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, 1996
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 30, 1996
par value $.10 per share 364,221,855
<PAGE>
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
INDEX
PART I. Financial Information: Page No.
Item 1. Consolidated Condensed Balance Sheets -
June 30, 1996 and March 31, 1996 1
Consolidated Statements of Income -
Three Months Ended June 30, 1996 and 1995 2
Consolidated Condensed Statements of Cash Flows
Three Months Ended June 30, 1996 and 1995 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
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(In millions)
<CAPTION>
June 30, March 31,
1996 1996
-------- ---------
(Unaudited)
<S> <C> <C>
ASSETS:
Cash and cash equivalents $ 101 $ 97
Marketable securities 102 104
Trade and installment accounts
receivable - net 987 1,182
Inventories and other current assets 58 65
TOTAL CURRENT ASSETS 1,248 1,448
Installment accounts receivable,
due after one 1,838 1,701
Property and equipment - net 422 420
Purchased software products - net 509 580
Excess of cost over net assets
acquired - net 779 786
Investments and other noncurrent
assets 80 81
TOTAL ASSETS $ 4,876 $ 5,016
LIABILITIES AND STOCKHOLDERS' EQUITY:
Loans payable - banks $ 495 $ 495
Other current liabilities 886 1,006
Long-term debt 845 945
Deferred income taxes 744 721
Deferred maintenance revenue 313 367
Stockholders' equity 1,593 1,482
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $ 4,876 $ 5,016
<FN>
See Notes to Consolidated Condensed Financial Statements.
</TABLE>
<PAGE> 2
<TABLE>
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(In millions, except per share amounts)
<CAPTION>
For the Three Months
Ended June 30,
--------------------
1996 1995
-------- --------
<S> <C> <C>
Product revenue and other related income $ 603 $ 397
Maintenance fees 189 181
TOTAL REVENUE 792 578
Costs and expenses:
Selling, marketing and administrative 342 278
Product development and enhancements 75 61
Commissions and royalties 42 26
Depreciation and amortization 120 71
Interest expense - net 23 1
TOTAL COSTS AND EXPENSES 602 437
Income before income taxes 190 141
Income taxes 70 52
NET INCOME $ 120 $ 89
NET INCOME PER COMMON SHARE * $ 0.32 $ 0.23
Weighted average common shares used in
computation * 379 379
<FN>
* Shares and per share amounts adjusted for three-for-two splits
effective June 19, 1996 and August 21, 1995.
<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 millions)
<CAPTION>
For the Three Months
Ended June 30,
--------------------
1996 1995
-------- --------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income $ 120 $ 89
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 120 71
Provision for deferred income taxes 31 8
Increase in noncurrent installment
accounts receivable - ( 151) ( 102)
Decrease in deferred maintenance revenue ( 53) ( 29)
Changes in other operating assets and
liabilities, excludes effects of
acquisitions 60 63
-------- --------
NET CASH PROVIDED BY OPERATING ACTIVITIES 127 100
INVESTING ACTIVITIES:
Acquisitions, primarily purchased software,
marketing rights and intangibles ( 19) ( 11)
Purchase of property and equipment ( 2) ( 2)
Decrease in current marketable securities 2 5
Capitalized development costs ( 4) ( 3)
-------- --------
NET CASH USED IN INVESTING ACTIVITIES ( 23) ( 11)
FINANCING ACTIVITIES:
Repayment of borrowings - net ( 95) ( 136)
Exercise of common stock options/other 7 10
Purchases of treasury stock ( 11) ( 13)
-------- --------
NET CASH USED IN FINANCING ACTIVITIES ( 99) ( 139)
INCREASE(DECREASE)IN CASH AND CASH
EQUIVALENTS BEFORE EFFECT OF EXCHANGE
RATE CHANGES ON CASH 5 ( 50)
Effect of exchange rate changes on cash ( 1) ( 1)
-------- --------
INCREASE(DECREASE)IN CASH AND CASH
EQUIVALENTS 4 ( 51)
CASH AND CASH EQUIVALENTS AT BEGINNING
OF PERIOD 97 116
CASH AND CASH EQUIVALENTS AT END OF -------- --------
PERIOD $ 101 $ 65
======== ========
<FN>
See notes to Consolidated Financial Statements.
</TABLE>
<PAGE> 4
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
JUNE 30, 1996
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, 1996 are not necessarily indicative of
the results that may be expected for the year ending March 31,
1997. 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, 1996.
Cash Dividends: In May 1996, the Company's Board of Directors
declared its regular, semi-annual cash dividend of $.07 per share.
The dividend was paid on July 9, 1996 to stockholders of record on
June 10, 1996, prior to the three-for-two stock split effective
June 19, 1996.
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. Fully diluted net income per share is the same or
not materially different from net income per share.
Stock Split: On May 30, 1996 the Company declared a three-for-
two stock split in the form of a stock dividend, distributed July
15, 1996 to stockholders of record as of June 19, 1996. Shares
and per share amounts have been adjusted to reflect this stock
split as well as the three-for-two stock split effective August
21, 1995.
Statements of Cash Flows: For the three months ended June 30,
1996 and 1995, interest payments were $20 million and $4 million,
respectively, and income taxes paid were $94 million and $35
million, respectively.
<PAGE> 5
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
JUNE 30, 1996
NOTE B -- ACQUISITIONS
On August 1, 1995, the Company acquired 98% of the issued and
outstanding shares of Common Stock of Legent Corporation
("Legent"), and on November 6, 1995 merged Legent into one of its
wholly owned subsidiaries. The aggregate purchase price of
approximately $1.8 billion was funded from drawings under the
Company's $2 billion credit agreement dated July 24, 1995. Legent
was engaged in the design, development, marketing, and support of
a broad range of computer software products for the management of
information systems used to manage mainframe, midrange, server,
workstation and PC systems deployed throughout a business
enterprise. The acquisition was accounted for as a purchase. The
results of Legent's operations have been combined with those of
the Company since the date of acquisition.
The Company recorded an $808 million after-tax charge against
earnings for the write-off of purchased Legent research and
development technology that had not reached the working model
stage and has no alternative future use.
The following table reflects pro forma combined results of
operations (unaudited) of the Company and Legent on the basis that
the acquisition had taken place and the related after-tax charge ,
noted above, was recorded at the beginning of fiscal year 1996:
<TABLE>
(In millions, except per share amounts)
<CAPTION>
For the Three Months
Ended June 30,
--------------------
1996 1995
-------- --------
<S> <C> <C>
Revenue $ 812 $ 642
Net Income 132 ( 782)
Net income per common share $ 0.35 $( 2.17)
Shares used in computation 379 361
</TABLE>
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 1996 or of future operations of the
combined companies under the ownership and operation of the
Company.
<PAGE> 6
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
JUNE 30, 1996
NOTE C - THE 1995 KEY EMPLOYEE STOCK OWNERSHIP PLAN
Under the 1995 Key Employee Stock Employee Ownership Plan (the
"1995 Plan") the Stock Option and Compensation Committee of the
Board of Directors (the"Committee") is authorized to grant,
subject to the attainment of certain Common Stock price
objectives, up to 13,500,000 shares of the Company's restricted
Common Stock to three key executives. The Committee has initially
reserved 4,500,000 shares of Common Stock ("Initial Grant") and
may grant up to an additional 9,000,000 shares (the "Additional
Grants") based on achievement of certain target price levels for
the Company's Common Stock. In January 1996, 900,000 shares of
Common Stock reserved under the Initial Grant vested, subject to
the continued employment of the key executives. Accordingly, the
Company began accruing the compensation expense associated with
the 900,000 shares over the employment period ending March 31,
2000. At June 30, 1996, 5,400,000 shares of the Additional
Grants had been reserved under the 1995 Plan, and 3,600,000 shares
were available for future grants based on stock price performance.
The Initial Grant and Additional Grants are non-transferable, are
subject to risk of forfeiture through March 31, 2000 and are
further subject to significant limitations on transfer during the
seven years following vesting.
All references to the number of shares available and reserved for
grant have been adjusted to reflect a three-for -two stock split
effective June 19, 1996.
<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, 1996 increased by
37%, or $215 million, over the prior year's comparable quarter.
The increase reflects the Company's continued offering of less
restrictive enterprise pricing options, as well as the continued
growth of the licensing fees associated with the Company's
expanding client/server products. The inclusion in the current
period of revenues associated with the Legent products contributed
to the revenue growth. Although, their revenue was not
significant during the quarter the Company's newly introduced
Independent Business Units ("iBUs"), self-contained operational
units focused on selling and supporting business application
solutions such as Enterprise Resource Planning, Human Resources,
Financial, Banking and Micro based products, exhibited promising
trends given their relatively short existence. Maintenance
revenues increased $8 million, or 5%, primarily due to the
acquisition of the Legent client base, partially offset by the
ongoing trend in site consolidations and expanding client/server
revenues which yield lower maintenance. 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 1996 quarter decreased to 43% from 48%
for the June 1995 quarter. The percentage reduction reflects a
higher revenue achievement without a proportionate increase in
fixed and variable administrative costs as well as operating
efficiences realized from the acquisition of Legent. Net research
and development expenditures increased $14 million, or 23%, over
the June 1995 quarter. The addition of Legent product development
personnel, continued emphasis on adapting products for the
client/server environment and broadening of Internet/Intranet
product offerings were largely responsible for the increase.
Commissions and royalties as a percentage of revenue was 5% for
both June 1996 and 1995 quarters. Depreciation and amortization
expense increased $49 million in the June 1996 quarter over the
June 1995 quarter, primarily due to the additional purchased
software product amortization associated with the Legent
acquisition. In the June 1996 quarter, net interest expense
increased by $21 million over the June 1995 quarter as a result of
higher debt levels associated with borrowings used to finance the
Legent acquisition.
<PAGE> 8
Item 2: (Continued)
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Operating Margins:
Pre-tax income for the June 1996 quarter was $190 million, an
increase of 35%, or $50 million over the prior year's comparable
quarter. As a percentage of total revenue, pre-tax income was
24% for both the June 1996 and June 1995 periods. The Company's
consolidated effective tax rate was 37% for both the June 1996
and June 1995 quarters.
Operations:
The Company's products are designed to improve the productivity
and efficiency of its clients' data processing resources.
Accordingly, in a recessionary environment, the Company's products
are often a reasonable economic alternative to customers faced
with the prospect of incurring expenditures to increase their
existing data processing resources. However, a general or
global slowdown in the world economy could adversely affect the
Company's 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 should not be considered to be a
reliable indicator of future performance.
The Company's future 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, cash equivalents and marketable securities for
the quarter ended June 30, 1996 increased by approximately $2
million from the March 31, 1996 year end level. Cash generated
from operations of $127 million, up 27% from the prior year's June
30 quarter end, was largely offset by bank debt repayments of
approximately $95 million and $11 million used to purchase shares
of the Company's stock.
On April 4, 1996, the Company completed a private debt placement
of $320 million in Senior Notes. All proceeds of this financing
were used to repay bank debt under the Company's $2 billion credit
facilities. The Senior Notes have a fixed interest rate of 6.77%
payable semi-annually, a seven year final maturity with a five
year average life and require the maintenance of certain financial
ratios.
On July 11, 1996, the Company restructured its $2 billion
revolving credit line into a $.7 billion 364 day facility and a
$1.3 billion five year facility. Borrowing costs and facility
fees are based upon the achievement of certain financial ratios.
At June 30, 1996, in addition to the $320 million outstanding
under the newly placed Senior Notes, $975 million remained
outstanding under the $2 billion facilities. Outstanding revolving
debt carried an interest rate of the London Interbank Offered Rate
("LIBOR") plus 22.5 basis points at June 30, 1996.
During the quarters ended June 30, 1996 the Company purchased
approximately 360 thousand shares of Common Stock under its open
market repurchase program, bringing the total purchased under
such programs to approximately 71 million shares. In July 1996,
the Company's Board of Directors authorized the repurchase of an
additional 18.75 million shares, increasing the total shares
covered by all repurchase programs to 108.75 million. Share
amounts reflect both the June 1996 and August 1995 3-for-2 stock
splits.
The Company's capital resource requirements at June 30, 1996
consisted of lease obligations for office space and computer
equipment, mortgage or loan obligations and amounts due as a
result of equipment, product and company acquisitions. 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.
(1) $1,300,000,000 Amended and Restated Credit
Agreement dated as of July 3, 1996.
(2) $700,000,000 Credit Agreement, dated as of
July 3, 1996.
(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: July 31, 1996 By: /s/Sanjay Kumar,President
and Chief Operating Officer
Dated: July 31, 1996 By: /s/Peter Schwartz
Sr. Vice President - Finance
(Chief Financial and
Accounting Officer)
COMPUTER ASSOCIATES INTERNATIONAL,INC.
_____________________
$700,000,000
CREDIT AGREEMENT
dated as of July 3, 1996
_____________________
CREDIT SUISSE,
as Administrative Agent
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
ARTICLE I
<S> <C>
Definitions and Interpretation 1
Section 1.1 Defined Terms 1
Section 1.2 Computation of Time Periods 1
Section 1.3 Accounting Terms 9
Section 1.4 No Presumption Against Any Party 9
Section 1.5 Use of Certain Terms 9
Section 1.6 Headings and References 9
Section 1.7 Independence of Provisions 10
ARTICLE II
Amounts and Terms of the Loans 10
Section 2.1 The Loans 10
Section 2.2 Repayment 12
Section 2.3 Interest on Loans 13
Section 2.4 Payments and Computations 15
Section 2.5 Fees 17
Section 2.6 Increased Costs and Capital Requirements 18
Section 2.7 Taxes 19
Section 2.8 Additional Action in Certain Events 22
Section 2.9 Reduction or Termination of Commitments 23
Section 2.10 Extensions of Termination Date for Commitments 23
ARTICLE III
Conditions of Commitments 24
Section 3.1 Conditions Precedent to Initial Loans 24
Section 3.2 Conditions Precedent to Each Loan 26
ARTICLE IV
Representations and Warranties 26
Section 4.1 Organization of Credit Parties 26
Section 4.2 Authorization of Credit Documents 27
Section 4.3 Government Approvals 27
Section 4.4 No Conflicts 27
Section 4.5 Enforceability 27
Section 4.6 Title to Property 27
<PAGE>
<CAPTION>
Page
<S> <C>
Section 4.7 Compliance with Law 28
Section 4.8 No Litigation 28
Section 4.9 Subsidiaries 28
Section 4.10 Financial Information 28
Section 4.11 Margin Regulations 28
Section 4.12 ERISA 28
Section 4.13 Investment Company Act 28
Section 4.14 Taxes 29
ARTICLE V
Covenants of Credit Parties 29
Section 5.1 Affirmative Covenants 29
Section 5.2 Negative Covenants 32
ARTICLE VI
Events of Default 35
Section 6.1 Events of Default 35
ARTICLE VII
Relationship of Agent and Banks 37
Section 7.1 Authorization and Action 37
Section 7.2 Agent's Reliance, Etc. 38
Section 7.3 Agent and Affiliates 38
Section 7.4 Bank Credit Decision 39
Section 7.5 Indemnification 39
Section 7.6 Successor Agent 39
ARTICLE VIII
Miscellaneous 40
Section 8.1 Notices 40
Section 8.2 Successors and Assigns 40
Section 8.3 Amendments and Related Matters 40
Section 8.4 Costs and Expenses; Indemnification 41
Section 8.5 Oral Communications 41
Section 8.6 Entire Agreement 42
Section 8.7 Governing Law 42
Section 8.8 Severability 42
<PAGE>
<CAPTION>
Page
<S> <C>
Section 8.9 Counterparts 42
Section 8.10 Confidentiality 42
Section 8.11 Assignments and Participations 43
Section 8.12 Waiver of Trial by Jury 45
Section 8.13 Choice of Forum and Service of Process 46
Section 8.14 Remedies 46
Section 8.15 Right of Set-Off 46
Section 8.16 Effectiveness and Effect of Agreement 47
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
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 General Counsel of Borrower
Exhibit E Form of Opinion of Simpson Thacher & Bartlett
Exhibit F Form of Promissory Note
</TABLE>
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of July 3, 1996, 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:
Definitions and Interpretation
Section 1.2 Defined Terms. As used in this Agreement.
"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 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
administrative 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:
<PAGE> 2
<TABLE>
<CAPTION>
Test Ratio Rate
------------ ------
<S> <C>
Greater than or equal to 2.25 to 1.0 .150%
Less than 2.25 to 1.0, but greater
than or equal to 1.75 to 1.0 .120%
Less than 1.75 to 1.0, but greater
than or equal to 0.50 to 1.0 .080%
Less than 0.50 to 1.0 .070%
</TABLE>
; provided, however, that, 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 .150%.
"Applicable Lending Office" means, with respect to
each Bank, the office of such Bank designated on the Commitment
Schedule, or in the Assignment and Acceptance 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
<PAGE> 3
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.
"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 1996, distributed
with respect to Borrower in connection with the syndication of the
Commitments.
"Consolidated EBITDA" means, for any period, the
amount equal to the Consolidated Net Income of the Borrower and
its consolidated Subsidiaries for such period plus, to the extent
deducted in calculating such Consolidated Net Income for such
period, all taxes, Consolidated Interest Expense, depreciation,
amortization and other non-cash expenses of the Borrower and its
consolidated Subsidiaries (determined on a consolidated basis in
conformity with generally accepted accounting principles) for such
period.
"Consolidated Interest Expense" means, with respect to
the Borrower and its consolidated Subsidiaries for any period, the
amount which would be deducted for such period on account of
interest expense on the aggregate principal amount of their Debt
in the determination of Consolidated Net Income for such period.
"Consolidated Net Income" means, for any period, the
net income of the Borrower and its consolidated Subsidiaries,
determined on a consolidated basis in conformity with generally
accepted accounting principles.
"Credit Documents" means this Agreement, any Notes,
each Compliance Certificate and each Borrowing Certificate.
<PAGE> 4
"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.
"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.
<PAGE> 5
"Eurodollar Rate Loan" means any Loan during any
period that such Loan is bearing interest as provided in subclause
(i) of Section 2.3(b).
"Eurodollar Rate Margin" means, 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:
<TABLE>
<CAPTION>
Test Ratio Rate
------------- ------
<S> <C>
Greater than or equal to 2.25 to 1.0 .325%
Less than 2.25 to 1.0, but greater
than or equal to 1.75 to 1.0 .280%
Less than 1.75 to 1.0, but greater
than or equal to 0.50 to 1.0 .245%
Less than 0.50 to 1.0 .205%
</TABLE>
; provided, however, that, 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 .325%.
"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 Rate 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.
<PAGE> 6
"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
Eurodollar Rate 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
Rate 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
Rate 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 Rate 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.
<PAGE> 7
"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 (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.
"Majority Banks" means:
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
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.
"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.
"Notes" has the meaning specified in Section
2.4(g)(ii).
<PAGE> 8
"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.
"Other Agreement" means the Credit Agreement, dated as
of the date hereof, among the Borrower, the banks and other
financial institutions parties thereto, the Co-Agents named
therein and Credit Suisse, as administrative agent, as the same
may be amended supplemented or otherwise modified from time to
time.
"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.
"Senior Notes" means (a) the 6.77% Senior Notes, due
April 4, 2003, of the Borrower, issued pursuant to the Note
Purchase Agreement, dated as of April 1, 1996 and (b) any other
senior Debt of the Borrower which is issued to (and held by)
banks, insurance companies and other financial institutions
pursuant to one or more note purchase agreements.
"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
<PAGE> 9
indirectly, upon conversion, exercise or otherwise, the power to
elect a majority of the board of 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.
"Termination Date" means the earlier of (a) the date
which is 364 days following the Effective Date (or such later date
to which the Termination Date is extended pursuant to the
provisions of Section 2.10) and (b) such earlier date upon which
the whole of the Commitments are terminated pursuant to Section
6.1 or otherwise.
"Test Ratio" means, for any period, 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 on the last day of such period to (b)
Consolidated EBITDA of the Borrower and its Subsidiaries for such
period.
"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.
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
<PAGE> 10
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 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.
<PAGE> 11
(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
(it being understood that, although the Agent may seek repayment
from both such Bank and the Borrower, it shall have no right to
obtain double-payment of the amounts owing to it), 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 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
<PAGE> 12
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 Rate 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 Rate 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.
(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.
<PAGE> 13
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 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 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 converted to a Base Rate Loan or 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, 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 (or such conversion)
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 (or conversion)
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 a certificate as to such
excess 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
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 Rate
Loans, shall be suspended and (y) all Eurodollar Rate Loans
outstanding
<PAGE> 14
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 Rate 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.
(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 in arrears 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
<PAGE> 15
(ii) interest accruing on each Base Rate Loan is
payable in arrears 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) 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) 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
<PAGE> 16
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
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
<PAGE> 17
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 (unless the Borrower
and the Agent otherwise agree) no Notes shall 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.
Section 2.5 Fees. (a) Fees Payable. Borrower shall
pay the following fees (the "Fees") at the Agency Office:
(i) to Agent, the Agent's fees in the amounts
and at the times specified in that certain agent fee letter from
Credit Suisse to Borrower, dated as of June [___], 1996; 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
<PAGE> 18
on the last Banking Day of each March, June, September, and
December of each year, commencing on September 30, 1996 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 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
<PAGE> 19
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 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 reasonably requests, Borrower has delivered to such Bank
an opinion of independent tax counsel selected by Borrower and
reasonably acceptable to such Bank to the effect that there is a
reasonable possibility of success, (ii) such Bank has received
from Borrower satisfactory indemnification for any liability,
loss, cost or expense arising out of or relating to the effort to
obtain such refund, and (iii) Borrower shall have indemnified such
Bank for the payment of such Taxes or Other Taxes pursuant to this
subsection (c). Each Bank and Agent, as the case may be, will
promptly (within 30 days) notify Borrower of the assertion of any
liability by any taxing authority with respect to Taxes or Other
Taxes and any payment by such Bank or Agent of such Taxes or Other
Taxes; provided, that, the failure to give such notice shall not
relieve Borrower of its obligations hereunder to make
indemnification for any such liability except that Borrower shall
not be liable for penalties or interest (x) 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 or (y) to the extent that
such penalties or interest arise as a direct result of such
failure to give notice.
(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
<PAGE> 21
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
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 2.7 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
<PAGE> 22
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)), 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
<PAGE> 23
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
$10,000,000 or an integral multiple of $1,000,000 in excess
thereof, the then unutilized Commitments of the Banks. 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 on each date of receipt of net proceeds from any
receivables financings of Borrower and its Subsidiaries, by the
amount equal to (i) 35% of the portion of such net proceeds which,
in the aggregate with all other net proceeds received by the
Borrower and its Subsidiaries after the date hereof from
receivables financings, exceeds the greater of $250,000,000 and
10% of the aggregate amount of accounts receivable of the Borrower
and its Material Subsidiaries as at the date of computation minus
(ii) any amounts (not to exceed the Senior Debt Ratable Share of
such net proceeds) applied to repay the Senior Notes. 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). For
purposes hereof, the term "Senior Debt Ratable Share" shall mean
the percentage of such net proceeds which the then outstanding
principal amount of the Senior Notes then constitutes of the
amount equal to the sum of the Commitments (or, if no such
Commitments are then in effect, the aggregate principal amount of
the Loans then outstanding) hereunder and the then outstanding
principal amount of the Senior Notes.
Section 2.10 Extensions of Termination Date for
Commitments. The Borrower may from time to time request that the
Banks and the Agent agree in writing to extend the Termination
Date then in effect for the Commitments to the 364th day after the
Response Date (as defined below); such request shall be received
by the Agent (which shall promptly notify the Banks thereof) at
least 45 days prior to the Termination Date then
<PAGE> 24
in effect. If on the 29th day prior to the Termination Date then
in effect (such 29th day being the "Response Date"), or on such
date thereafter as to which the Borrower agrees, the Agent
receives from any Bank a written acceptance of the Borrower's
request, then, effective on such 29th day or such other day, the
Termination Date for the Commitments then in effect will be so
extended as to each Bank who accepts the Borrower's request but
shall not be extended as to any other Bank; if the Agent does not
so receive from any Bank such written acceptance, then the
Borrower's request shall be deemed denied and the Termination Date
for the Commitments then in effect shall not be extended as to the
Agent or any Bank. The Agent shall promptly notify the Borrower
of the acceptances received by it. To the extent that the
Termination Date for the Commitments in effect at any time is not
extended as to any Bank pursuant to this Section 2.10 or by other
prior written agreement executed by such Bank before such
Termination Date, the Commitment of such Bank hereunder shall
automatically terminate in whole on the then existing Termination
Date (or any earlier date required by any applicable Directive)
without any further notice or other action by the Borrower, such
Bank or any other Person. It is understood that the Banks and the
Agent shall have no obligation whatsoever to agree to any request
made by the Borrower for the extension of the Termination Date for
the Commitments. If a Bank declines the Borrower's extension
request, the Borrower may, at its option: (a) designate an
alternate bank (which need not be an existing Bank) to purchase an
assignment of such Bank's Commitment and all other amounts payable
to such Bank under this Agreement for a price 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 (in which event such Bank shall cooperate in good faith
with the Borrower and such alternate bank in order to effect the
prompt assignment of all Commitments of, and amounts owing to,
such Bank), or (b) during such time as no Event of Default, or any
event that would constitute an Event of Default but for the
requirement that notice be given or time elapse or both, has
occurred and is continuing, repay all amounts owing to such Bank
and terminate its Commitment.
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
(dated not earlier than April 1, 1996) 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
<PAGE> 25
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 (i) Borrower's by-laws, (ii) the resolutions of
Borrower's Board of Directors approving the execution, delivery
and performance of this Agreement and the Notes and the incurrence
of the borrowings hereunder and (iii) all documents evidencing
other necessary corporate action, if any, with respect to such
execution, delivery, performance and incurrence, 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;
(f) Legal Opinion. Agent shall have received a
favorable opinion of the General Counsel of the 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.
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.
<PAGE> 26
Section 3.2 Conditions Precedent to Each Loan. The
Commitment of each Bank to make each Loan (including, without
limitation, the initial Loans) 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 Article 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 opinions of
in-house counsel or documents as Agent or the Majority Lenders may
reasonably request.
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.
<PAGE> 27
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.
Section 4.4 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 4.5 No Conflicts. The execution, delivery and
performance of this Agreement and the other Credit Documents to
which Borrower and its Subsidiaries are parties, 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 material
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 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).
<PAGE> 28
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 of the transactions
contemplated hereby, which could reasonably be expected to have a
Material Adverse Effect.
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 December 31, 1995 and March 31, 1996, 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 the date thereof. When compared to such financial
position and results of operation on December 31, 1995, (a) there
has been no material adverse change in Borrower's consolidated
financial position or ability to perform its obligations under
this Agreement and the Notes, 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(h)) 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
<PAGE> 29
amended. Borrower is not a "holding company" or a "subsidiary" of
a "holding company" as defined in the Public Utility Holding
Company 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 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 (or through
reasonable and customary programs of self-insurance) 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
<PAGE> 30
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(b) or
any asset sale permitted by Section 5.2(d).
(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 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.
<PAGE> 31
(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 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
<PAGE> 32
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.
(i) Use of Loans. Use the proceeds of the Loans (i)
for the acquisition of capital stock of a Person or assets in
transactions not otherwise prohibited by this Agreement and (ii)
for other general corporate purposes.
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 the 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
<PAGE> 33
statements referred to in Section 4.10 or in the notes thereto;
(iv) Liens placed or existing at the time of any acquisition of
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 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 Persons that become Subsidiaries after the
date hereof, provided that such Liens exist at the time the
respective Persons 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 $100,000,000 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 $150,000,000 at any one time
outstanding.
(b) 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
<PAGE> 34
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,
in itself, cause a Subsidiary to fail to be wholly-owned by
Borrower).
(c) 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.
(d) 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.
(e) Fiscal Year. Change its fiscal year.
(f) Interest Coverage. Permit the ratio of (i)
Consolidated EBITDA of the Borrower and its Subsidiaries for any
period of four consecutive fiscal quarters to (ii) Consolidated
Interest Expense of the Borrower and its Subsidiaries for such
period, to be less than 4.0 to 1.0.
(g) Leverage Ratio. Permit the Test Ratio for any
period of four consecutive fiscal quarters to be greater than 3.0
to 1.0.
(h) 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
<PAGE> 35
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.
(i) Dividends. To the extent that any 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, 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.
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(f) or (g) 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 $25,000,000 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
<PAGE> 36
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 $25,000,000 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 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 reasonable
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
<PAGE> 37
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, and in any such event:
(A) if such event is an event specified in clause (f)
or (g) of this Section 6.1 with respect to the Borrower,
automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes shall immediately
become due and payable;
(B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with
the consent of the Majority Banks, the Agent may, or upon the
request of the Majority Banks, the Agent shall, by notice to the
Borrower declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii)
with the consent of the Majority Banks, the Agent may, or upon the
request of the Majority Banks, the Agent shall, by notice to the
Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the
Notes to be due and payable forthwith, whereupon the same shall
immediately become due and payable; and
(C) in either such event, the Agent shall upon the
request, or may with the consent, of the Majority Banks take such
actions hereunder and exercise such rights and remedies pursuant
hereto as the Agent may deem appropriate.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby
expressly waived.
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
<PAGE> 38
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 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.
<PAGE> 39
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
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
<PAGE> 40
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 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
<PAGE> 41
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 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 a Responsible Officer of the Borrower (or any other natural
person designated by such a Responsible Officer). Any oral
communication from Borrower to Agent
<PAGE> 42
(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
(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,
<PAGE> 43
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 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, in the aggregate with any simultaneous
assignment to the same assignee of such Assigning Bank's
Commitment under (and as defined in) the Other Agreement, 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 hereunder and under the Other Agreement to
less than $10,000,000 in the aggregate, (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 or 2.10, 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,
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).
Notwithstanding anything to the contrary contained in this
Agreement, no Bank may assign all or any part of, or any interest
in, such Bank's Commitments or such Bank's rights and obligations
hereunder, unless such Bank is simultaneously assigning to
<PAGE> 44
the same assignee a ratable share of its Commitments (as defined
therein) and rights and obligations under the Other Agreement.
(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 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.
<PAGE> 45
(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,
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
<PAGE> 46
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.
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
<PAGE> 47
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 July 31, 1996, Agent shall have received counterparts of
this Agreement duly executed by Borrower and the Banks listed on
the signature pages hereof and Agent and shall have so notified
Borrower and Banks.
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
By /s/ Claire McCarthy
-----------------------------
Its Member of Senior Management
By /s/ Ira Lubinsky
-----------------------------
Its Associate
<PAGE> 48
CREDIT SUISSE, as a Co Agent and
as a Bank
By /s/ Kristina Catlin
Its Associate
By /s/ Ira Lubinsky
Its Associate
ABN AMRO BANK N.V., NEW YORK
BRANCH, as a Co-Agent and as a
Bank
By /s/ Frances O'R. Logan
Its Vice President
By /s/ Thomas Rogers
Its Assistant Vice President
THE BANK OF NEW YORK, as a Co-
Agent and as a Bank
By /s/ Ken Sneider
Its Vice President
THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY, as a Co-Agent and as a
Bank
By /s/ Stephen Lockhart
Its Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
as a Co-Agent and as a Bank
By /s/ Juergen Schmieding
Its Vice President
By /s/ Andrew Campbell
Its Assistant Cashier
<PAGE> 49
CREDIT LYONNAIS NEW YORK BRANCH,
as a Co-Agent and as a Bank
By /s/ Mark Campellone
Its Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH, as a Co-Agent and as a
Bank
By /s/ Mark Campellone
Its Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH, as a Co-Agent and
as a Bank
By /s/ Thomas M. Fennessey
Its Assistant Vice President
FLEET BANK, N.A., as a Co-Agent
and as a Bank
By /s/ Jeffrey B. Carstens
Its Vice President
THE FUJI BANK, LIMITED, NEW YORK
BRANCH,as a Co-Agent and as a Bank
By /s/ Toshiaki Yakura
Its Senior Vice President
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> 50
MELLON BANK N.A., as a Co-Agent
and as a Bank
By /s/ David Smith
Its Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as a Co-Agent and as
a Bank
By /s/ Vance B. Barbour
Its Associate
NATIONSBANK OF TEXAS, N.A., as a
Co-Agent and as a Bank
By /s/ Linda G. Roach
Its Vice President
PNC BANK, NATIONAL ASSOCIATION, as
a Co-Agent and as a Bank
By /s/ Tom Partridge
Its Assistant Vice President
THE SANWA BANK, LIMITED, NEW YORK
BRANCH, as a Co-Agent and as a
Bank
By /s/ Dominic J. Sorresso
Its Vice President
SOCIETE GENERALE, NEW YORK BRANCH,
as a Co-Agent and as a Bank
By /s/ G. St. Denis
Its Vice President
<PAGE> 51
TORONTO DOMINION (NEW YORK), INC.,
as a Co-Agent and as a Bank
By /s/ Debbie A. Greene
Its Vice President
BANCA COMMERCIALE ITALIANA (NEW
YORK BRANCH)
By /s/ Charles Daugherty
Its Vice President
By /s/ Sarah Kim
Its Assistant Vice President
BANCA POPOLARE DI MILANO, NEW YORK
BRANCH
By /s/ Anthony Franco
Its Executive Vice President
& General Manager
By /s/ Fulvio Montanari
Its First Vice President
BANK OF MONTREAL
By /s/ W. T. Calder
Its Director
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By /s/ G. Steward
Its Senior Vice President and
Manager
<PAGE> 52
BANQUE PARIBAS
By /s/ Mary T. Finnegan
Its Group Vice President
By /s/ Ann Pifer
Its Vice President
BAYERISCHE VEREINSBANK AG, NEW
YORK BRANCH
By /s/ Marianne Weinzinger
Its Vice President
By /s/ Pamela J. Gillons
Its Credit Analyst
CHEMICAL BANK
By /s/ Phyllis Sawyer
Its Vice President
FIRST UNION NATIONAL BANK
By /s/ Alan Lilienthal
Its Vice President
LTCB TRUST COMPANY
By /s/ S. Otsubo
Its Executive Vice President
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED
By /s/ Margaret Holloway
Its Vice President & Manager
<PAGE> 53
ROYAL BANK OF CANADA, as a Co-
Agent and as a Bank
By /s/ Tom J. Oberaigner
Its Manager
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By /s/ Y. Karamura
Its Joint General Manager
SOCIETY NATIONAL BANK
By /s/ Karen Lee
Its Vice President
THE TOKAI BANK, LIMITED
By /s/ M. Muto
Its Deputy General Manager
THE TOYO TRUST & BANKING CO., LTD.
By /s/ Hiroyuki Fukuro
Its Vice President
<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 3, 1996 (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 responsibility
with respect to the financial condition of Borrower or
<PAGE>
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 LAW. 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
ACCEPTED:
CREDIT SUISSE, as Administrative Agent
By
Its
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 3, 1996 (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(g), 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 364-Day Credit Agreement, dated as of July
3, 1996 (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 364-Day Credit Agreement, dated as of July
3, 1996 (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
Its
<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 364-Day Credit Agreement, dated as of July
3, 1996 (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/
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>
July 3, 1996
To the Administrative Agent and Banks
Referenced Below:
Re: Computer Associates International, Inc.
Credit Agreement dated as of July 3, 1996
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of
Computer Associates International, Inc., a Delaware corporation
(the "Company"). This opinion is furnished to you pursuant to
Section 3.1(f) of the Credit Agreement dated as of July 3, 1996
(the "Credit Agreement"), by and between the Company, on the one
hand, and the banks and other financial institutions party thereto
reflected on the signature pages thereof (the "Banks") and Credit
Suisse, as administrative agent for the Banks (in such capacity
"Administrative Agent"), on the other hand.
In connection with rendering this opinion, I, or
members of my staff under my supervision, have examined an
executed copy of the Credit Agreement, together with all exhibits
thereto. Additionally, I have also familiarized myself with the
Restated Certificate of Incorporation and by-laws of the Company,
as amended to date, and have examined such other corporate
records, certificates and other documents, and such questions of
law, as I have deemed necessary or appropriate for the purposes of
this opinion. In giving such opinion, I have relied upon
certificates of other officers of the Company with respect to the
accuracy of the material factual matters contained in such
certificates.
I have also assumed (i) that all signatures on all
documents examined by myself are genuine, (ii) that all documents
submitted to me as copies are true and correct copies of the
originals, and (iii) that all information submitted to me is
accurate and complete.
On the basis of the foregoing, subject to the
assumptions, limitations, qualifications and exceptions set forth
herein, I am of the opinion that:
1. The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has the requisite corporate power and authority to
own and operate its properties and to carry on its business as
presently conducted.
2. The Company has the requisite corporate power and authority
to enter into the Credit Agreement and the Notes, to bind itself
thereby, and to perform its obligations thereunder.
<PAGE>
3. The Credit Agreement and Notes have been duly authorized by
all necessary corporate action on the part of the Company and have
been duly executed and delivered by the Company. The Credit
Agreement constitutes, and the other Credit Documents to which the
Company becomes a party when executed will constitute, legal and
binding obligations of the Company enforceable against the Company
in accordance with their respective terms.
4. The execution and delivery by the Company of the Credit
Agreement and the other Credit Documents to which it is a party,
the performance by Company of its obligations thereunder and the
consummation of the transactions contemplated thereby will not (a)
violate (i) the Restated Certificate of Incorporation or by-laws
of the Company, as amended, (ii) any Law affecting the Company, or
(iii) any provision of a material contract, agreement, indenture
or instrument which is material to the Company and its Material
Subsidiaries taken as a whole, or (b) be in conflict with, or
result in a breach of or constitute a default under, any material
contract, agreement, indenture or instrument referred to in clause
(a)(iii) above, or (c) result in the creation or imposition of any
Lien, except Liens permitted under Section 5.2 (a) of the Credit
Agreement.
5. No consent, exemption or other action by, or notice to or
filing with, any governmental authority is necessary in connection
with the execution, delivery, performance or enforcement of the
Credit Agreement, or the other Credit Documents to which it is a
party, or for the legality, validity, binding effect or
enforceability thereof.
6. The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. Neither the Company
nor any of its Subsidiaries is a "holding company" or a
"subsidiary" of a "holding company" as defined in the Public
Utility Holding Company Act of 1935, as amended.
7. To the best of my knowledge, except as disclosed in the
Notes to the Company's financial statements referred to in Section
4.10 of the Credit Agreement, there is no action, suit, or
proceeding pending or overtly threatened against the Company or
any of its Subsidiaries of the nature described in Section 4.8 of
the Credit Agreement or in which an injunction or order has been
entered preventing the making of the Loans.
<PAGE>
The opinions set forth above in paragraph 3 are
subject, with your concurrence, to the following qualifications,
assumptions, limitations and exceptions: (i) the performance by
the Company and the enforceability of the Credit Agreement may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or conveyance or other laws of
general application affecting creditor's rights and to court
decisions with respect thereto, by implied or express convenants
of good faith and fair dealing and by general principles of equity
(regardless of whether such validity, binding effect or
enforceability is considered in a proceeding in equity or at law);
(ii) I express no opinion as to the availability of equitable
remedies for any breach of the provisions of the Credit Agreement
other than those relating to the payment of money; (iii) I express
no opinion as to the validity, binding effect, or enforceability
of any provision of the Credit Agreement relating to
indemnification or contribution with respect to claims arising
under any federal or state securities law; and (iv) provisions to
the effect that failure to exercise or delay in exercising rights
or remedies will not operate as a waiver of the right or remedy
are unenforceable under certain circumstances.
To the extent that the opinion herein may be dependent
upon such matters, I have assumed that the Administrative Agent
and each of the Banks is duly organized, validly existing, and in
good standing under the laws of the jurisdiction in which it is
organized, that the Credit Agreement has been or will be duly
authorized, executed, and delivered by each of Administrative
Agent and the Banks, and constitutes the valid and binding
obligation of each of the Administrative Agent and the Banks, and
that each of Administrative Agent and the Banks has the requisite
power and authority to perform its obligations under the Credit
Agreement.
Except as expressly addressed in this opinion, I am
not expressing any opinion as to the effect of the Administrative
Agent's or any Bank's compliance or noncompliance to the
transactions because of the nature of the business conducted by
such Administrative Agent or such Bank.
I am a member of the Bar of the State of New York.
The foregoing opinion is based on and is limited to the law of the
State of New York, and the relevant laws of the United States of
America and the State of Delaware, and I render no opinion with
respect to the laws of any other jurisdiction. The opinions
expressed herein are solely for your benefit in connection with
the above transactions and may not be relied on in any manner or
for any purpose by any other person. Copies may not be furnished
to any other person without my prior written consent, except that
you may furnish copies thereof: (a) to your independent auditors
and attorneys; (b) to any state or federal authority having
regulatory jurisdiction over you; (c) pursuant to the order
<PAGE>
or legal process of any court or governmental agency; (d) in
connection with any legal action to which you are a party arising
out of the above transactions; and (e) any Bank or any proposed
participant in or assignee of any Bank's interest in any Loan or
Commitment, any proposed additional Bank or any successor to the
Administrative Agent.
Very truly yours,
/s/Steven M. Woghin
Steven M. Woghin
Senior Vice President &
General Counsel
<PAGE>
July 3, 1996
Credit Suisse, as Administrative Agent
Tower 49
12 East 49th Street
New York, NY 10017
- and -
The banks and other financial institutions
signatory to the Credit Agreement
described below
Re: Computer Associates International, Inc.
Ladies and Gentlemen:
We have acted as counsel to Credit Suisse, as
Administrative Agent (in such capacity, the "Agent"), in
connection with the preparation, execution and delivery of the
Credit Agreement, dated as of July 3, 1996 (the "Credit
Agreement"), among Computer Associates International, Inc., a
Delaware corporation (the "Borrower"), the Banks parties thereto
and the Agent, and in connection with the negotiation of the form
of the Notes to be delivered in pursuant thereto.
This opinion is delivered to you pursuant to
subsection 3.1(f) of the Credit Agreement. Unless otherwise
defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings, given to them in the Credit
Agreement.
In connection with this opinion, we have examined a
counterpart of the Credit Agreement signed by the Borrower and the
Agent.
In such examination, we have assumed the authenticity
of all documents submitted to use as originals, the legal capacity
of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic
copies and the conformity of such documents to the original
documents.
<PAGE>
We have also assumed that the Credit Agreement has
been duly authorized, executed and delivered by the Borrower, that
the Borrower is duly organized and validly existing under the laws
of its jurisdiction of incorporation and has the corporate power
and authority to execute, deliver and perform its obligations
under the Credit Agreement and that the Credit Agreement has been
authorized by all necessary corporate action on the part of the
Borrower, does not contravene its articles or certificate of
incorporation or by-laws or similar organizational documents or
violate, or require any consent not obtained under any applicable
law or regulation or any order, writ, injunction or decree of any
court or other governmental authority binding upon the Borrower
and does not violate, or require any consent not obtained under,
any contract, agreement, indenture, instrument or other
contractual obligation applicable to or binding upon the Borrower.
Based on upon the foregoing, and subject to the
qualifications and comments set forth below, we are of the opinion
that, insofar as the law of the State of New York is concerned,
the Credit Agreement constitutes a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in
accordance with it terms.
Our opinion is subject to the following
qualifications:
(a) Our opinion is subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and implied convenant of good
faith and fair dealing.
(b) We express no opinion as to subjection 8.13 of the
Credit Agreement insofar as it relates to an action brought in the
U.S. District Court for the Southern District of New York and note
that such matters may be raised by such Court and we express no
opinion as to any other provision of the Credit Agreement which
constitutes a waiver not permitted under applicable law.
(c) We express no opinion as to any indemnification
obligations of the Borrower under the Credit Agreement to the
extent such obligations might be deemed to be inconsistent with
public policy.
(d) We express no opinion as to the provisions of
subsection 2.4(f) or 8.11(e) of the Credit Agreement purporting to
grant a right to set off to purchasers of participations.
(e) We express no opinion as to any provision of the Credit
Agreement that purports to establish an evidentiary standard for
determinations by the Banks or the Agent.
We are members of the Bar of the State of New York,
and we do not express any opinion herein concerning any law other
than the law of the State of New York.
<PAGE>
This opinion is rendered to you in connection with the
above described transaction. This opinion may not be relied upon
by you for any other purpose or relied upon by any other person,
firm or corporation without our prior written consent.
Very truly yours,
/s/Simpson Thacher & Bartlet
<PAGE>
EXHIBIT F
Form of
Promissory Note
$_____________________ New York,
New York
July 3, 1996
FOR VALUE RECEIVED, the undersigned, COMPUTER ASSOCIATES
INTERNATIONAL, INC., a Delaware corporation (the "Borrower"),
hereby unconditionally promises to pay to the order of
(the "Bank") at the office of Credit Suisse, located at 12 East
49th Street, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, on
the Termination Date the principal amount of (a)
DOLLARS ($ ), 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 Rate 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 AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By:
Title:
COMPUTER ASSOCIATES INTERNATIONAL, INC.
_____________________
$1,300,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of July 3, 1996
_____________________
CREDIT SUISSE,
as Administrative Agent
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
ARTICLE I
<S> <C>
Definitions and Interpretation 1
Section 1.1 Defined Terms 1
Section 1.2 Computation of Time Periods 9
Section 1.3 Accounting Terms 9
Section 1.4 No Presumption Against Any Party 9
Section 1.5 Use of Certain Terms 9
Section 1.6 Headings and References 10
Section 1.7 Independence of Provisions 10
ARTICLE II
Amounts and Terms of the Loans 10
Section 2.1 The Loans 10
Section 2.2 Repayment 12
Section 2.3 Interest on Loans 13
Section 2.4 Payments and Computations 15
Section 2.5 Fees 17
Section 2.6 Increased Costs and Capital Requirements 18
Section 2.7 Taxes 19
Section 2.8 Additional Action in Certain Events 22
Section 2.9 Reduction or Termination of Commitments 23
ARTICLE III
Conditions of Commitments 24
Section 3.1 Conditions Precedent to Initial Loans 24
Section 3.2 Conditions Precedent to Each Loan 25
ARTICLE IV
Representations and Warranties 26
Section 4.1 Organization of Credit Parties 26
Section 4.2 Authorization of Credit Documents 26
Section 4.3 Government Approvals 26
Section 4.4 No Conflicts 26
Section 4.5 Enforceability 27
Section 4.6 Title to Property 27
Section 4.7 Compliance with Law 27
<PAGE>
<CAPTION>
Page
<S> <C>
Section 4.8 No Litigation 27
Section 4.9 Subsidiaries 27
Section 4.10 Financial Information 27
Section 4.11 Margin Regulations 28
Section 4.12 ERISA 28
Section 4.13 Investment Company Act 28
Section 4.14 Taxes 28
ARTICLE V
Covenants of Credit Parties 28
Section 5.1 Affirmative Covenants 28
Section 5.2 Negative Covenants 32
ARTICLE VI
Events of Default 34
Section 6.1 Events of Default 34
ARTICLE VII
Relationship of Agent and Banks 36
Section 7.1 Authorization and Action 36
Section 7.2 Agent's Reliance, Etc. 37
Section 7.3 Agent and Affiliates 38
Section 7.4 Bank Credit Decision 38
Section 7.5 Indemnification 38
Section 7.6 Successor Agent 38
ARTICLE VIII
Miscellaneous 39
Section 8.1 Notices 39
Section 8.2 Successors and Assigns 39
Section 8.3 Amendments and Related Matters 39
Section 8.4 Costs and Expenses; Indemnification 40
Section 8.5 Oral Communications 41
Section 8.6 Entire Agreement 41
Section 8.7 Governing Law 41
Section 8.8 Severability 41
Section 8.9 Counterparts 41
<PAGE>
<CAPTION>
Page
<S> <C>
Section 8.10 Confidentiality 41
Section 8.11 Assignments and Participations 42
Section 8.12 Waiver of Trial by Jury 44
Section 8.13 Choice of Forum and Service of Process 45
Section 8.14 Remedies 45
Section 8.15 Right of Set-Off 46
Section 8.16 Effectiveness and Effect of Agreement 46
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
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 General Counsel of Borrower
Exhibit E Form of Opinion of Simpson Thacher & Bartlett
Exhibit F Form of Promissory Note
</TABLE>
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of July 3, 1996, 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 that the Credit Agreement,
dated as of July 24, 1995 (as amended, supplemented or otherwise
modified from time to time), among the Borrower, the banks and
other financial institutions from time to time parties thereto
(including, without limitation, certain of the Banks), the Co-
Agents named therein and the Administrative Agent hereby is
amended and restated as follows:
ARTICLE I
Definitions and Interpretation
Section 1.1 Defined Terms. As used in this Agreement.
"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 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
administrative 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.
<PAGE> 2
"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:
<TABLE>
<CAPTION>
Test Ratio Rate
<S> <C>
Greater than or equal to 2.25 to 1.0 .175%
Less than 2.25 to 1.0, but greater than .150%
or equal to 1.75 to 1.0
Less than 1.75 to 1.0, but greater than .120%
or equal to 0.50 to 1.0
Less than 0.50 to 1.0 .100%
</TABLE>
; provided, however, that, 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 .175%.
"Applicable Lending Office" means, with respect to
each Bank, the office of such Bank designated on the Commitment
Schedule, or in the Assignment and Acceptance 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
<PAGE> 3
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.
"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 1996, distributed
with respect to Borrower in connection with the syndication of the
Commitments.
"Consolidated EBITDA" means, for any period, the
amount equal to the Consolidated Net Income of the Borrower and
its consolidated Subsidiaries for such period plus, to the extent
deducted in calculating such Consolidated Net Income for such
period, all taxes, Consolidated Interest Expense, depreciation,
amortization and other non-cash expenses of the Borrower and its
consolidated Subsidiaries (determined on a consolidated basis in
conformity with generally accepted accounting principles) for such
period.
"Consolidated Interest Expense" means, with respect to
the Borrower and its consolidated Subsidiaries for any period, the
amount which would be deducted for such period on account of
interest expense on the aggregate principal amount of their Debt
in the determination of Consolidated Net Income for such period.
<PAGE> 4
"Consolidated Net Income" means, for any period, the
net income of the Borrower and its consolidated Subsidiaries,
determined on a consolidated basis in conformity with generally
accepted accounting principles.
"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.
"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
<PAGE> 5
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:
<TABLE>
<CAPTION>
Test Ratio Rate
<S> <C>
Greater than or equal to 2.25 to 1.0 .300%
Less than 2.25 to 1.0, but greater than .250%
or equal to 1.75 to 1.0
Less than 1.75 to 1.0, but greater than .205%
or equal to 0.50 to 1.0
Less than 0.50 to 1.0 .175%
</TABLE>
; provided, however, that, 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 .300%.
"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 Rate 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.
<PAGE> 6
"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
Eurodollar Rate 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
Rate 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
Rate 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 Rate Loan
during an Interest Period for such Loan.
"IRC" means the Internal Revenue Code of 1986, as
amended from time to time.
<PAGE> 7
"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.
"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 (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.
"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.
<PAGE> 8
"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.
"Notes" has the meaning specified in Section
2.4(g)(ii).
"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.
"Other Agreement" means the Credit Agreement, dated as
of the date hereof, among the Borrower, the banks and other
financial institutions parties thereto, the Co-Agents named
therein and Credit Suisse, as administrative agent, as the same
may be amended supplemented or otherwise modified from time to
time.
"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.
<PAGE> 9
"Senior Notes" means (a) the 6.77% Senior Notes, due
April 4, 2003, of the Borrower, issued pursuant to the Note
Purchase Agreement, dated as of April 1, 1996 and (b) any other
senior Debt of the Borrower which is issued to (and held by)
banks, insurance companies and other financial institutions
pursuant to one or more note purchase agreements.
"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
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.
"Termination Date" means July 2, 2001 or such earlier
date upon which the whole of the Commitments are terminated
pursuant to Section 6.1 or otherwise.
"Test Ratio" means, for any period, 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 on the last day of such period to (b)
Consolidated EBITDA of the Borrower and its Subsidiaries for
such period.
"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.
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.
<PAGE> 10
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
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
<PAGE> 11
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
(it being understood that, although the Agent may seek repayment
from both such Bank and the Borrower, it shall have no right to
obtain double-payment of the amounts owing to it), 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 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
<PAGE> 12
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 Rate 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 Rate
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.
(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
<PAGE> 13
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 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 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 converted to a Base Rate Loan or 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, 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 (or such conversion)
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 (or conversion)
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 a certificate as to such
excess 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
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
<PAGE> 14
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 Rate
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 Rate 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.
(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 in arrears 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
<PAGE> 15
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 in arrears 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) 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) 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,
<PAGE> 16
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
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
<PAGE> 17
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 (unless the
Borrower and the Agent otherwise agree) no Notes shall 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.
Section 2.5 Fees. (a) Fees Payable. Borrower shall
pay the following fees (the "Fees") at the Agency Office:
(i) to Agent, the Agent's fees in the amounts and at
the times specified in that certain agent fee letter
from Credit Suisse to Borrower, dated as of June
[___], 1996; and
<PAGE> 18
(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 30,
1996 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 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
<PAGE> 19
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 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
<PAGE> 20
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 reasonably requests, Borrower has delivered to such Bank
an opinion of independent tax counsel selected by Borrower and
reasonably acceptable to such Bank to the effect that there is a
reasonable possibility of success, (ii) such Bank has received
from Borrower satisfactory indemnification for any liability,
loss, cost or expense arising out of or relating to the effort
to obtain such refund, and (iii) Borrower shall have indemnified
such Bank for the payment of such Taxes or Other Taxes pursuant to
this subsection (c). Each Bank and Agent, as the case may be,
will promptly (within 30 days) notify Borrower of the assertion of
any liability by any taxing authority with respect to Taxes or
Other Taxes and any payment by such Bank or Agent of such Taxes or
Other Taxes; provided, that, the failure to give such notice shall
not relieve Borrower of its obligations hereunder to make
indemnification for any such liability except that Borrower shall
not be liable for penalties or interest (x) 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 or (y) to the extent that
such penalties or interest arise as a direct result of such
failure to give notice.
<PAGE> 21
(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
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 2.7 shall
<PAGE> 22
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)), 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
<PAGE> 23
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
$10,000,000 or an integral multiple of $1,000,000 in excess
thereof, the then unutilized Commitments of the Banks. 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 on each date of receipt of net proceeds from any
receivables financings of Borrower and its Subsidiaries, by the
amount equal to (i) 65% of the portion of such net proceeds which,
in the aggregate with all other net proceeds received by the
Borrower and its Subsidiaries after the date hereof from
receivables financings, exceeds the greater of $250,000,000
and 10% of the aggregate amount of accounts receivable of the
Borrower and its Material Subsidiaries as at the date of
computation minus (ii) any amounts (not to exceed the Senior Debt
Ratable Share of such net proceeds) applied to repay the Senior
Notes. 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). For purposes hereof, the term "Senior Debt Ratable Share"
shall mean the percentage of such net proceeds which the then
outstanding principal amount of the Senior Notes then constitutes
of the amount equal to the sum of the Commitments (or, if no such
Commitments are then in effect, the aggregate principal amount of
the Loans then outstanding) hereunder and the then outstanding
principal amount of the Senior Notes.
<PAGE> 24
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
(dated not earlier than April 1, 1996) 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 (i) Borrower's by-laws, (ii) the
resolutions of Borrower's Board of Directors approving the
execution, delivery and performance of this Agreement and
the Notes and the incurrence of the borrowings hereunder and
(iii) all documents evidencing other necessary corporate
action, if any, with respect to such execution, delivery,
performance and incurrence, 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;
(f) Legal Opinion. Agent shall have received a
favorable opinion of the General Counsel of the 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.
<PAGE> 25
(h) Fees. Agent shall have received payment in full
of the Fees which are to be paid on or before the Effective
Date.
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 (including, without
limitation, the initial Loans) 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 Article 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 opinions of
in-house counsel or documents as Agent or the Majority
Lenders may reasonably request.
<PAGE> 26
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 and the other Credit Documents to
which Borrower and its Subsidiaries are parties, 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 material
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
<PAGE> 27
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 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 of the transactions
contemplated hereby, which could reasonably be expected to have a
Material Adverse Effect.
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 December 31, 1995 and March 31, 1996, 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 the date thereof. When compared to such financial
position and results of operation on December 31, 1995, (a) there
<PAGE> 28
has been no material adverse change in Borrower's consolidated
financial position or ability to perform its obligations under
this Agreement and the Notes, 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(h)) 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 Company 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
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
<PAGE> 29
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 (or through reasonable and customary programs
of self-insurance) 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(b)
or any asset sale permitted by Section 5.2(d).
(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> 30
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 forth details of such Event of Default or
event and the action which Borrower has taken and
proposes to take with respect thereto;
<PAGE> 31
(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.
(i) Use of Loans. Use the proceeds of the Loans (i)
for the acquisition of capital stock of a Person or assets
in transactions not otherwise prohibited by this Agreement
and (ii) for other general corporate purposes.
<PAGE> 32
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 the 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 of 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
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 Persons that become Subsidiaries after the date
hereof, provided that such Liens exist at the time the
respective Persons 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 $100,000,000 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
<PAGE> 33
of the Borrower and its Material Subsidiaries in an
aggregate principal amount not to exceed $150,000,000 at any
one time outstanding.
(b) 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,
in itself, cause a Subsidiary to fail to be wholly-owned by
Borrower).
(c) 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.
(d) 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.
(e) Fiscal Year. Change its fiscal year.
(f) Interest Coverage. Permit the ratio of (i)
Consolidated EBITDA of the Borrower and its Subsidiaries for
any period of four consecutive fiscal quarters to (ii)
Consolidated Interest Expense of the Borrower and its
Subsidiaries for such period, to be less than 4.0 to 1.0.
(g) Leverage Ratio. Permit the Test Ratio for any
period of four consecutive fiscal quarters to be greater
than 3.0 to 1.0.
(h) 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
<PAGE> 34
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.
(i) Dividends. To the extent that any 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,
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.
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(f) or (g) of this
Agreement or (ii) any other term, covenant or agreement
<PAGE> 35
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 $25,000,000 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 $25,000,000 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
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 reasonable
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
<PAGE> 36
(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, and in any such event:
(A) if such event is an event specified in clause (f)
or (g) of this Section 6.1 with respect to the Borrower,
automatically the Commitments shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the Notes
shall immediately become due and
payable;
(B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i)
with the consent of the Majority Banks, the Agent may, or
upon the request of the Majority Banks, the Agent shall, by
notice to the Borrower declare the Commitments to be
terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the
Majority Banks, the Agent may, or upon the request of the
Majority Banks, the Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement and the
Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable; and
(C) in either such event, the Agent shall upon the
request, or may with the consent, of the Majority Banks take
such actions hereunder and exercise such rights and remedies
pursuant hereto as the Agent may deem appropriate.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby
expressly waived.
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
<PAGE> 37
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 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.
<PAGE> 38
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
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
<PAGE> 39
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
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
<PAGE> 40
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 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
<PAGE> 41
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 a Responsible Officer of the Borrower (or any other natural
person designated by such a Responsible Officer). 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
(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
<PAGE> 42
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 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, in the aggregate with any simultaneous
assignment to the same assignee of such Assigning Bank's
Commitment under (and as defined in) the Other Agreement, 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 hereunder and under the Other Agreement to
less than $10,000,000 in the aggregate, (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 or 2.10, 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,
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
<PAGE> 43
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).
Notwithstanding anything to the contrary contained in this
Agreement, no Bank may assign all or any part of, or any interest
in, such Bank's Commitments or such Bank's rights and obligations
hereunder, unless such Bank is simultaneously assigning to the
same assignee a ratable share of its Commitments (as defined
therein) and rights and obligations under the Other Agreement.
(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> 44
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> 45
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> 46
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 July 31, 1996, Agent shall have received counterparts of
this
<PAGE> 47
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
By /s/ Claire McCarthy
Its Member of Senior Management
By /s/ Ira Lubinsky
Its Associate
CREDIT SUISSE, as a Co Agent and as a
Bank
By /s/ Kristina Catlin
Its Associate
By /s/ Ira Lubinsky
Its Associate
<PAGE> 48
ABN AMRO BANK N.V., NEW YORK BRANCH, as
a Co-Agent and as a Bank
By /s/ Frances O'R. Logan
Its Vice President
By /s/ Thomas Rogers
Its Assistant Vice President
THE BANK OF NEW YORK, as a Co-Agent
and as a Bank
By /s/ Ken Sneider
Its Vice President
THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY, as a Co-Agent and as a Bank
By /s/ Stephen Lockhart
Its Vice President
COMMERZBANK AKTIENGESELLSCHAFT, as a
Co-Agent and as a Bank
By /s/ Juergen Schmieding
Its Vice President
By /s/ Andrew Campbell
Its Assistant Cashier
CREDIT LYONNAIS NEW YORK BRANCH, as a
Co-Agent and as a Bank
By /s/ Mark Campellone
Its Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Co-Agent and as a Bank
By /s/ Mark Campellone
Its Vice President
<PAGE> 49
THE DAI-ICHI KANGYO BANK, LTD., NEW
YORK BRANCH, as a Co-Agent and as a Bank
By /s/ Thomas M. Fennessey
Its Assistant Vice President
FLEET BANK, N.A., as a Co-Agent and as
a Bank
By Jeffrey B. Carstens
Its Vice President
THE FUJI BANK, LIMITED, NEW YORK BRANCH,
as a Co-Agent and as a Bank
By /s/ Toshiaki Yakura
Its Senior Vice President
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
MELLON BANK N.A., as a Co-Agent and as
a Bank
By /s/ David Smith
Its Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as a Co-Agent and as a Bank
By /s/ Vance B. Barbour
Its Associate
<PAGE> 50
NATIONSBANK OF TEXAS, N.A., as a Co-
Agent and as a Bank
By /s/ Linda G. Roach
Its Vice President
PNC BANK, NATIONAL ASSOCIATION, as a
Co-Agent and as a Bank
By /s/ Tom Partridge
Its Assistant Vice President
THE SANWA BANK, LIMITED, NEW YORK
BRANCH, as a Co-Agent and as a Bank
By Dom J. Sorresso
Its Vice President
SOCIETE GENERALE, NEW YORK BRANCH, as a
Co-Agent and as a Bank
By /s/ G. St. Denis
Its Vice President
TORONTO DOMINION (NEW YORK), INC., as
a Co-Agent and as a Bank
By /s/ Debbie A. Greene
Its Vice President
BANCA COMMERCIALE ITALIANA (NEW YORK
BRANCH)
By /s/ Charles Daugherty
Its Vice President
By /s/ Sarah Kim
Its Assistant Vice President
<PAGE> 51
BANCA POPOLARE DI MILANO, NEW YORK
BRANCH
By /s/ Anthony Franco
Its Executive Vice President
& General Manager
By /s/ Fulvio Montanari
Its First Vice President
BANK OF MONTREAL
By W.T. Calder
Its Director
THE BANK OF TOKYO-MITSIBISHI TRUST
COMPANY
By /s/ G. Steward
Its Senior Vice President & Manager
BANQUE PARIBAS
By /s/ Mary T. Finnegan
Its Group Vice President
By /s/ Ann Pifer
Its Vice President
BAYERISCHE VEREINSBANK AG, NEW YORK
BRANCH
By /s/ Marianne Weinzinger
Its Vice President
By /s/ Pamela J. Gillons
Its Credit Analyst
<PAGE> 52
CHEMICAL BANK
By /s/ Phyllis Sawyer
Its Vice President
FIRST UNION NATIONAL BANK
By /s/ Alan Lilienthal
Its Vice President
LTCB TRUST COMPANY
By /s/ S. Otsubo
Its Executive Vice President
THE MITSUI TRUST AND BANKING COMPANY,
LIMITED
By /s/ Margaret Holloway
Its Vice President & Manager
ROYAL BANK OF CANADA, as a Co-Agent
and as a Bank
By /s/ Tom J. Oberaigner
Its Manager
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By /s/ Y. Karamura
Its Joint General Manager
SOCIETY NATIONAL BANK
By /s/ Karen Lee
Its Vice President
<PAGE> 53
THE TOKAI BANK, LIMITED
By /s/ M. Muto
Its Deputy General Manager
THE TOYO TRUST & BANKING CO., LTD.
By /s/ Hiroyuki Fukuro
Its Vice President
<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 3, 1996 (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 responsibility
<PAGE>
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 principal,
<PAGE>
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 LAW. 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
ACCEPTED:
CREDIT SUISSE, as Administrative Agent
By __________________________________
Its
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 3, 1996 (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(g), 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 5-Year Credit Agreement, dated as of July
3, 1996 (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 5-Year Credit Agreement, dated as of July
3, 1996 (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 _____________________
Its
<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 5-Year Credit Agreement, dated as of July
3, 1996 (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
<PAGE>
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>
July 3, 1996
To the Administrative Agent and Banks
Referenced Below:
Re: Computer Associates International, Inc.
Credit Agreement dated as of July 3, 1996
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of
Computer Associates International, Inc., a Delaware corporation
(the "Company"). This opinion is furnished to you pursuant to
Section 3.1(f) of the Amended and Restated Credit Agreement dated
as of July 3, 1996 (the "Credit Agreement"), by and between the
Company, on the one hand, and the banks and other financial
institutions party thereto reflected on the signature pages
thereof (the "Banks") and Credit Suisse, as administrative agent
for the Banks (in such capacity "Administrative Agent"), on the
other hand.
In connection with rendering this opinion, I, or
members of my staff under my supervision, have examined an
executed copy of the Credit Agreement, together with all exhibits
thereto. Additionally, I have also familiarized myself with the
Restated Certificate of Incorporation and by-laws of the Company,
as amended to date, and have examined such other corporate
records, certificates and other documents, and such questions of
law, as I have deemed necessary or appropriate for the purposes of
this opinion. In giving such opinion, I have relied upon
certificates of other officers of the Company with respect to the
accuracy of the material factual matters contained in such
certificates.
I have also assumed (i) that all signatures on all
documents examined by myself are genuine, (ii) that all documents
submitted to me as copies are true and correct copies of the
originals, and (iii) that all information submitted to me is
accurate and complete.
On the basis of the foregoing, subject to the
assumptions, limitations, qualifications and exceptions set forth
herein, I am of the opinion that:
1. The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has the requisite corporate power and authority to
own and operate its properties and to carry on its business as
presently conducted.
2. The Company has the requisite corporate power and authority
to enter into the Credit Agreement and the Notes, to bind itself
thereby, and to perform its obligations thereunder.
<PAGE>
3. The Credit Agreement and Notes have been duly authorized by
all necessary corporate action on the part of the Company and have
been duly executed and delivered by the Company. The Credit
Agreement constitutes, and the other Credit Documents to which the
Company becomes a party when executed will constitute, legal and
binding obligations of the Company enforceable against the Company
in accordance with their respective terms.
4. The execution and delivery by the Company of the Credit
Agreement and the other Credit Documents to which it is a party,
the performance by Company of its obligations thereunder and the
consummation of the transactions contemplated thereby will not (a)
violate (i) the Restated Certificate of Incorporation or by-laws
of the Company, as amended, (ii) any Law affecting the Company, or
(iii) any provision of a material contract, agreement, indenture
or instrument which is material to the Company and its Material
Subsidiaries taken as a whole, or (b) be in conflict with, or
result in a breach of or constitute a default under, any material
contract, agreement, indenture or instrument referred to in clause
(a)(iii) above, or (c) result in the creation or imposition of any
Lien, except Liens permitted under Section 5.2 (a) of the Credit
Agreement.
5. No consent, exemption or other action by, or notice to or
filing with, any governmental authority is necessary in connection
with the execution, delivery, performance or enforcement of the
Credit Agreement, or the other Credit Documents to which it is a
party, or for the legality, validity, binding effect or
enforceability thereof.
6. The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. Neither the Company
nor any of its Subsidiaries is a "holding company" or a
"subsidiary" of a "holding company" as defined in the Public
Utility Holding Company Act of 1935, as amended.
7. To the best of my knowledge, except as disclosed in the
Notes to the Company's financial statements referred to in Section
4.10 of the Credit Agreement, there is no action, suit, or
proceeding pending or overtly threatened against the Company or
any of its Subsidiaries of the nature described in Section 4.8 of
the Credit Agreement or in which an injunction or order has been
entered preventing the making of the Loans.
<PAGE>
The opinions set forth above in paragraph 3 are
subject, with your concurrence, to the following qualifications,
assumptions, limitations and exceptions: (i) the performance by
the Company and the enforceability of the Credit Agreement may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or conveyance or other laws of
general application affecting creditor's rights and to court
decisions with respect thereto, by implied or express convenants
of good faith and fair dealing and by general principles of equity
(regardless of whether such validity, binding effect or
enforceability is considered in a proceeding in equity or at law);
(ii) I express no opinion as to the availability of equitable
remedies for any breach of the provisions of the Credit Agreement
other than those relating to the payment of money; (iii) I express
no opinion as to the validity, binding effect, or enforceability
of any provision of the Credit Agreement relating to
indemnification or contribution with respect to claims arising
under any federal or state securities law; and (iv) provisions to
the effect that failure to exercise or delay in exercising rights
or remedies will not operate as a waiver of the right or remedy
are unenforceable under certain circumstances.
To the extent that the opinion herein may be dependent
upon such matters, I have assumed that the Administrative Agent
and each of the Banks is duly organized, validly existing, and in
good standing under the laws of the jurisdiction in which it is
organized, that the Credit Agreement has been or will be duly
authorized, executed, and delivered by each of Administrative
Agent and the Banks, and constitutes the valid and binding
obligation of each of the Administrative Agent and the Banks, and
that each of Administrative Agent and the Banks has the requisite
power and authority to perform its obligations under the Credit
Agreement.
Except as expressly addressed in this opinion, I am
not expressing any opinion as to the effect of the Administrative
Agent's or any Bank's compliance or noncompliance to the
transactions because of the nature of the business conducted by
such Administrative Agent or such Bank.
I am a member of the Bar of the State of New York.
The foregoing opinion is based on and is limited to the law of the
State of New York, and the relevant laws of the United States of
America and the State of Delaware, and I render no opinion with
respect to the laws of any other jurisdiction. The opinions
expressed herein are solely for your benefit in connection with
the above transactions and may not be relied on in any manner or
for any purpose by any other person. Copies may not be furnished
to any other person without my prior written consent, except that
you may furnish copies thereof: (a) to your independent auditors
and attorneys; (b) to any state or federal authority having
regulatory jurisdiction over you; (c) pursuant to the order
<PAGE>
or legal process of any court or governmental agency; (d) in
connection with any legal action to which you are a party arising
out of the above transactions; and (e) any Bank or any proposed
participant in or assignee of any Bank's interest in any Loan or
Commitment, any proposed additional Bank or any successor to the
Administrative Agent.
Very truly yours,
/s/Steven M. Woghin
Steven M. Woghin
Senior Vice President &
General Counsel
<PAGE>
July 3, 1996
Credit Suisse, as Administrative Agent
Tower 49
12 East 49th Street
New York, NY 10017
- and -
The banks and other financial institutions
signatory to the Credit Agreement
described below
Re: Computer Associates International, Inc.
Ladies and Gentlemen:
We have acted as counsel to Credit Suisse, as
Administrative Agent (in such capacity, the "Agent"), in
connection with the preparation, execution and delivery of the
Amended and Restated Credit Agreement, dated as of July 3, 1996
(the "Credit Agreement"), among Computer Associates International,
Inc., a Delaware corporation (the "Borrower"), the Banks parties
thereto and the Agent, and in connection with the negotiation of
the form of the Notes to be delivered in pursuant thereto.
This opinion is delivered to you pursuant to
subsection 3.1(f) of the Credit Agreement. Unless otherwise
defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings, given to them in the Credit
Agreement.
In connection with this opinion, we have examined a
counterpart of the Credit Agreement signed by the Borrower and the
Agent.
In such examination, we have assumed the authenticity
of all documents submitted to use as originals, the legal capacity
of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic
copies and the conformity of such documents to the original
documents.
<PAGE>
We have also assumed that the Credit Agreement has
been duly authorized, executed and delivered by the Borrower, that
the Borrower is duly organized and validly existing under the laws
of its jurisdiction of incorporation and has the corporate power
and authority to execute, deliver and perform its obligations
under the Credit Agreement and that the Credit Agreement has been
authorized by all necessary corporate action on the part of the
Borrower, does not contravene its articles or certificate of
incorporation or by-laws or similar organizational documents or
violate, or require any consent not obtained under any applicable
law or regulation or any order, writ, injunction or decree of any
court or other governmental authority binding upon the Borrower
and does not violate, or require any consent not obtained under,
any contract, agreement, indenture, instrument or other
contractual obligation applicable to or binding upon the Borrower.
Based on upon the foregoing, and subject to the
qualifications and comments set forth below, we are of the opinion
that, insofar as the law of the State of New York is concerned,
the Credit Agreement constitutes a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in
accordance with it terms.
Our opinion is subject to the following
qualifications:
(a) Our opinion is subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and implied convenant of good
faith and fair dealing.
(b) We express no opinion as to subjection 8.13 of the
Credit Agreement insofar as it relates to an action brought in the
U.S. District Court for the Southern District of New York and note
that such matters may be raised by such Court and we express no
opinion as to any other provision of the Credit Agreement which
constitutes a waiver not permitted under applicable law.
(c) We express no opinion as to any indemnification
obligations of the Borrower under the Credit Agreement to the
extent such obligations might be deemed to be inconsistent with
public policy.
(d) We express no opinion as to the provisions of
subsection 2.4(f) or 8.11(e) of the Credit Agreement purporting to
grant a right to set off to purchasers of participations.
(e) We express no opinion as to any provision of the Credit
Agreement that purports to establish an evidentiary standard for
determinations by the Banks or the Agent.
We are members of the Bar of the State of New York,
and we do not express any opinion herein concerning any law other
than the law of the State of New York.
<PAGE>
This opinion is rendered to you in connection with the
above described transaction. This opinion may not be relied upon
by you for any other purpose or relied upon by any other person,
firm or corporation without our prior written consent.
Very truly yours,
/s/Simpson Thacher & Bartlet
<PAGE>
EXHIBIT F
Form of
Promissory Note
$ New York, New York
July 3, 1996
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 Rate 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 AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By: _____________________________
Title:
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