at the
beginning of fiscal year 1995 or of future operations of the
combined companies under the ownership and operation of the
Company.
NOTE C - SUBSEQUENT EVENT
On August 1, 1995, the Company, through its wholly owned
subsidiary, VR126, Inc., completed its tender offer for all of
the outstanding shares of Legent Corporation ("Legent") common
stock at a price of $47.95 per share in cash. Approximately 98%
of the issued and outstanding shares, or 37.9 million shares,
were validly tendered. The purchase price of these shares was
funded from the Company's general corporate funds and drawings
under its new $2 billion Credit Agreement dated as of July 24,
1995.
Legent and VR126, Inc. will be merged as soon as practicable
after the satisfaction of the conditions set forth in, and
subject to the terms of, the Agreement and Plan of Merger among
Legent, VR126, Inc. and the Company, but in no event earlier
than November 6, 1995. Once the pending merger becomes
effective, Legent will become a wholly owned subsidiary of the
Company.
The purchase price and associated charges will be allocated
among the identifiable tangible and intangible assets of Legent
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 its second quarter ending
September 30, 1995. The after-tax charge against earnings is
initially projected to be approximately $800 million, or
approximately $5.00 per share.
On August 9, 1995, the Company declared a three-for-two split, in
the form of a stock dividend, of its outstanding common stock. The
record date will be Monday, August 21, 1995 and the payment date will
be Tuesday, September 5, 1995. There are currently approximately
160,000,000 shares of CA common stock outstanding, and this number
will increase to approximately 240,000,000 shares by reason of the
stock split. The Board also indicated that it anticipates that the
annual dividend will be $.14 per annum on a new share basis. None of
the share or per share amounts presented herein reflect the split.
<PAGE> 7
Item 2:
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Revenue:
Total revenue for the quarter ended June 30, 1995 increased by
21%, or $101 million, over the prior year's comparable quarter.
The growth was attributable to greater revenue derived from
licensing fees on the midrange platform and the continued
demand for enterprise licensing alternatives and less
restrictive pricing options. The increase in midrange platform
revenue was led by the Company's pioneer UNIX-based systems
management product, CA-Unicenter. Maintenance revenues
increased $10 million, or 6%, primarily due to the acquisition
of ASK. Price changes did not have a material impact in either
quarter.
Costs and Expenses:
Selling, marketing and administrative expenses as a percentage
of total revenue for the June 1995 quarter decreased to 48%
from 53% for the June 1994 quarter. The percentage reduction
reflects a higher revenue achievement without a proportionate
increase in total fixed and variable administrative costs. Net
research and development expenditures increased $10 million, or
21%, over the June 1994 quarter. The increase was the result
of continued support and enhancements of the ASK products, as
well as the focus on further enhancing client/server product
offerings. Commissions and royalties as a percentage of
revenue for the June 1995 quarter increased slightly over the
prior year's comparable period. The nominal percentage
increase is due to the ASK royalties not present in the June
1994 quarter. Depreciation and amortization expense increased
$27 million in the June 1995 quarter over the June 1994
quarter, primarily due to the additional purchased software
product amortization associated with the ASK acquisition. In
the June 1995 quarter, net interest expense increased by $2
million over the June 1994 quarter, as a result of higher debt
levels associated with borrowings used to finance the ASK
acquisition.
<PAGE> 8
Item 2: (Continued)
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Operating Margins:
Net income for the June 1995 quarter was $89 million, or $.53
per share, compared to a net loss of $86 million and a loss of
$.53 per share for the June 1994 quarter. The net loss for the
June 1994 quarter reflects the $154 million after-tax charge
for the write-off of ASK purchased research and development
technology, that had not reached the working model stage and
had no alternative future use. Excluding this charge, the pre-
tax income in the June 1994 quarter would have been $111
million compared to that of the June 1995 quarter ($140
million), a 26% increase. The Company's consolidated effective
tax rate for the June 1995 quarter decreased to 37% from 38%
for the June 1994 quarter, primarily as a result of anticipated
increases in foreign tax credits.
Operations:
The Company has traditionally reported lower profit margins in
the first two quarters of each fiscal year than those
experienced in the third and fourth quarters. As part of the
annual budget process, management establishes higher
discretionary expense levels in relation to projected revenue
for the first half of the year. Historically, the Company's
combined third and fourth quarter revenues have been greater
than the first half of the year, as these two quarters coincide
with the clients' calendar year budget periods and the
culmination of the Company's annual sales plan. These
historically higher second half revenues have resulted in
significantly higher profit margins since total expenses have
not increased in proportion to revenue. However, past
financial performance may not be indicative of future
performance, particularly in view of the uncertainties
associated with integration of the Legent acquisition and the
personnel/infrastructure investments necessary to capitalize on
the ongoing migration to client server technology.
The Company's near term operating results may be affected by a
number of other factors, including, but not limited to:
uncertainties relative to global economic conditions; market
acceptance of competing technologies; the availability and cost
of new solutions; the Company's ability to successfully
maintain or increase market share in its core business while
expanding its product base into other markets; the strength of
its distribution channels; the Company's ability to manage
fixed and variable expense growth relative to revenue growth;
and the Company's ability to effectively integrate acquired
products and operations.
<PAGE> 9
Item 2: (Continued)
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash and cash equivalents at June 30, 1995
decreased by approximately $50 million from the March 31, 1995
fiscal year end balance. This decrease was primarily
attributable to expenditures of $135 million for repayment of
bank debt and $13 million for the purchase of Treasury Stock,
partially offset by approximately $100 million of cash
generated from operations. At June 30, 1995, $105 million
remained drawn under the Company's $500 million revolving
credit agreement.
On May 25, 1995, the Company entered into a definitive
agreement providing for the acquisition of Legent for
approximately $1.8 billion. In August 1995, the Company
financed the acquisition with cash and marketable securities,
as well as a portion of the new $2 billion credit facility
which replaced the existing $500 million facility. The $2
billion facility is a five-year reducing revolving credit
agreement initially having a borrowing cost at LIBOR plus 5/8%.
The agreement calls for the maintenance of certain financial
conditions and ratios.
At June 30, 1995, the total purchased under the Company's open
market Common Stock repurchase program was 16.3 million shares.
Almost 9 million shares remain available for repurchase under
this program. Previously, the Company had completed a 15
million share repurchase program, for a total of 31.3 million
shares purchased to date.
The Company's capital resource requirements as of the end of
June 30, 1995 consisted of lease obligations for office space,
computer equipment, mortgage or loan obligations and amounts
due as a result of product and company acquisitions including
the obligation to purchase Legent as outlined above. It is
expected that existing cash, cash equivalents, short-term
marketable securities, the availability of borrowings under
committed and uncommitted credit lines, as well as cash
provided from operations, will be sufficient to meet
anticipated cash requirements.
<PAGE> 10
PART II. OTHER INFORMATION
Item 6: Exhibits and Reports on Form 8-K
(a) Exhibits.
Credit Agreement dated July 24, 1995.
(b) Reports on Form 8-K.
None.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
COMPUTER ASSOCIATES INTERNATIONAL, INC.
Dated: August 9, 1995 By: /s/Sanjay Kumar
---------------------
Sanjay Kumar, President
and Chief Operating Officer
Dated: August 9, 1995 By: /s/Peter Schwartz
----------------------
Peter Schwartz
Sr. Vice President - Finance
(Chief Financial and
Accounting Officer)
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-31-1996
<PERIOD-START> APR-01-1995
<PERIOD-END> JUN-30-1995
<EXCHANGE-RATE> 1
<CASH> 65149
<SECURITIES> 181794
<RECEIVABLES> 664861
<ALLOWANCES> 0
<INVENTORY> 60049
<CURRENT-ASSETS> 971853
<PP&E> 334462
<DEPRECIATION> 0
<TOTAL-ASSETS> 3168335
<CURRENT-LIABILITIES> 685807
<BONDS> 48140
0
0
<COMMON> 0
<OTHER-SE> 1665116
<TOTAL-LIABILITY-AND-EQUITY> 3168335
<SALES> 396802
<TOTAL-REVENUES> 577452
<CGS> 0
<TOTAL-COSTS> 436898
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1376
<INCOME-PRETAX> 140554
<INCOME-TAX> 52005
<INCOME-CONTINUING> 88549
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 88549
<EPS-PRIMARY> .53
<EPS-DILUTED> .53
</TABLE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Interpretation. . . . . . . . . 1
Section 1.1 Defined Terms. . . . . . . . . . . . . . . . . . 1
Section 1.2 Computation of Time Periods. . . . . . . . . . . 10
Section 1.3 Accounting Terms . . . . . . . . . . . . . . . . 10
Section 1.4 No Presumption Against Any Party . . . . . . . . 10
Section 1.5 Use of Certain Terms . . . . . . . . . . . . . . 11
Section 1.6 Headings and References. . . . . . . . . . . . . 11
Section 1.7 Independence of Provisions . . . . . . . . . . . 11
ARTICLE II
Amounts and Terms of the Loans. . . . . . . . . 11
Section 2.1 The Loans. . . . . . . . . . . . . . . . . . . . 11
Section 2.2 Repayment. . . . . . . . . . . . . . . . . . . . 13
Section 2.3 Interest on Loans. . . . . . . . . . . . . . . . 14
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. . . . . . . . . . . . . . . . . . . . . . 20
Section 2.8 Additional Action in Certain Events. . . . . . . 23
Section 2.9 Reduction or Termination of Commitments. . . . . 24
ARTICLE III
Conditions of Commitments. . . . . . . . . . 25
Section 3.1 Conditions Precedent to Initial Loans. . . . . . 25
Section 3.2 Conditions Precedent to Each Loan. . . . . . . . 28
ARTICLE IV
Representations and Warranties. . . . . . . . . 29
Section 4.1 Organization of Credit Parties . . . . . . . . . 29
Section 4.2 Authorization of Credit Documents. . . . . . . . 29
Section 4.3 Government Approvals . . . . . . . . . . . . . . 29
Section 4.4 No Conflicts . . . . . . . . . . . . . . . . . . 29
Section 4.5 Enforceability . . . . . . . . . . . . . . . . . 30
Section 4.6 Title to Property. . . . . . . . . . . . . . . . 30
Section 4.7 Compliance with Law. . . . . . . . . . . . . . . 30
<PAGE>
Section 4.8 No Litigation. . . . . . . . . . . . . . . . . . 30
Section 4.9 Subsidiaries . . . . . . . . . . . . . . . . . . 30
Section 4.10 Financial Information. . . . . . . . . . . . . . 30
Section 4.11 Margin Regulations . . . . . . . . . . . . . . . 31
Section 4.12 ERISA. . . . . . . . . . . . . . . . . . . . . . 31
Section 4.13 Investment Company Act . . . . . . . . . . . . . 31
Section 4.14 Taxes. . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE V
Covenants of Credit Parties . . . . . . . . . 31
Section 5.1 Affirmative Covenants. . . . . . . . . . . . . . 31
Section 5.2 Negative Covenants . . . . . . . . . . . . . . . 35
ARTICLE VI
Events of Default. . . . . . . . . . . . 39
Section 6.1 Events of Default. . . . . . . . . . . . . . . . 39
ARTICLE VII
Relationship of Agent and Banks . . . . . . . . 41
Section 7.1 Authorization and Action . . . . . . . . . . . . 41
Section 7.2 Agent's Reliance, Etc. . . . . . . . . . . . . . 41
Section 7.3 Agent and Affiliates . . . . . . . . . . . . . . 42
Section 7.4 Bank Credit Decision . . . . . . . . . . . . . . 42
Section 7.5 Indemnification. . . . . . . . . . . . . . . . . 42
Section 7.6 Successor Agent. . . . . . . . . . . . . . . . . 42
ARTICLE VIII
Miscellaneous. . . . . . . . . . . . . 43
Section 8.1 Notices. . . . . . . . . . . . . . . . . . . . . 43
Section 8.2 Successors and Assigns . . . . . . . . . . . . . 43
Section 8.3 Amendments and Related Matters . . . . . . . . . 44
Section 8.4 Costs and Expenses; Indemnification. . . . . . . 44
Section 8.5 Oral Communications. . . . . . . . . . . . . . . 45
Section 8.6 Entire Agreement . . . . . . . . . . . . . . . . 45
Section 8.7 Governing Law. . . . . . . . . . . . . . . . . . 45
Section 8.8 Severability . . . . . . . . . . . . . . . . . . 45
Section 8.9 Counterparts . . . . . . . . . . . . . . . . . . 45
<PAGE>
Section 8.10 Confidentiality. . . . . . . . . . . . . . . . . 46
Section 8.11 Assignments and Participations . . . . . . . . . 46
Section 8.12 Waiver of Trial by Jury. . . . . . . . . . . . . 48
Section 8.13 Choice of Forum and Service of Process . . . . . 49
Section 8.14 Remedies . . . . . . . . . . . . . . . . . . . . 49
Section 8.15 Right of Set-Off . . . . . . . . . . . . . . . . 50
Section 8.16 Effectiveness and Effect of Agreement. . . . . . 50
SCHEDULES
Schedule 1 Commitment Schedule and Addresses
EXHIBITS
Exhibit A Form of Assignment and Acceptance Agreement
Exhibit B Form of Compliance Certificate
Exhibit C-1 Form of Notice of Borrowing (Drawings)
Exhibit C-2 Form of Notice of Borrowing (Continuations)
Exhibit C-3 Form of Notice of Borrowing (Conversions)
Exhibit D Form of Opinion of Borrower's Counsel
Exhibit E Form of Opinion of Agent's Counsel
Exhibit F Form of Promissory Note
<PAGE> 1
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of July 24, 1995, is
made by and among:
(a) COMPUTER ASSOCIATES INTERNATIONAL, INC., a Delaware
corporation ("Borrower");
(b) the Banks (as hereinafter defined);
(c) each of the Co-Agents listed on the signature pages hereto
(in such capacity, the "Co-Agents"); and
(d) CREDIT SUISSE, as administrative agent for the Banks.
The parties hereto agree as follows:
ARTICLE I
Definitions and Interpretation
Section 1.1 Defined Terms. As used in this Agreement.
"Acquisition" means the acquisition of the issued and
outstanding capital stock of Legent pursuant to the Acquisition
Documents, and in accordance with the terms contained in the
Acquisition Documents.
"AcquisitionCo" means VR126, Inc., a Delaware
corporation and a wholly-owned Subsidiary of the Borrower.
"Acquisition Documents" means the Tender Offer
Documents, the Additional Tender Offer Documents and the Merger
Agreement.
"Additional Tender Offer Documents" means all
amendments and exhibits to, and documents related to, the Tender
Offer Documents filed with the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended, or
distributed to the stockholders of Legent by Borrower and its
Subsidiaries or Legent and its Subsidiaries in connection with
the Tender Offer and the Merger.
"Adjustment Date" has the meaning ascribed thereto in
Section 2.4(b).
"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 (which office initially shall be located
<PAGE> 2
in the City of New York), 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 or any successor thereto in such
capacity.
"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 Facility Fee Rate" means, at any date (and
subject to adjustment from time to time in accordance with the
provisions of Section 2.4(b)), the rate per annum set forth below
opposite the Test Ratio determined by reference to the Compliance
Certificate required to be delivered to the Agent pursuant to
Section 5.1(h)(i) or (ii), as the case may be, most recently
prior to such date:
Test Ratio Rate
---------- ----
Greater than or equal to 2.75 to 1.0 .250%
Less than 2.75 to 1.0, but greater than
or equal to 1.75 to 1.0 .200%
Less than 1.75 to 1.0, but greater than
or equal to 1.0 to 1.0 .150%
Less than 1.0 to 1.0, but greater than
or equal to 0.25 to 1.0 .125%
Less than 0.25 to 1.0 .125%
; provided, however, that:
(a) during the period from the Effective Date through
the date upon which Borrower delivers its Compliance
Certificate for the fiscal period ending September 30, 1995
in accordance with the provisions of Section 5.1(h)(i), the
Applicable Facility Fee Rate shall be deemed to be .200%;
and
(b) in the event that the Compliance Certificate
required pursuant to Section 5.1(h)(i) or (ii), as the case
may be, is not delivered to Agent prior to or on the
applicable delivery date set forth in such Section, then the
Applicable Facility Fee Rate for each day during the period
after the date when due through and including the date when
actually delivered shall be deemed to be .250%.
"Applicable Lending Office" means, with respect to each
Bank, the office of such Bank designated on the Commitment
<PAGE> 3
Schedule, or in the Assignment and Acceptance 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 (a) the banks and other financial
institutions signatory hereto in their capacity as Banks and (b)
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 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 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 necessarily 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 at a rate based upon the Base Rate.
"Closing Date" means the date on which the first Loan
under any Commitment is made.
"Co-Agent" has the meaning assigned to that term in the
preamble hereto.
"Commitment" means, as to any Bank, the amount set
forth opposite such Bank's name as its Commitment on the
Commitment Schedule, as the same may be reduced from time to time
in accordance with the terms hereof and otherwise 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.
<PAGE> 4
"Compliance Certificate" means a certificate of, and
duly executed by, a Responsible Officer of Borrower in the form
of Exhibit B hereto.
"Confidential Information Memorandum" means the
Confidential Information Memorandum, dated June 1995, distributed
with respect to Borrower in connection with the syndication of
the Commitments.
"Consolidated Net Income" means, for any period, the
net income of the Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with generally
accepted accounting principles.
"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, directly or indirectly, 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, any Notes,
each Compliance Certificate and each Borrowing Certificate.
"Debt" means, without duplication, (i) indebtedness for
borrowed money, (ii) obligations to pay the deferred purchase
price of property or services (other than trade payables arising
in the ordinary course of business which are not overdue), (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 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 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; provided, however, that, the term "Debt"
shall not include, to the extent otherwise includable therein,
deferred taxes and deferred maintenance revenue.
"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.
<PAGE> 5
"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 upward 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 the Reference Banks in the London interbank market at
11:00 a.m. (London, England time) two Banking Days before the
first day of 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.
"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, at any date (and
subject to adjustment from time to time in accordance with the
provisions of Section 2.4(b)), the rate per annum set forth below
opposite the Test Ratio determined by reference to the Compliance
Certificate required to be delivered to the Agent pursuant to
Section 5.1(h)(i) or (ii), as the case may be, most recently
prior to such date:
Test Ratio Rate
---------- ----
Greater than or equal to 2.75 to 1.0 .500%
Less than 2.75 to 1.0, but greater than
or equal to 1.75 to 1.0 .425%
Less than 1.75 to 1.0, but greater than
or equal to 1.0 to 1.0 .325%
Less than 1.0 to 1.0, but greater than
or equal to 0.25 to 1.0 .225%
Less than 0.25 to 1.0 .175%
<PAGE> 6
; provided, however, that:
(a) during the period from the Closing Date through
the date upon which Borrower delivers its Compliance
Certificate for the fiscal period ending September 30, 1995
in accordance with the provisions of Section 5.1(h)(i), the
Eurodollar Rate Margin shall be deemed to be .425%; and
(b) in the event that the Compliance Certificate
required pursuant to Section 5.1(h)(i) or (ii), as the case
may be, is not delivered to Agent prior to or on the
applicable delivery date set forth in such Section, then the
Eurodollar Rate Margin for each day during the period after
the date when due through and including the date when
actually delivered shall be deemed to be .500%.
"Eurodollar Rate Reserve Percentage" for each day for
each Eurodollar Rate Loan means the reserve percentage applicable
on such day under regulations issued from time to time by the
Board of Governors of the Federal Reserve System or any successor
for determining the maximum reserve 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 the Interest Period then in effect with respect to such
Eurodollar Rate Loan.
"Eurodollar Tranche": means all Eurodollar Loans which
have current Interest Periods beginning on the same date and
ending on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default" has the meaning specified in Section 6.1.
"Federal Funds Rate" means, for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding 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 the day of such transactions received by the Agent
from three federal funds brokers of recognized standing selected
by it.
"Fees" has the meaning ascribed thereto in Section 2.5.
"Interest Period": with respect to any Eurodollar Rate
Loan, means:
(a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Rate Loan and ending one, two, three, six, nine
or twelve months thereafter, as selected by the Borrower in
its Notice of Borrowing or notice of conversion, as the case
may be, given with respect thereto; and
(b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
<PAGE> 7
Eurodollar Loan and ending one, two, three, six, nine or
twelve months thereafter, as selected by the Borrower in its
Notice of Borrowing delivered to the Agent with respect
thereto;
provided that, the foregoing provisions relating to Interest
Periods are subject to the following:
(w) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Banking Day,
such Interest Period shall be extended to the next
succeeding Banking Day unless the result of such extension
would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the
immediately preceding Banking Day;
(x) any Interest Period that would otherwise extend
beyond the Termination Date shall end on the Termination
Date;
(y) any Interest Period pertaining to a Eurodollar Loan
that begins on the last Banking Day of a calendar month (or
on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period)
shall end on the last Banking Day of a calendar month; and
(z) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar
Loan during an Interest Period for such Loan.
"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.
"Legent" means Legent Corporation, a Delaware
corporation.
"Liens" means any mortgage, pledge, hypothecation,
assignment for purposes of security, "blocked" account
arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement and any capital lease
having substantially the same economic effect as any of the
foregoing).
"Loan" means any Loan made pursuant to Section 2.1.
<PAGE> 8
"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.
"Margin Stock" shall have the meaning assigned to such
term pursuant to Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System.
"Material Adverse Effect" means a material adverse
effect upon, or material adverse change in, the consolidated
financial position of the Borrower and its Subsidiaries taken as
a whole or the ability of the Borrower to perform its obligations
under this Agreement and the Notes.
"Material Subsidiary" means, at any date, any
Subsidiary of the Borrower which (a) holds any capital stock of
Borrower, (b) in the aggregate with its Subsidiaries, has
consolidated revenues for the period of four consecutive fiscal
quarters most recently ended which are in excess of 1% of the
consolidated revenues of the Borrower and its Subsidiaries taken
as a whole for such period or (c) in the aggregate with its
Subsidiaries, has consolidated assets at such date which are
material to the business of the Borrower and its Subsidiaries
taken as a whole.
"Maturity Date" means with respect to each Eurodollar
Rate Loan, the last day of the Interest Period applicable to such
Loan.
"Merger" means the merger of AcquisitionCo with and
into Legent (or of Legent with and into AcquisitionCo) in
accordance with the terms and conditions of the Merger Agreement,
with Legent being the surviving corporation of such merger.
"Merger Agreement" means the Agreement and Plan of
Merger, dated as of May 25, 1995, among Borrower, AcquisitionCo
and Legent, as in effect on the date hereof and amended,
supplemented or otherwise modified from time to time in
accordance with the provisions of Section 5.2(l).
"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> 9
"Notice of Borrowing" means (a) with respect to a
request for a borrowing hereunder, a request in the form of
Exhibit C-1 hereto, (b) with respect to a request for
continuation of a Eurodollar Rate Loan hereunder, a request in
the form of Exhibit C-2 hereto and (c) with respect to a request
for conversion of or to a Eurodollar Rate Loan hereunder, a
request in the form of Exhibit C-3 hereto, in each case delivered
by Borrower to Agent hereunder.
"Offer to Purchase" means the Offer to Purchase, dated
as of June 1, 1995, of AcquisitionCo relating to the Tender
Offer, as in effect on the date hereof and amended, supplemented
or otherwise modified from time to time in accordance with the
provisions of Section 5.2(l).
"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 Credit Suisse, Mellon Bank and
The Bank of Nova Scotia, or any substitute Reference Bank for any
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.
"Responsible Officer" means the president, chief
executive officer, chief operating officer, chief financial
officer, executive vice president, treasurer, or controller of
the Borrower and such other officer of Borrower designated by a
Responsible Officer of Borrower by notice delivered to Agent.
"Restricted Payment" has the meaning assigned to that
term in Section 5.2(k).
"Shares" means the issued and outstanding common stock
of Legent.
"Subsidiary" means, as to any Person, any now existing
or hereafter organized corporation, partnership or other entity
(a) 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, the power to elect a majority of the board of
<PAGE> 10
directors or other managers of such corporation, partnership or
other entity, or (b) the management of which is otherwise
controlled, directly or indirectly through one or more
intermediaries, by such Person.
"Tender Offer" means the tender offer by AcquisitionCo
for all of the issued and outstanding shares of common stock of
Legent Corporation and the purchase of the Tendered Shares in
accordance with the terms and conditions of the Tender Offer
Documents.
"Tender Offer Documents" means, collectively, the
tender offer statement on Schedule 14D-1, dated June 1, 1995,
filed by AcquisitionCo with the Securities and Exchange
Commission pursuant to Section 14(d)(1) of the Exchange Act,
together with all exhibits thereto, including the Offer to
Purchase, the solicitation/recommendation statement on Schedule
14D-9, dated June 1, 1995, filed by Legent pursuant to Section
14(d)(4) of the Exchange Act, in each case, as in effect on the
date hereof and amended, supplemented or otherwise modified from
time to time in accordance with the provisions of Section 5.2(l).
"Tendered Shares" means the Shares tendered pursuant to
the Tender Offer and not validly withdrawn.
"Termination Date" means July 24, 2000 or such earlier
date upon which the whole of the Commitments are terminated
pursuant to Section 6.1 or otherwise.
"Test Ratio" means, at any date, the ratio (determined
by reference to the consolidated financial statements of the
Borrower and its Subsidiaries most recently required to be
delivered pursuant to Section 5.1(h)(i) or (ii), as the case may
be) of (a) the total Debt of Borrower and its Subsidiaries on a
consolidated basis at such date to (b) the Consolidated Net Worth
of Borrower and its Subsidiaries at such date.
"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 words "to" and "until" mean "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 applied
consistently with the financial statements referenced in Section
4.10.
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.
<PAGE> 11
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.
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 to Borrower on any Banking Day at the Applicable
Lending Office for such Bank during the period from the date
hereof until the Termination Date in an aggregate principal
amount at any one time outstanding not to exceed such Bank's
Commitment then in effect. 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 $10,000,000 or an integral
multiple of $1,000,000 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 (substantially in the form of Exhibit C-1)
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 or (y) 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. Each such
Notice of Borrowing shall be by telex, cable, telefacsimile, or
<PAGE> 11
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) if such requested Loan is to be a Eurodollar Rate Loan,
the Interest Period with respect thereto. Each Bank with respect
to such Loan shall, before 12:00 Noon (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.
(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 (other than loss of the Eurodollar
Rate Margin which otherwise would have accrued), 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 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
<PAGE> 13
event later than two Banking Days prior to making such Loan in
the case of any Eurodollar Rate Loan. With respect to any
Eurodollar Rate Loan, such notice shall also provide the Interest
Period.
(g) Conversion Options. Subject to the provisions of
Section 2.1(i), Borrower may elect from time to time to convert
any amount of Eurodollar Rate Loans to Base Rate Loans by
delivering a Notice of Borrowing (substantially in the form of
Exhibit C-3) to Agent prior to 12:00 Noon, New York City time, at
least one Banking Day prior to the requested date of conversion.
Subject to the provisions of Section 2.1(i), Borrower may elect
from time to time to convert any amount of Base Rate Loans to
Eurodollar Rate Loans by delivering a Notice of Borrowing
(substantially in the form of Exhibit C-3) to Agent prior to
12:00 Noon, New York City time, at least three Banking Days'
prior to the requested date of conversion. Any such Notice of
Borrowing with respect to a conversion to Eurodollar Loans shall
be irrevocable and shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of
any such Notice of Borrowing, Agent shall promptly notify each
Bank thereof. All or any part of outstanding Eurodollar Rate
Loans and Base Rate Loans may be converted as provided herein,
provided that no Base Rate Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is
continuing and Agent has or the Majority Banks have determined
that such a conversion is not appropriate.
(h) Continuation Options. Subject to the provisions
of Section 2.1(i), all or a portion of any maturing Eurodollar
Tranche may be continued as Eurodollar Rate Loans upon the
expiration of the then current Interest Period with respect
thereto by Borrower delivering a Notice of Borrowing
(substantially in the form of Exhibit C-2) to Agent, prior to
12:00 Noon (New York City time) on the third Banking Day prior to
the last day of the then current Interest Period, specifying the
length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Rate Loan may be continued as
such when any Event of Default has occurred and is continuing and
Agent has or the Majority Banks have determined that such a
continuation is not appropriate and provided, further, that if
Borrower shall fail to give such notice or if such continuation
is not permitted such Eurodollar Rate Loans shall be
automatically converted to Base Loans on the last day of such
then expiring Interest Period.
(i) Eurodollar Tranches. All borrowings, conversions
and continuations of Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto,
each Eurodollar Tranche shall be in an amount equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof
and there be no more than 12 Eurodollar Tranches outstanding at
any one time.
Section 2.2 Repayment. (a) Mandatory Repayments.
Borrower shall (i) repay all its outstanding Loans on the
Termination Date and (ii) repay such of its outstanding Loans,
together with accrued interest to the date of such repayment on
the principal amount repaid, as may be required at any time or
from time to time to assure that the principal balance of all
outstanding Loans does not at any time exceed the aggregate
Commitments hereunder.
<PAGE> 14
(b) Voluntary Prepayments. Upon prior written notice
to Agent by Borrower (which notice must be received by Agent not
later than 12:00 Noon, New York City time, three Banking Days
prior to the proposed date of prepayment) 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 $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
Section 2.3 Interest on Loans. (a) Base Rate Loans.
Borrower shall pay interest on the unpaid principal amount of
each Base Rate 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 from time to time
in effect, 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 shall pay
interest on each Eurodollar Rate 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
from time to time in effect, 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 which
is not continued, 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 repaid in whole or in part prior to the
Maturity Date of the applicable Interest Period, then, in
addition to accrued interest thereon, Borrower shall pay to each
Bank for credit to the Applicable Agent's Account, within 2
Banking Days following 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 (other
than any Eurodollar Rate Margin which would have accrued during
such period), exceeds the interest (other than any Eurodollar
Rate Margin included therein) 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, (i) Agent notifies Borrower and each Bank
that (A) adequate and fair means do not exist for Agent to
ascertain the relevant Eurodollar Rate, or (B) one or more of the
<PAGE> 15
Reference Banks 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 (ii) 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, in each such event and until
Agent shall notify Borrower and the Banks that the circumstances
specified in clause (i) or (ii) above are no longer continuing,
(x) the obligation of the Banks to make or continue Eurodollar
Rate Loans, and to convert Base Rate Loans into Eurodollar Loans,
shall be suspended and (y) all Eurodollar Rate Loans outstanding
on or after notice of such an event shall (unless repaid) be
converted into Base Rate Loans on the Maturity Dates of the then
present Interest Periods applicable thereto.
(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:
(i) all Eurodollar Rate Loans maintained by such Bank
(but not those of any other Bank) shall be immediately
converted into Base Rate Loans; provided, however, that, 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) until such notice is rescinded, no further
Eurodollar Rate Loans shall be available from such Bank and
such Bank shall instead make all requested Eurodollar Rate
Loans as Base Rate Loans.
Borrower shall pay to such Bank, within two Banking Days
following 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 shall be conclusive absent manifest error.
Notwithstanding the foregoing, each 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.
(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 from time to time applicable to the
then and any subsequent outstanding Loans shall in all cases be
increased by an additional two percentage points.
<PAGE> 16
(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), (y) the date upon which such
Eurodollar Rate Loan is converted pursuant to subsection
2.1(g) or prepaid and (z) the Termination Date; and
(ii) interest accruing on each Base Rate Loan is
payable on (w) the last Banking Day of each March, June,
September or December, (x) on each date required pursuant to
Section 2.2, (y) the date upon which such Base Rate Loan is
converted pursuant to subsection 2.1(g) and (z) the
Termination Date;
provided, however, that interest accruing on and after the
Termination Date shall be due and payable upon demand.
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, without condition or deduction for any counterclaim,
defense, recoupment or setoff, in Dollars and in same day funds
delivered to Agent not later than 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 to be applied in accordance
with, and subject to, the terms of this Agreement. Agent also
will promptly cause to be distributed to each Bank like funds
relating to the payment of any other amount payable to such Bank
for the account of its Applicable Lending Office to be 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 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) Interest Computations. (i) Computations of
interest for the Eurodollar Rate and the Federal Funds Rate shall
be made by Agent on the basis of a year of 360 days, (ii)
<PAGE> 17
computations of interest for the Base Rate and of the facility
fee 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 or Fee hereunder shall be conclusive and
binding for all purposes, absent manifest error. Any change in
(x) the Base Rate due to a change in the base lending rate or the
Federal Funds Rate shall be effective as of the opening of
business on the effective day of such change in the base lending
rate or the Federal Funds Rate, respectively, (y) the interest
rate on a Loan resulting from a change in the Base Rate or the
Eurodollar Rate Reserve Percentage shall become effective as of
the opening of business on the day on which such change becomes
effective and (z) the interest rate on a Loan resulting from a
change in the Eurodollar Rate Margin or in the Applicable
Facility Fee Rate shall become effective on each Adjustment Date.
For purposes hereof, the term "Adjustment Date" shall mean (i) if
the Compliance Certificate required to be delivered for any
fiscal period is delivered on or prior to the due date specified
in Section 5.1(h)(i) or (ii), as the case may be, the date upon
which Agent receives such Compliance Certificate and (ii) if the
Compliance Certificate required to be delivered for any fiscal
period is not delivered on or prior to the due date specified in
Section 5.1(h)(i) or (ii), as the case may be, each of (A) the
date upon which such Compliance Certificate was due and (B) the
date upon which it actually is delivered to Agent.
(c) 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.
(d) 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 (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.
(e) 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.
(f) Adjustments. If any Bank shall obtain any payment
whether voluntary, involuntary, through the exercise of any right
<PAGE> 18
of setoff, or otherwise with respect to principal, interest, or
Fees due under this Agreement and its Note (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 this Agreement and the
Notes, 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.
(g) Loan Register and Promissory Notes. (i) 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 (A) the
date of and amount of each Loan, the Type of each Loan and, with
respect to Eurodollar Rate Loans, the Interest Period applicable
thereto from time to time, (B) the terms of each Assignment and
Acceptance Agreement delivered to and accepted by it, (C) the
amount of any principal or interest due and payable or to become
due and payable from Borrower to each Bank, (D) the amount of any
sum received by Agent from Borrower under hereunder and each
Bank's share thereof, and (E) the interest rate for such Loan.
Subject to the provisions of clause (iii) below, 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.
(ii) Borrower agrees that, upon the request to the
Agent by any Bank (which request shall be delivered to Agent (A)
within 80 days following the date hereof, in the case of a Bank
which is a party hereto on the date hereof, (B) within 30 days
following the recording of the relevant Assignment and Acceptance
Agreement, in the case of any Assignee or (C) in either case,
within any longer period as Agent and Borrower shall agree),
Borrower will execute and deliver to such Bank a promissory note
of Borrower evidencing the Loans of such Bank, substantially in
the form of Exhibit F with appropriate insertions as to date and
principal amount (a "Note"); provided that no Notes will be
delivered to the Banks until the date which is 90 days after the
date hereof.
(iii) Notwithstanding anything to the contrary
contained herein, the failure of Agent to maintain the register,
or any error therein, shall not in any manner affect the
obligation of Borrower to repay the Loans made to Borrower by the
Banks in accordance with the terms of this Agreement.
<PAGE> 19
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 May 24, 1995; and
(ii) to each Bank, a facility fee equal to Applicable
Facility Fee Rate times 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 the last Banking Day of each March,
June, September, and December of each year, commencing on
September 29, 1995 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 over-
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:
(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 Note, 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 or under any Note, then within
two Banking Days following demand by Agent or such Bank (which
demand, if any, shall be made within six months following the
occurrence of the event or circumstance giving rise to such
increased cost or reduced amount receivable), Borrower shall pay
with respect to any affected Commitment (including Loans
thereunder), promptly for the account of Agent or such Bank, such
<PAGE> 20
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 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.
(c) 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 would otherwise be payable
hereunder and would not, in the reasonable judgment of such Bank,
be otherwise disadvantageous to such Bank.
(d) Survival. Without prejudice to the survival of
any other agreement of Borrower hereunder, the agreement and
obligations of Borrower contained in this Section 2.6 shall
survive the payment in full of the amounts owing hereunder and
under the Notes and the termination of this Agreement.
Section 2.7 Taxes. (a) Payments Free of Taxes.
Subject to subsection (e) below, any and all payments by Borrower
hereunder 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
<PAGE> 21
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 hereunder, 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 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 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
from the execution, delivery or registration or filing or
recording of, or otherwise with respect to, this Agreement or
document delivered hereunder (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
<PAGE> 22
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 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 hereunder. 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 hereunder 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 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
<PAGE> 23
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 amounts owing hereunder and under the
Notes (and the termination of this Agreement) 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 exemptions, 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 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 2.3(e), 2.6 or 2.7
has occurred and is continuing that increases the cost to
Borrower of the Loans by any Bank or Banks (including, without
limitation, by requiring that Borrower make borrowings from a
specific Bank as Base Rate Loans pursuant to Section 2.3(e)),
<PAGE> 24
Borrower may (after paying any accrued amounts required to be
paid pursuant to Section 2.3(e), 2.6 or 2.7 hereof for the period
prior to the taking of such action) either:
(a) require any Bank so affected by such event or
condition to transfer or assign, in whole (but not in part),
without recourse, its Commitment and Loans hereunder in
accordance with the provisions of subsection 8.11(a) to one
or more Assignees (which need not be existing Banks
hereunder) identified to it by Borrower; provided that no
Bank shall be required to assign all or any portion of its
Commitments and Loans pursuant to this Section 2.8 unless
and until such Bank shall have received from such Assignees
one or more payments which, in an aggregate, are at least
equal to the aggregate outstanding principal amount of the
Loans owing to such Bank and all accrued interest and other
amounts owing on account thereof; or
(b) during such time as no Event of Default (or event
which with the giving of notice or lapse of time, or both,
would constitute an Event of Default) has occurred and is
continuing, prepay in full the affected Loans and terminate
the Commitment of any Bank 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 of Eurodollar Rate Loans 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 Reduction or Termination of Commitments.
(a) Voluntary Reduction or Termination. 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
$25,000,000 or an integral multiple of $5,000,000 in excess
thereof, the then unutilized Commitments of the Banks. In the
event of any such reduction, the first installment under Section
2.9(b)(ii) to be reduced shall be that which is scheduled to
occur on the next anniversary of the date hereof and, in the
event that the amount of such reduction exceeds the amount of
such installment (after giving effect to prior reductions
thereof), such excess amounts shall be applied to the remaining
scheduled reductions under Section 2.9(b)(ii) in the inverse
order thereof. If the Commitments are terminated in their
entirety, all accrued Fees thereon shall be payable on the
effective date of such termination.
(b) Mandatory Reductions. The Commitments shall be
reduced (i) on each date of receipt of net proceeds from any
receivables financings of Borrower and its Subsidiaries, by the
amount of all such net proceeds which (in the aggregate with the
amount of net proceeds received from all other such receivables
financings since the date hereof) are in excess of $250,000,000
and (ii) on each anniversary of the date hereof, by $250,000,000
(or, in the case of this clause (ii) only, such lesser amount as
shall be remaining after giving effect to prior reductions made
<PAGE> 25
in accordance with the provisions of Section 2.9(a)). Each
reduction of the Commitments pursuant to this Section 2.9(b)
shall be accompanied by the repayment of any outstanding Loans
and other amounts accrued to the extent required by Section
2.2(a).
ARTICLE III
Conditions of Commitments
Section 3.1 Conditions Precedent to Initial Loans.
The agreement of each Bank to make the initial Loan requested to
be made by it is subject to the satisfaction, prior to or
concurrently with the making of such Loan on the Closing Date, of
the following conditions precedent:
(a) Certificate of Incorporation. Agent shall have
received 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. Agent shall have
received 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. Agent shall have
received 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. Agent shall have
received 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, if any, with
respect to each such Credit Document, certified (as of a
date not earlier than the date hereof) as being true and
correct in each case by a Responsible Officer of Borrower;
(e) Incumbency Certificate. Agent shall have received
a certificate of a Responsible Officer of Borrower
certifying (as of a date not earlier than the date hereof)
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;
<PAGE> 26
(f) Legal Opinion. Agent shall have received a
favorable opinion of each of Gary E. Martinelli &
Associates, P.C. (as counsel to Borrower) and Simpson
Thacher & Bartlett (as counsel to the Agent), substantially
in the form of Exhibit D and E, respectively, hereto, and as
to such other matters as Agent or Majority Banks may
reasonably request;
(g) Closing Certificates. Agent shall have received a
Compliance Certificate.
(h) Fees. Agent shall have received payment in full
of the Fees which are to be paid on or before the Effective
Date.
(i) Acquisition Documents. Agent shall have received
complete and correct copies of (i) the Merger Agreement,
(ii) the Tender Offer Documents and each Additional Tender
Offer Document prepared by or on behalf of Borrower which is
in existence on the Closing Date, (iii) each document
delivered to Borrower and its Subsidiaries by Legent in
final form in connection with the Tender Offer which has
been either (A) filed by Legent with the Securities and
Exchange Commission pursuant to the Securities Exchange Act
of 1934, as amended, or (B) distributed by Legent and its
Subsidiaries to its shareholders (with Borrower hereby
representing and warranting that it has requested that
Legent deliver each such document to Borrower), (iv) all
exhibits, schedules and disclosure letters referred to in
each of the foregoing or delivered pursuant thereto and (v)
all amendments thereto, waivers relating thereto and other
side letters or agreements affecting the terms thereof.
(j) Tender Offer. Agent shall have received evidence
reasonably satisfactory to it that the Tendered Shares shall
have been accepted for purchase in accordance with the
Tender Offer Documents and the Merger Agreement.
(k) Tender of Minimum Shares. Agent shall have
received evidence reasonably satisfactory to it that (i) the
portion of the Shares beneficially owned by AcquisitionCo,
together with the portion of the Shares accepted for payment
pursuant to the Tender Offer which have been represented by
the shareholders with respect thereto to be free and clear
of all Liens and encumbrances, is not less than a majority
of the Shares (on a fully diluted basis), (ii) such portion
of the Shares is sufficient to permit the consummation of
the Merger without the affirmative vote of any other
shareholder and that there shall not have been a material
change in the number of Shares (on a fully diluted basis)
since the date of the Merger Agreement and (iii) no material
portion of such accepted Tendered Shares were not
represented by the shareholders with respect thereto to be
free and clear of all Liens and encumbrances.
(l) Maximum Purchase Price. Agent shall have received
evidence reasonably satisfactory to it that the price per
Share to be paid for the Shares is not in excess of $47.95.
(m) No Material Adverse Information. The Banks shall
not have become aware of any previously undisclosed material
<PAGE> 27
adverse factual information with respect to (i) the Tender
Offer, (ii) the consolidated financial position of the
Borrower and its Subsidiaries taken as a whole (after giving
effect to the Merger), (iii) the ability of the Borrower to
perform its obligations hereunder or (iv) the rights and
remedies of the Banks or the Agent.
(n) Pro Forma Balance Sheet. Agent shall have
received true and correct copies of an estimated pro forma
consolidated balance sheet of the Borrower and its
Subsidiaries as at June 30, 1995 and after giving effect to
the Acquisition and the financings contemplated hereby,
which estimated pro forma balance sheet shall be (i)
substantially in conformity with that contained in the
Confidential Information Memorandum and (ii) in form and
substance reasonably satisfactory to the Banks.
(o) Financial Projections. Agent shall have received
true and correct copies of the projected consolidated cash
flows and income statements of the Borrower and its
Subsidiaries for the period of five consecutive years
following the Closing Date, which projections shall be in
form and substance reasonably satisfactory to the Banks and
shall be certified by a Responsible Officer of the Borrower
as (i) having been prepared in good faith on the basis of
the assumptions stated therein, (ii) being reasonable in
light of conditions existing at the time of delivery of such
projections and, in all material respects, on the Closing
Date and (iii) being substantially in conformity with the
financial projections contained in the Confidential
Information Memorandum.
(p) Termination of Existing Credit Agreement. Agent
shall have received evidence satisfactory to it that the
Commitments under (and as defined in) each Credit Agreement,
dated as of June 21, 1994 (as amended, supplemented or
otherwise modified from time to time), by and between
Borrower, the banks and other financial institutions parties
thereto and Credit Suisse, as agent, shall have been
terminated and that all amounts then due and payable
thereunder are being paid in full with the proceeds of the
Loans hereunder.
(q) Consents. Agent shall have received a certificate
of a Responsible Officer of Borrower certifying as of a date
not earlier than the date hereof that:
(i) no consent, exemption or other action by, or
notice to or filing with, any governmental authority or
other Person is advisable in connection with (A) the
execution, delivery, performance or enforcement of any
Tender Offer Document or (B) the consummation of the
Tender Offer, other than (in each such case) any
consents, exemptions, actions, notices or filings (x)
which have been obtained and remain in full force and
effect or (y) for which the failure to make or obtain
would not be reasonably likely to have a Material
Adverse Effect; and
(ii) all applicable waiting periods have expired
without any action being taken or threatened by any
governmental authority or under any Directive which
would (A) prevent, materially restrain or otherwise
impose material adverse conditions on the transactions
contemplated by this Agreement, the Merger Agreement or
<PAGE> 28
any Tender Offer Document or (B) be reasonably likely
to have a Material Adverse Effect.
Promptly following the Closing Date, Agent shall deliver (or
cause to be delivered) to each Bank a copy of each document,
instrument and agreement provided to Agent by Borrower pursuant
to this Section 3.1.
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 of this Agreement are correct in all
material respects 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 (except to the extent that
such representations and warranties are specifically
limited to a prior date, in which case such
representations and warranties shall be true and
correct in all material respects on and as of such
prior 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 certificates
as Agent may reasonably request.
<PAGE> 29
ARTICLE IV
Representations and Warranties
Borrower represents and warrants as follows:
Section 4.1 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.
Section 4.2 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 corporate powers and have been duly authorized. This
Agreement has been validly executed and delivered on behalf of
Borrower.
Section 4.3 Government Approvals. (a) No 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, other than any consents,
exemptions, actions, notices or filings which have been obtained
and remain in full force and effect.
(b) No consent, exemption or other action by, or notice to
or filing with, any governmental authority or other Person is
advisable (in the reasonable judgment of Borrower) or has
reasonably been requested by Agent in connection with the
execution, delivery, performance or enforcement of this Agreement
or any other Credit Document, other than any consents,
exemptions, actions, notices or filings (x) which have been
obtained and remain in full force and effect, (y) for which the
failure to make or obtain would not be reasonably likely to have
a Material Adverse Effect or (z) in the case of those requested
by Agent, such consents, exemptions, actions, notices or filings
which could not reasonably be expected to be obtained in the
period since such request.
Section 4.4 No Conflicts. The execution, delivery and
performance of this Agreement, the other Credit Documents to
which Borrower and its Subsidiaries are parties, the Tender Offer
Documents and the Merger Agreement, and the consummation of the
transactions contemplated hereby and thereby, will not (a)
violate (i) the certificate of incorporation or by-laws (or
comparable documents) of Borrower, (ii) any Directive or
(iii) any provision of any contract, agreement, indenture or
instrument to which Borrower or any Material Subsidiary is a
party or by which any of its properties is bound, other than any
such provision the violation of which would not reasonably be
expected to have a Material Adverse Effect or (b) be in conflict
with, or result in a breach of or constitute a default under, any
contract, agreement, indenture or instrument referred to in
clause (a)(iii) above, other than any such contract, agreement,
indenture or instrument with respect to which such breach or
<PAGE> 30
default would not reasonably be expected to have a Material
Adverse Effect, or (c) result in the creation or imposition of
any Lien, except Liens permitted under Section 5.2(a) hereof.
Section 4.5 Enforceability. This Agreement and each
Note (if any) is a legal, valid and binding agreement of Borrower
enforceable against Borrower in accordance with its terms,
subject to bankruptcy and similar laws affecting the enforcement
of creditors' rights generally and subject to the availability of
equitable remedies where equitable remedies are sought.
Section 4.6 Title to Property. Borrower and each
Material Subsidiary of Borrower has good and marketable title to
its properties and assets (other than those properties and assets
the loss of which would not reasonably be expected to have a
Material Adverse Effect) free and clear of all Liens or rights of
others, except for Liens permitted by Section 5.2(a).
Section 4.7 Compliance with Law. Borrower and each
Material Subsidiary is in compliance with all applicable
Directives, 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 have a Material Adverse Effect.
Section 4.8 No Litigation. Except as disclosed in the
notes to Borrower's financial statements referred to in Section
4.10, there is no litigation, investigation or proceeding
(including, without limitation, those alleging violation of any
applicable Directive relating to hazardous materials or wastes,
or hazardous or toxic substances) of or before any arbitrator or
any governmental or judicial authority which is 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, and no preliminary or
permanent injunction or order by a state or Federal Court has
been entered in connection with any Credit Document or any
Acquisition Document or any of the transactions contemplated
hereby or thereby, which could reasonably be expected to (a) have
a Material Adverse Effect or (b) have a material adverse effect
upon the right or ability of AcquisitionCo to consummate the
Merger.
Section 4.9 Subsidiaries. Borrower has provided to
Agent and the Banks, in writing, a complete and correct
description of all Material Subsidiaries of Borrower on the date
hereof and the nature and extent of Borrower's ownership interest
therein on the date hereof.
Section 4.10 Financial Information. The financial
statements dated March 31, 1995, and all other financial
information and data furnished in writing by Borrower to Agent or
Banks in connection with the transactions contemplated hereby are
complete, and such financial statements have been prepared in
accordance with generally accepted accounting principles
consistently applied and fairly present the consolidated
financial position and results of operations of Borrower as of
such date. When compared to such financial position and results
of operation on March 31, 1995, (a) there has been no material
adverse change in Borrower's consolidated financial position or
<PAGE> 31
ability to perform its obligations under this Agreement and the
Notes (other than the after-tax charge-off of not more than
$825,000,000 in connection with the Acquisition and the
restructuring of the Borrower and its Subsidiaries to reflect the
consequences thereof), and (b) neither Borrower nor any
Subsidiary has any contingent obligations, liabilities for taxes
or other outstanding financial obligations which are not
disclosed in such statements, information and data, other than
(i) those which, if due and payable by Borrower and its
Subsidiaries, could not have a Material Adverse Effect and (ii)
amounts owing hereunder.
Section 4.11 Margin Regulations. (a) Borrower and its
Subsidiaries are not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock and (b) 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.
Section 4.12 ERISA. There are no Plans (other than as
permitted by Section 5.2(j)) or Multiemployer Plans.
Section 4.13 Investment Company Act. Borrower 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. Borrower is not a "holding company" or
a "subsidiary" of a "holding company" as defined in the Public
Utility Holding Act of 1935, as amended.
Section 4.14 Taxes. Borrower and each of its Material
Subsidiaries has filed or caused to be filed all United States
federal and other material 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 material assessments
made against it or any of its property and all other material
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 could, if required to be paid
by the Borrower and its Subsidiaries, reasonably be expected to
have a Material Adverse Effect.
ARTICLE V
Covenants of Credit Parties
Section 5.1 Affirmative Covenants. So long as any
amount shall be owing hereunder 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 Material Subsidiaries to pay and
<PAGE> 32
discharge, before the same shall become delinquent, (i) all
material 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 (other than, in the case of this clause
(ii) only, those Liens which are permitted pursuant to
Section 5.2(a)); 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 Material Subsidiaries to maintain, or cause to
be maintained for each of its Material Subsidiaries, with
responsible and reputable insurance companies or
associations 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 such Material 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, ownership and control by the Borrower 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 related technology and employ all of its and
their respective assets in such business and others directly
related thereto; provided, however, that nothing contained
in this Section 5.1(c) shall be deemed to prohibit any
merger or consolidation permitted pursuant to Section 5.2(c)
or any asset sale permitted by Section 5.2(f).
(d) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, with the requirements of all
applicable Directives noncompliance with which could
reasonably be expected to have a Material Adverse Effect.
(e) Visitation Rights. At any time and from time to
time during normal business hours and subject to reasonable
advance notice under the circumstances, 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
Material 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
<PAGE> 33
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).
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Material 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 material copyrights, trademarks, service
marks, mask works, trade names, brands, patent rights,
processes, designs and other material 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 Borrower.
As soon as available and in any event within 60 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 cash flow 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 Borrower. As
soon as available and in any event within 105 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;
(iii) Notice of Defaults. As soon as possible and
in any event within five Banking Days after a
Responsible Officer of the Borrower reasonably could be
expected to have obtained knowledge thereof, notice of
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, together with a
statement of a Responsible Officer of Borrower setting
<PAGE> 34
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 (other than the Exhibits thereto, which
Borrower shall be required to provide to Agent or a
Bank only upon written request therefor) 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 actions, suits and proceedings
before any court or governmental department,
commission, board, bureau, agency, or instrumentality
domestic or foreign, affecting Borrower or any of its
Subsidiaries of the type described in Section 4.8 which
(A) could reasonably be expected to have a Material
Adverse Effect and (B) is known to Borrower or in
respect of which Borrower or any Subsidiary has been
served;
(vii) 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
(viii) Significant Events. Promptly upon any
Responsible Officer of Borrower obtaining knowledge
thereof, a written statement from a Responsible Officer
of Borrower describing the details of:
(A) any labor controversy resulting in or
threatening to result in a strike or work stoppage
or slowdown against Borrower or its Subsidiaries
which could reasonably be expected to have a
Material Adverse Effect;
(B) any proposal by any public authority to
acquire all of the assets or business of Borrower
or any Material Subsidiary or any portion of such
assets which is material to the consolidated
financial position of Borrower and its
Subsidiaries taken as a whole; and
(C) any circumstance or event which has had
or might reasonably be expected to have a Material
Adverse Effect.
<PAGE> 35
(i) Use of Loans. Use the proceeds of the Loans (i)
to finance the Tender Offer and the Merger, (ii) for the
acquisition of capital stock of a Person or assets in
transactions not otherwise prohibited by this Agreement and
(iii) for other general corporate purposes.
(j) Consummation of Merger. Cause AcquisitionCo to
consummate the Merger in accordance with the terms of the
Merger Agreement and applicable Directives within 180 days
following the date upon which the Tendered Shares are
accepted for payment pursuant to the Tender Offer; subject
to compliance with Rule 14f-1 promulgated under the
Securities Exchange Act of 1934 (as amended), take all
actions available to it to cause designees of the Borrower
to constitute a majority of the Board of Directors of Legent
as promptly as is reasonably practicable following the
consummation of the Tender Offer; and to comply in all
material respects with the obligations of the Borrower and
AcquisitionCo under the Tender Offer Documents and the
Merger Agreement; not waive or agree to amend any material
covenant binding upon Legent and its Subsidiaries that is
set forth in the Merger Agreement or any Tender Offer
Document if such waiver or amendment would result in a
breach of any of the covenants contained in this Agreement
(assuming that Legent and its Subsidiaries were then
Subsidiaries of the Borrower for purposes hereof).
Section 5.2 Negative Covenants. So long as any
amounts shall be owing hereunder 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 Material 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 which secure obligations disclosed in the financial
statements referred to in Section 4.10 or in the notes
thereto; (iv) Liens placed or existing at the time of any
acquisition on property being acquired by Borrower or such
Material 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 such Material Subsidiary, 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 such Material Subsidiary, 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
<PAGE> 36
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 Material
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
$25,000,000 and such equipment is used in the ordinary
course of business of Borrower or such Material Subsidiary;
(xii) Liens on accounts receivable of the Borrower and its
Subsidiaries to secure Debt incurred thereby on account of
accounts receivables financings; (xiii) 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), (xiv)
Liens on Margin Stock and (xv) other Liens which secure Debt
of the Borrower and its Material Subsidiaries in an
aggregate principal amount not to exceed $75,000,000 at any
one time outstanding.
(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, or permit any Material 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; (iii) guaranties and other contingent liabilities
which do not exceed $75,000,000 in the aggregate and which
are disclosed in the financial statements referred to in
Section 5.1(h)(ii); (iv) guaranties by the Borrower of
obligations of its Subsidiaries which are permitted
hereunder; and (v) guaranties by Subsidiaries of the
Borrower of obligations of the Borrower which are permitted
hereunder.
(c) Merger and Consolidation. Enter into any merger
or consolidation or permit any Subsidiary so to do, except
that, during such time as no Event of Default (or event
which with the giving of notice or lapse of time, or both,
would constitute an Event of Default) has occurred and is
continuing, (i) Borrower or any of its Subsidiaries may
merge or consolidate with any other Person (other than
Borrower or any of its Subsidiaries, as to which the
provisions of clauses (ii) and (iii) below shall apply);
provided that Borrower or such Subsidiary is the surviving
entity thereof, (ii) Borrower may merge or consolidate with
any wholly-owned Subsidiary; provided that Borrower is the
surviving entity thereof and (iii) any wholly-owned
Subsidiary of Borrower may merge or consolidate with another
wholly-owned Subsidiary of Borrower (it being understood
that, for purposes of this clause (iii) only, the existence
of directors' and other nominees' qualifying shares which
are not held, directly or indirectly, by Borrower shall not,
<PAGE> 37
in itself, cause a Subsidiary to fail to be wholly-owned by
Borrower).
(d) Obligations to be Pari Passu. Borrower's
obligations under this Agreement and the Notes 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 Material 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 (or, without duplication,
guaranteed) by Borrower and the Subsidiaries under all such
leases would exceed $75,000,000 in any one fiscal year of
Borrower; provided, however, that the restrictions contained
in 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) Sale of Assets. Sell, lease or otherwise transfer
or dispose, or permit any Material Subsidiary of Borrower to
sell, lease or otherwise transfer or dispose, of any assets
which are material to the conduct of the business of
Borrower and its Subsidiaries taken as a whole, other than
the sale, transfer or other disposition of (i) assets from
Borrower to any of its wholly-owned Subsidiaries or from any
wholly-owned Subsidiary of Borrower to Borrower or any other
wholly-owned Subsidiary thereof, (ii) accounts receivable of
the Borrower and its Subsidiaries in connection with the
consummation of a receivables financing permitted by Section
5.2(a)(xii) and (iii) Margin Stock which is sold,
transferred or otherwise disposed of for not less than its
fair market value.
(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 the amount equal to the sum of (a) $675,000,000
plus (b) the amount equal to 25% of Consolidated Net Income
(to extent positive) for each fiscal year of Borrower ending
after April 1, 1996.
(i) Debt to Consolidated Net Worth Ratio. Permit the
Test Ratio at any time to be greater than the ratio set
forth below opposite the period during which the date of
measurement occurs:
Period Ratio
Closing Date - 03/31/96 3.25 to 1.0
04/01/96 - 03/31/97 2.75 to 1.0
04/01/97 - thereafter 2.25 to 1.0
<PAGE> 38
(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 liabilities under
Subtitle D of Title IV of ERISA of Borrower and its ERISA
Affiliates with respect to such Plans does not, at any time
after the date upon which such ERISA Affiliate becomes an
ERISA Affiliate, exceed $25,000,000; (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.
(k) Dividends. Declare or pay, or permit any
Subsidiary which is not wholly-owned by the Borrower (other
than directors' and other nominees' qualifying shares) to
declare or pay, any dividend (other than dividends payable
solely in common stock of the Borrower) on, or make any
payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any shares
of any class of equity interests of the Borrower or any
warrants or options to purchase any such equity interests,
whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary (such declarations, payments,
setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein
called "Restricted Payments"), except that, to the extent
that no Event of Default (or event which with the giving of
notice or lapse of time, or both, would constitute an Event
of Default) has occurred and is continuing or would result
therefrom (a) Borrower and such Subsidiaries may make up to
$125,000,000 in Restricted Payments during the fiscal year
of the Borrower ending March 31, 1996, (b) Borrower and such
Subsidiaries may make up to $225,000,000 in Restricted
Payments during the fiscal year of the Borrower ending March
31, 1997 and (c) Borrower and such Subsidiaries may make
Restricted Payments in each fiscal year thereafter in an
aggregate amount not to exceed 33% of Consolidated Net
Income for the immediately preceding fiscal year.
(l) Modification of Acquisition Documents. Amend,
supplement or otherwise modify any Tender Offer Document or
the Merger Agreement in any respect which could reasonably
be expected to (i) increase the price paid for the Shares,
(ii) waive or materially lessen or weaken the material
conditions to AcquisitionCo's obligation to purchase the
Shares pursuant to the Tender Offer, (iii) materially impair
the ability of AcquisitionCo to consummate the Merger in
accordance with the terms thereof, (iv) impair the rights
and remedies of the Banks or the Agent or (v) have a
Material Adverse Effect.
<PAGE> 39
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 any of the Loans when the same becomes due and
payable, or Borrower shall fail to pay interest or other sum
due under this Agreement or any Note within five Banking
Days of the date when the same becomes due and payable; or
(b) Representations and Warranties. Any
representation or warranty made or stated to be deemed to be
made by Borrower under any Credit Document shall prove to
have been incorrect 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 (i) any term, covenant or
agreement contained in Section 5.2(h) or (i) of this
Agreement or (ii) any other term, covenant or agreement
contained in this Agreement (other than any failure to pay,
which is subject to clause (a) above) and (in the case of
this clause (ii) only) 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 $10,000,000 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 $10,000,000 shall be
rendered by a court of competent jurisdiction against
Borrower or any of its Material Subsidiaries and such
judgment shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof;
or
(f) Insolvency or Voluntary Proceedings. Borrower or
any of its Material Subsidiaries is generally not paying or
<PAGE> 40
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 general 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 substantial part of
the 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) Binding Effect. Any material provision of this
Agreement or any Note shall for any reason (other than the
waiver or release by the Agent and the Banks of such
provision in accordance with the terms hereof) cease to be
valid and binding on Borrower, or Borrower shall so state in
writing;
(j) Change of Control. Any Person or "group" (within
the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended) (i) shall have acquired
beneficial ownership of 20% or more of any outstanding class
of capital stock of the Borrower having ordinary voting
power in the election of directors of the Borrower (other
than any such Person or "group" which owns such amount of
capital stock on the date of this Agreement) or (ii) shall
obtain the power (whether or not exercised) to elect a
majority of the Borrower's directors 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 with respect
to Borrower and at the option of Majority Banks, by notice from
Agent to Borrower, in any other event, (A) the obligation of each
Bank hereunder 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 and the Notes 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 hereunder and
exercise such rights and remedies pursuant hereto as Agent may
deem appropriate.
<PAGE> 41
ARTICLE VII
Relationship of Agent and Banks
Section 7.1 Authorization and Action. (a) Each Bank
hereby appoints and authorizes Agent, as administrative agent on
behalf of such Bank, to take such action and to exercise such
powers hereunder 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 a specified portion
of 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 hereby, 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 (or, in the case of matters described in clause
(x) above, the specified portion of 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 this Agreement or
applicable Law. Agent agrees to give to each Bank prompt notice
of each notice given to it by Borrower pursuant to the terms
hereof.
(b) Each Bank hereby appoints Co-Agents as co-agents
on behalf of such Bank. Notwithstanding anything to the contrary
contained in this Agreement, the parties hereto hereby agree that
no Co-Agent shall have any rights, duties or responsibilities in
its capacity as Co-Agent and that no Co-Agent shall have the
authority to take any action hereunder in its capacity as such.
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 this Agreement 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 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 this Agreement;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of 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 this Agreement or any other instrument or
document furnished pursuant hereto; and (vi) shall incur no
<PAGE> 42
liability under or in respect of this Agreement 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
Commitment, the Loans made by it and the obligations of Borrower
owed to it under this Agreement and the Notes as a Bank, Agent
shall have the same rights and powers under this Agreement 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 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
(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 Commitment 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
this Agreement or any action taken or omitted by Agent hereunder,
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 reasonable counsel fees) 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, this
Agreement to the extent that Agent is not reimbursed for such
expenses by Borrower. The provisions of this Section 7.5 shall
survive termination of this Agreement.
Section 7.6 Successor Agent. Agent may resign at any
time as Agent under this Agreement by giving 30 days' prior
written notice thereof to Banks and Borrower. Upon any such
<PAGE> 43
resignation, Majority Banks shall have the right to appoint a
successor Agent thereunder (which successor Agent shall be
reasonably acceptable to Borrower). If no successor Agent shall
have been so appointed by Majority Banks, and shall have accepted
such appointment, within 30 days after the retiring Agent's
giving of notice of resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall (a)
be either (i) a commercial bank organized under the laws of the
United States of America or of a state thereof or (ii) an office
of a commercial bank organized under the laws of a jurisdiction
outside of the United States which is located within the United
States and is regulated by the bank regulatory authorities of the
United States or of a state thereof and (b) have a combined
capital and surplus of at least $500,000,000. 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 this Agreement 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 this Agreement.
After any retiring Agent's resignation or removal as Agent under
this Agreement, 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 hereunder.
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, 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 given to or made upon each
party hereto at the address (or its telex or telecopier numbers,
if any) set forth as its address for notices on Schedule 1 hereto
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 or under any Note 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
<PAGE> 44
absolutely void, and (b) no Bank shall assign this Agreement or
any of the rights or obligations of such Bank hereunder or under
any Note except in accordance with Section 8.11.
Section 8.3 Amendments and Related Matters. No
amendment or waiver of any provision of this Agreement or any
Note, 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 this Agreement or
any Note shall, unless in writing and signed by all Banks, do any
of the following: (a) increase the Commitments of any Banks or
subject the Banks to any additional obligations, (b) reduce the
principal of, or interest on, the Loans or fees or other amounts
payable to Banks hereunder, (c) 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, (d) 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 or (e)
amend this Section 8.3; and provided, further, that no amendment,
waiver or consent with respect hereto 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.
Section 8.4 Costs and Expenses; Indemnification. (a)
Expenses. Borrower agrees to pay on demand (i) all reasonable
costs and expenses of Agent in connection with the preparation,
execution, delivery, administration, modification and amendment
of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for Agent
with respect thereto and with respect to advising Agent as to its
rights and responsibilities hereunder, and (ii) all costs and
expenses of Agent and Banks, if any (including, without
limitation, reasonable counsel fees and expenses), in connection
with the enforcement (whether through negotiations, legal
proceedings or otherwise) and restructuring (whether or not in
the nature of a "work-out") of this Agreement, the Notes and the
other documents to be delivered hereunder.
(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) 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
<PAGE> 45
Indemnitee shall have the right to be indemnified hereunder for
its own gross negligence or willful misconduct.
(c) Survival. Without prejudice to the survival of
any other agreement of Borrower hereunder, the agreement and
obligations of Borrower contained in this Section 8.4 shall
survive the payment in full of the amounts owing hereunder and
the termination of this Agreement; provided that, from and after
the date upon which this Agreement is terminated, any request for
indemnity must be provided to Borrower within six months
following the occurrence of the event giving rise thereto (or, if
the amount of such claim is not then reasonably determinable,
within six months after such amount becomes reasonably
determinable).
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 which it reasonably believes to
be 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 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) 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 or any other Credit Document
<PAGE> 46
(including, without limitation, any amendment, waiver, supplement
or other modification hereto) 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 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; (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, internal bank
examiners and regulatory authorities having jurisdiction over
such Bank, and to the extent necessary or advisable in its
judgment 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 and (iv) information which is compelled to be
disclosed pursuant to legal process or court order (provided
that, to the extent practicable, prompt notice of such compulsion
shall be given to Borrower in order to permit Borrower to defend
against such disclosure). Agent and each Bank shall be further
permitted to disclose any such confidential information to the
extent relevant (in the reasonable judgment of Agent or such
Bank, as the case may be) in connection with any litigation
against Borrower (provided that, to the extent practicable, Agent
or such Bank, as the case may be, shall request that the court or
other relevant judicial authority take action to maintain the
confidentiality of such information).
Section 8.11 Assignments and Participations. (a)
Assignments. Each Bank may, upon at least five Banking Days'
notice to Agent and Borrower, assign to one or more financial
institutions (an "Assignee") all or a portion of its rights and
obligations under this Agreement and its Note (including, without
limitation, all or a portion of its Commitment, 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 and Note being
assigned, (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 to an assignee which is not then
a Bank hereunder or an affiliate thereof (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 $10,000,000, (iii) each such assignment shall be to a
financial institution, (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 (except in the case of any assignment made pursuant to
Section 2.8, in which event no such fee shall be due) a
processing and recordation fee of $3,500, and (v) except in the
case of an assignment to an assignee which is a Bank or an
affiliate thereof, Borrower shall consent to such assignment,
<PAGE> 47
which consent shall not be unreasonably withheld. Upon such
execution, delivery, 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 its Note (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 and its Note, 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 hereunder or any other
instrument or document furnished pursuant hereto or with respect
to the taxability of payments to be made hereunder; (iii) such
assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in
Section 4.10 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 as are delegated to Agent by the
terms hereof, 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 are required to be performed
by it as a Bank.
(c) Recording of Assignments. Agent shall maintain at
its Agency Office a copy of each Assignment and Acceptance
Agreement delivered to and accepted by it. The records of Agent
as to 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 shall be conclusive and binding for all purposes,
absent manifest error. Borrower and Agent and Banks may treat
each Person indicated by the records of the Agent to be Bank
hereunder as such for all purposes of this Agreement. Upon
request of Borrower or any Bank from time to time, Agent shall
<PAGE> 48
inform Borrower or such Bank, as the case may be, of the
identities of the Banks hereunder.
(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 and payment by the parties thereto of
the requisite processing and recordation fee (i) accept such
Assignment and Acceptance Agreement and (ii) record the
information contained therein in its records.
(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 and its Note (including,
without limitation, all or a portion of its Commitment and the
Loans owing to it); provided, however, that (i) such Bank's
obligations under this Agreement and its Note (including, without
limitation, its Commitment 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 its Note, 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 and its Note, 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 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
Commitment, Loans or other rights hereunder 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,
<PAGE> 49
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.
(a) The Borrower hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the
other Credit Documents to which it is a party, or for
recognition and enforcement of any judgement in respect
thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the
United States of America for the Southern District of
New York, and appellate courts from any thereof;
(ii) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to the Borrower at its
address set forth under its signature hereto or at such
other address of which the Agent shall have been notified
pursuant thereto;
(iii) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any
other jurisdiction.
(b) Each party hereto hereby consents that any action
or proceeding described in Section 8.13(a) may be brought in the
Courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate
courts from any thereof, and waives any objection that it may now
or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the
same.
Section 8.14 Remedies. The remedies provided to Agent
and Banks herein 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.
<PAGE> 50
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 amounts owing to such Bank
hereunder which are then due and payable, irrespective of whether
or not such Bank shall have made any demand under this Agreement.
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 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 August 15, 1995, Agent shall have received
<PAGE> 51
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
COMPUTER ASSOCIATES INTERNATIONAL,
INC., a Delaware corporation
By /s/Ira Zar
----------------------------
Its Senior Vice President and Treasurer
Address for Notices:
One Computer Associates Plaza
Islandia, New York, 11788-7000
Attn: Treasurer
Telecopier: (516) 342-4854
Telex: 981-393
with a copy (other than in the case of
administrative notices) to:
Attn: General Counsel
Telecopier: (516) 342-4866
CREDIT SUISSE, as Administrative Agent, as
a Co-Agent and as a Bank
By /s/Kristina Catlin
-----------------------------
Its Associate
By /s/Heather J. Renkenberg
-----------------------------
Its Associate
<PAGE> 52
ABN AMRO BANK N.V., New York
Branch, as a Co-Agent and as a Bank
By /s/Frances O. Logan
-----------------------------
Its Vice President
By /s/William Van Nostrand
-----------------------------
Its Vice President
THE BANK OF NEW YORK, as a Co-Agent and
as a Bank
By /s/William A. Kerr
-----------------------------
Its Vice President
THE BANK OF NOVA SCOTIA, New York Agency,
as a Co-Agent and as a Bank
By /s/Stuart Lockhart
-----------------------------
Its Vice President
THE BANK OF TOKYO TRUST COMPANY,
as a Co-Agent and as a Bank
By /s/Paul P. Malecki
-----------------------------
Its Vice President
CHEMICAL BANK, as a Co-Agent and
as a Bank
By /s/Phyllis Sawyer
-----------------------------
Its Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
as a Co-Agent and as a Bank
By /s/Michael D. Hintz
-----------------------------
Its Vice President
<PAGE> 53
CREDIT LYONNAIS NEW YORK BRANCH,
as a Co-Agent and as a Bank
By /s/Robert Ivosevich
----------------------------
Its Senior Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH, as a Co-Agent and as a Bank
By /s/Robert Ivosevich
-----------------------------
Its Senior Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
New York Branch, as a Co-Agent
and as a Bank
By /s/Andreas Pantelli
-----------------------------
Its Vice President
FLEET BANK, as a Co-Agent and as a Bank
By /s/Robert W. Sievers
-----------------------------
Its Senior Vice President
THE FUJI BANK, LIMITED, New York
Branch, as a Co-Agent and as a Bank
By /s/Yoshihiko Shiotsugu
-----------------------------
Its Vice President & Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, New York Branch, as a
Co-Agent and as a Bank
By /s/J. Kenneth Biegen
-----------------------------
Its Senior Vice President
<PAGE> 54
LTCB TRUST COMPANY, as a Co- Agent
and as a Bank
By /s/Rene O. LeBlanc
-----------------------------
Its Senior Vice President
MELLON BANK N.A., as a Co-Agent
and as a Bank
By /s/David Smith
-----------------------------
Its Assistant Vice President
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as a Co-Agent and as a
Bank
By /s/Penelope J.B. Cox
------------------------------
Its Vice President
NATWEST BANK N.A., as a Co-Agent
and as a Bank
By /s/Jeffery B. Carstens
------------------------------
Its Vice President
NATIONSBANK OF TEXAS, N.A., as a
Co-Agent and as a Bank
By /s/Brent W. Mellow
-----------------------------
Its Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Co-Agent and as a Bank
By /s/Tom Partridge
----------------------------
Its Commercial Banking Officer
<PAGE> 55
THE SANWA BANK, LIMITED, as a
Co-Agent and as a Bank
By /s/Dominic J. Sorresso
----------------------------
Its Vice President
SOCIETE GENERALE, as a Co-Agent
and as a Bank
By /s/Gordon St. Denis
----------------------------
Its Vice President
THE SUMITOMO BANK, LIMITED, New
York Branch, as a Co-Agent and as a Bank
By /s/Yoshinori Kawamura
------------------------------
Its Joint General Manager
BANCA COMMERCIALE ITALIANA (New
York Branch), as a Bank
By /s/Charles Dougherty
------------------------------
Its Vice President
By /s/J.M. Welch
------------------------------
Its Assistant Vice President
BANCA POPOLARE DI MILANO, New York
Branch, as Bank
By /s/Esperanza Quintero
------------------------------
Its Vice President
BANK OF MONTREAL, as a Bank
By /s/W. T. Calder
-------------------------------
Its Director
<PAGE> 56
BANQUE PARIBAS, as a Bank
By /s/Mary T. Finnegan
-------------------------------
Its Group Vice President
By /s/Joli Anne Biesel
-------------------------------
Its Assistant Vice President
BAYERISCHE VEREINSBANK AG, New
York Branch, as a Bank
By /s/Marianna Weinzinger
-------------------------------
Its Vice President
By /s/Walter H. Eckmeier
-------------------------------
Its Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as a Bank
By /s/Mark M. Harden
-------------------------------
Its Vice President
LLOYDS BANK PLC, as a Bank
By /s/Paul D. Briamonte
--------------------------------
Its Vice President
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED, as a Bank
By /s/Shigeru Tsujimoto
--------------------------------
Its Senior Vice President & Manager
THE NIPPON CREDIT BANK, LTD., as
a Bank
By /s/Evan Klein
--------------------------------
Its Assistant Vice President
<PAGE> 57
ROYAL BANK OF CANADA, as a Bank
By /s/Stephen Hughes
---------------------------------
Its Senior Manager Computer Industry Group
SHAWMUT BANK, as a Bank
By /s/Olaperi Onipede
----------------------------------
Its Director
SOCIETY NATIONAL BANK, as a Bank
By /s/Marianne T. Meil
-----------------------------------
Its Assistant Vice President
THE TOKAI BANK, LIMITED, as a Bank
By /s/Stuart Schulman
-----------------------------------
Its Senior Vice President
TORONTO DOMINION (NEW YORK), INC.
By /s/Jorge Garcia
------------------------------------
Its Vice President
<PAGE>
Schedule 1
Commitment Schedule
A. Agency Office: Tower 49
12 East 49th Street
New York, New York 10017
Attention: Syndications Agency
Telecopier: (212) 238-5073
<TABLE>
B. Banks: (Listed Below)
<CAPTION>
Bank Commitment Lending Office Address for Notices
<S> <C> <C> <C>
Credit Suisse $105,000,000 Tower 49 Tower 49
12 East 49th Street 12 East 49th Street
New York, New York 10017 New York, New York 10017
Attn: Michael Mast/
Kristin Catlin
Telecopier: (212) 238-5439
ABN AMRO Bank N.V. 75,000,000 500 Park Avenue 500 Park Avenue
New York, New York 10022 New York, New York 10022
Attn: William Van Nostrand
Telecopier: (212) 832-7468
Banca Commerciale Italiana 25,000,000 One William Street One William Street
New York, New York 10004 New York, New York 10004
Attn: Beth Cronin
Telecopier: (212) 809-2124
Telex: MCI6790749
Answerback: BCI
<PAGE>
<CATION>
Bank Commitment Lending Office Address for Notices
Banca Popolare di Milano 25,000,000 375 Park Avenue 375 Park Avenue
New York, New York 10152 New York, New York 10152
Attn: Esperanza Quintero
Telecopier: (212) 838-1077
Telex: 62189
Answerback: BNKMIL UI
Bank of Montreal 25,000,000 430 Park Avenue 430 Park Avenue
New York, New York 10022 New York, New York 10022
Attn: Thomas Calder
Telecopier: (212) 605-1460
The Bank of New York 75,000,000 101 Barclay Street One Wall Street
New York, New York 10286 8th Floor
New York, New York 10286
Attn: William G. C. Dakin
Telecopier: (212) 635-1480
Telex: MCI 62763
Answerback: BONY UW
The Bank of Nova Scotia 95,000,000 One Liberty Plaza One Liberty Plaza
New York, New York 10006 New York, New York 10006
Attn: Alan Reiter
Telecopier: (212)225-5090/91
Telex: WU 71669 859
Answerback: BNSUW
The Bank of Tokyo Trust Company 50,000,000 1251 Avenue of the Americas 1251 Avenue of the Americas
New York, New York 10116 12th Floor
New York, New York 10116
Attn: Paul Malecki
Telecopier: (212) 782-6445
Telex: 211315 BOT UR
<PAGE>
<CAPTION>
Bank Commitment Lending Office Address for Notices
<S> <C> <C> <C>
Banque Paribas 46,000,000 787 Seventh Avenue 787 Seventh Avenue
New York, New York 10019 32nd Floor
New York, New York 10019
Attn: Mary T. Finnegan
Telecopier: (212) 841-2333
Telex: 82982
Answerback: PARIBAS
Bayerische Vereinsbank AG 25,000,000 335 Madison Avenue 335 Madison Avenue
New York, New York 10017 19th Floor
New York, New York 10017
Attn: Marianne Weinzinger
Telecopier: (212) 880-9724
Chemical Bank 50,000,000 52 Broadway 395 North Service Road
New York, New York 10004 Melville, New York 11747
Attn: Phyllis Sawyer
Telecopier: (516) 755-0152
Commerzbank AG 85,000,000 2 World Financial Center 2 World Financial Center
New York, New York 10281 New York, New York 10281
Attn: Michael Hintz
Telecopier: (212) 266-7235
Credit Lyonnais 75,000,000 New York Branch 1301 Avenue of the Americas
1301 Avenue of the Americas New York, New York 10019
New York, New York 10019 Attn: Andrea Griffis, NY
Corporate Group A
Cayman Island Branch Telecopier: (212) 459-3179
c/o New York Branch Telex: 62410
1301 Avenue of the Americas Answerback: CRED
New York, New York 10019
<PAGE>
Bank Commitment Lending Office Address for Notices
The Dai-Ichi Kangyo Bank, Ltd. 75,000,000 One World Trade Center One World Trade Center
Suite 4911 Suite 4911
New York, New York 10048 New York, New York 10048
Attn: Andreas Pantelli
Telecopier: (212) 912-1879
Telex: 232988
Answerback: DKB UR
First Union National Bank of 25,000,000 One First Union Center One First Union Center - TW-19
North Carolina Charlotte, North Carolina Charlotte, North Carolina
28288 28288-0745
Attn: Allison C. Zollicoffer
Telecopier: (704) 374-2802
Fleet Bank 75,000,000 Fleet Bank Fleet Bank
300 Broad Hollow Road 300 Broad Hollow Road
Melville, New York 11747 Melville, New York 11747
Attn: Robert W. Sievers
Telecopier: (516) 547-7402
The Fuji Bank, Ltd. 85,000,000 Two World Trade Center Two World Trade Center
79th Floor 79th Floor
New York, New York 10048 New York, New York 10048
Attn: Richard Janda
Telecopier: (212) 912-0516
The Industrial Bank of Japan, 85,000,000 245 Park Avenue 245 Park Avenue
Limited New York, New York 10167 New York, New York 10167
Attn: Ken Biegen
Telecopier: (212) 856-9450
Telex: 17 55 99
Anwswerback: IBJBRUT
Lloyds Bank Plc 46,000,000 199 Water Street 199 Water Street
New York, New York 10038 New York, New York 10038
Attn: Paul Briamonte
Telecopier: (212) 607-4999
<PAGE>
Bank Commitment Lending Office Address for Notices
<S> <C> <C> <C>
LTCB Trust Company 50,000,000 165 Broadway 165 Broadway
New York, New York 10006 New York, New York 10006
Attn: Winston Brown
Telecopier: (212) 608-3081
Telex: 425722
Mellon Bank N.A. 95,000,000 153-2302 65 East 55th Street
Pittsburgh, Pennsylvania New York, New York 10022
15259 Attn: David Smith
Telecopier: (212) 702-5269
The Mitsui Trust and Banking 25,000,000 200 Liberty Street 200 Liberty Street
Company, Limited New York, New York 10281 21st Floor
New York, New York 10281
Attn: Lain J. Gutierrez
Telecopier: (212) 945-4170
Morgan Guaranty Trust Company 85,000,000 Domestic Lending Office 60 Wall Street
of New York 60 Wall Street New York, New York 10260-0060
New York, New York 10260 Attn: Mathias Blumschein
Telecopier: (212) 648-5018
Eurodollar Lending Office Telex: 177615
Nassau Bahamas Office Answerback: MGT UT
c/o J.P. Morgan Services Inc.
Euro-Loan Servicing Unit
500 Stanton Christiania Road
Newark, Delaware 19713
NatWest Bank N.A. 50,000,000 108 Wyoming Street 190 Motor Parkway
Scranton, Pennsylvania 18503 Happauge, New York 11788
Attn: Jeffrey B. Carstens
Telecopier: (516) 436-2030
NationsBank of Texas, N.A. 75,000,000 901 Main Street 901 Main Street
Dallas, Texas 75202 67th Floor
Dallas, Texas 75202
Attn: Brent W. Mellow
Telecopier: (214) 508-0980
<PAGE>
Bank Commitment Lending Office Address for Notices
<S> <C> <C> <C>
The Nippon Credit Bank, Ltd. 46,000,000 245 Park Avenue 245 Park Avenue
New York, New York 10167 30th Floor
New York, New York 10167
Attn: Nancy Acevedo
Telecopier: (212) 490-3895
PNC Bank, National Association 50,000,000 1 PNC Plaza 335 Madison Avenue
5th and Wood Streets 10th Floor
Pittsburgh, Pennsylvania New York, New York 10017
15265 Attn: Thomas Partridge
Telecopier: (212) 557-5461
Royal Bank of Canada 46,000,000 One Financial Square 600 Wilshire Boulevard
New York, New York 10005-3531Suite 800
Los Angeles, California 90017
Attn: Stephen Hughes
Telecopier: (213) 955-5350
Shawmut Bank 25,000,000 One Federal Street One Federal Street - OF-0323
Boston, Massachusetts 02211 Boston, Massachusetts 02211
Attn: Olaperi Onipede
Telecopier: (617) 423-5214
The Sanwa Bank, Ltd. 85,000,000 55 East 52nd Street 55 East 52nd Street
New York, New York 10055 New York, New York 10055
Attn: Dom Sorresso
Telecopier: (212) 754-1304
Societe Generale 75,000,000 1221 Avenue of the Americas 1221 Avenue of the Americas
New York, New York 10020 New York, New York 10020
Attention: Gordon St. Denis
Telecopier: (212) 278-7430
Society National Bank 25,000,000 127 Public Square 127 Public Square
Cleveland, Ohio 44114 Cleveland, Ohio 44114-1306
Attention: Marianne Meil
Telecopier: (216) 689-4981
<PAGE>
Bank Commitment Lending Office Address for Notices
<S> <C> <C> <C>
The Sumitomo Bank, Limited 50,000,000 277 Park Avenue 277 Park Avenue
New York, New York 10172 New York, New York 10172
Attention: Christine Bonifacic
Telecoper: (212) 224-5197
Telex: SUMBK 420515
Answerback: SUMBK
The Tokai Bank, Limited 25,000,000 55 East 52nd Street 55 East 52nd Street
New York, New York 10055 New York, New York 10055
Attn: Stuart Schulman/
Daniel Higgins
Telecopier: (212) 754-2170
Toronto Dominion (New York), 46,000,000 909 Fannin Street 909 Fannin Street
Houston, Texas 77010 Suite 1700
Houston, Texas 77010
Attn: Neva Nesbitt
Telecopier: (713) 653-8261
with a copy to:
31 West 52nd Street
New York, New York 10019-6101
Attn: Doug Weir
Telecopier: (212) 262-1926
$2,000,000,000
</TABLE>
<PAGE>
Exhibit A
FORM OF
ASSIGNMENT AND ACCEPTANCE AGREEMENT
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 July 24, 1995, 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
administrative 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). On the date hereof, the
Assigned Percentage of the Applicable Commitment is the amount
equal to $________________.
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
<PAGE>
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 the
Credit Agreement or any other instrument or document furnished
pursuant thereto or with respect to the taxability of payments to
be made under the Credit Agreement and the Notes; (iii) confirms
that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section
4.10 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 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 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 ___________
___, 199__; provided that the Effective Date shall not occur
unless, on or before such date, (x) the Assignor receives
$__________________ in same day funds (which amount represents
the amount 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,
(y) to the extent required pursuant to the Credit Agreement,
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 (z) 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 and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of
<PAGE>
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 and the relevant Notes 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 SUBJECT TO
SECTION 8.13 (CHOICE OF FORUM AND SERVICE OF PROCESS) AND SECTION
8.12 (WAIVER OF TRIAL BY JURY) OF THE CREDIT AGREEMENT. THE
PROVISIONS OF SUCH SECTIONS 8.12 AND 8.13 OF THE CREDIT AGREEMENT
ARE INCORPORATED HEREIN BY REFERENCE 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
Form of
Compliance Certificate
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(g)] [5.1(h)] of that certain Credit
Agreement, dated as of July 24, 1995, as the same may have been
amended to the date hereof (the "Credit Agreement"), by and
between Computer Associates International, Inc., a Delaware
corporation ("Borrower"), the banks and other financial
institutions parties thereto (the "Banks") and Credit Suisse, as
administrative 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
Borrower 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 Borrower 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 Borrower and its Subsidiaries as of
, 19 , and such review has disclosed that as of such
date:
(a) the representations and warranties contained in
Section 4 of the Credit Agreement and in the other Credit
Documents are true and correct in all material respects, as
though made on and as of such date (except to the extent
such representations and warranties are specifically limited
to a prior date, in which case such representations and
warranties shall be true and correct in all material
respects on and as of such prior date); and
(b) no event has occurred and is continuing 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.
4. The Test Ratio for purposes of the calculation of
the Eurodollar Rate Margin and the Applicable Facility Fee Rate,
and for purposes of the calculation of compliance with the
covenant set forth in Section 5.2(i), is ________ to 1.0, as
demonstrated in reasonable detail by the calculations set forth
on Schedule I hereto.
<PAGE>
I hereby certify the foregoing information to be true
and correct in all material respects and execute this Compliance
Certificate this day of , 19 .
------------------------------------
Name:
Title:
<PAGE>
Exhibit C-1
Form of
Notice of Borrowing (Drawings)
Credit Suisse
As the Agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section
2.1(b) of that certain Credit Agreement, dated as of July 24,
1995, as the same may have been amended to the date hereof (the
"Credit Agreement"), by and between Computer Associates
International, Inc., a Delaware corporation, the banks and other
financial institutions parties thereto (the "Banks"), the Co-
Agents named therein and Credit Suisse, as administrative 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 the making of 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 (if applicable) 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
[ ] 3 months
[ ] 6 months
[ ] 9 months
[ ] 12 months
[ ] (b) The Base Rate.
COMPUTER ASSOCIATES INTERNATIONAL, INC.
By
-------------------------------------
Its
<PAGE>
Exhibit C-2
Form of
Notice of Borrowing (Continuations)
Credit Suisse
As the Agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section
2.1(h) of that certain Credit Agreement, dated as of July 24,
1995, as the same may have been amended to the date hereof (the
"Credit Agreement"), by and between Computer Associates
International, Inc., a Delaware corporation, the banks and other
financial institutions parties thereto (the "Banks"), the Co-
Agents named therein and Credit Suisse, as administrative 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 the continuation of a Eurodollar Rate Loan under
the Credit Agreement as follows:
1. Maturity Date. The Maturity Date of the Interest
Period presently applicable to such Eurodollar Rate Loan is
, 19 .
2. Amount to be Continued. The requested aggregate
amount of such Eurodollar Rate Loan to be continued is:
$ .
3. Interest Period. The Interest Period for the
proposed Loan is:
[ ] 1 month
[ ] 2 months
[ ] 3 months
[ ] 6 months
[ ] 9 months
[ ] 12 months
Dated: , 19 .
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By
---------------------------------
It
<PAGE>
Exhibit C-3
Form of
Notice of Borrowing (Conversions)
Credit Suisse
As the Agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section
2.1(g) of that certain Credit Agreement, dated as of July 24,
1995, as the same may have been amended to the date hereof (the
"Credit Agreement"), by and between Computer Associates
International, Inc., a Delaware corporation, the banks and other
financial institutions parties thereto (the "Banks"), the Co-
Agents named therein and Credit Suisse, as administrative 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 the continuation of a Eurodollar Rate Loan under
the Credit Agreement as follows:
A. Conversion from Base Rate Loan to Eurodollar Rate Loan.
1. Date of Conversion. The date upon which such
conversion is to occur is , 19 .
2. Amount to be Converted. The requested aggregate
amount of such Base Rate Loan to be converted into a Eurodollar
Rate Loan is: $ .
3. Interest Period. The Interest Period for the
proposed Eurodollar Rate Loan is:
[ ] 1 month
[ ] 2 months
[ ] 3 months
[ ] 6 months
[ ] 9 months
[ ] 12 months
B. Conversion from Eurodollar Rate Loan to Base Rate Loan.
1. Date of Conversion. The date upon which such
conversion is to occur is , 19 .
2. Maturity Date. The Maturity Date of the Interest
Period presently applicable to such Eurodollar Rate Loan is
, 19 , and the Interest Period presently applicable
thereto is _____ months.
3. Amount to be Converted. The requested aggregate
amount of such Eurodollar Rate Loan to be converted into a Base
Rate Loan is: $ .
Dated: , 19 .
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By
---------------------------------
Its
<PAGE>
EXHIBIT E
Form of
Promissory Note
$ New York, New York
------------------ July 24, 1995
FOR VALUE RECEIVED, the undersigned, COMPUTER ASSOCIATES
INTERNATIONAL, INC., a Delaware corporation (the "Borrower"),
hereby unconditionally promises to pay to the order of
(the "Bank") at the office of Credit
Suisse, located at 12 East 49th Street, New York, New York 10017,
in lawful money of the United States of America and in
immediately available funds, on the Termination Date the
principal amount of (a)
DOLLARS ($ ), or, if less, (b) the aggregate
unpaid principal amount of all Loans made by the Bank to the
Borrower pursuant to Section 2.1(a) of the Credit Agreement, as
hereinafter defined. The Borrower further agrees to pay interest
in like money at such office on the unpaid principal amount
hereof from time to time outstanding at the rates and on the
dates specified in the Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a
part hereof the date, Type and amount of each Loan made pursuant
to the Credit Agreement and the date and amount of each payment
or prepayment of principal thereof, each continuation thereof,
each conversion of all or a portion thereof to another Type and,
in the case of Eurodollar Loans, the length of each Interest
Period with respect thereto. The failure to make any such
endorsement shall not affect the obligations of the Borrower in
respect of such Revolving Credit Loan.
This Note (a) is one of the promissory notes referred to in
the Credit Agreement dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Bank, the other banks and
financial institutions from time to time parties thereto, the Co-
Agents named therein and Credit Suisse, as administrative agent,
(b) is subject to the provisions of the Credit Agreement and (c)
is subject to optional and mandatory prepayment in whole or in
part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable,
all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, protest and all
other notices of any kind.
<PAGE>
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them
in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By:
---------------------------------
Title:
<PAGE>
SCHEDULE A
to Promissory Note
<TABLE>
<CAPTION>
SCHEDULE A
to Promisory Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
<S> <C> <C> <C> <C> <C> <C>
Amount of Amount Amount of Amount of Base Rate Unpaid
Date Base Rate Converted to Principal of Loans Converted to Principal Balance
Loans Base Rate Base Rate Eurodollar Rate of Base Rate
Loans Loans Repaid Loans Loans Notation Made By
</TABLE>
<PAGE>
<TABLE>
SCHEDULE B
to Promissory Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE LOANS
<S> <C> <C> <C> <C> <C> <C> <C>
Amount of Amount Interest Amount of Principal Amount of Unpaid Notation
Date Eurodollar Converted to Period and of Eurodollar Rate Eurodollar Principal Made By
Rate Loans Eurodollar Eurodollar Loans Repaid Rate Loans Balance of
Rate Loans Rate with Converted to Eurodollar
Respect Base Rate Rate Loans
Thereto
</TABLE>
