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, 1997
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 24, 1997
par value $.10 per share 363,931,464
<PAGE>
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
INDEX
PART I. Financial Information: Page No.
Item 1. Consolidated Condensed Balance Sheets -
June 30, 1997 and March 31, 1997 1
Consolidated Statements of Income -
Three Months Ended June 30, 1997 and 1996 2
Consolidated Condensed Statements of Cash Flows -
Three Months Ended June 30, 1997 and 1996 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,
1997 1997
-------- ---------
(Unaudited)
<S> <C> <C>
ASSETS:
Cash and cash equivalents $ 132 $ 143
Marketable securities 57 56
Trade and installment accounts receivable 1,314 1,514
Inventories and other current assets 60 67
-------- --------
TOTAL CURRENT ASSETS 1,563 1,780
Installment accounts receivable,
due after one 2,275 2,200
Property and equipment 437 438
Purchased software products 380 440
Excess of cost over net assets acquired 1,149 1,159
Investments and other noncurrent assets 75 67
-------- --------
TOTAL ASSETS $ 5,879 $ 6,084
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY:
Loans payable - banks $ 540 $ 540
Other current liabilities 1,018 1,187
Long-term debt 1,494 1,663
Deferred income taxes 866 853
Deferred maintenance revenue 313 338
Stockholders' equity 1,648 1,503
-------- --------
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $ 5,879 $ 6,084
<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,
--------------------
1997 1996
------- -------
<S> <C> <C>
Product revenue and other related income $ 712 $ 603
Maintenance fees 179 189
------- -------
TOTAL REVENUE 891 792
Costs and expenses:
Selling, marketing and administrative 381 342
Product development and enhancements 89 75
Commissions and royalties 45 42
Depreciation and amortization 95 120
Interest expense - net 32 23
------- -------
TOTAL COSTS AND EXPENSES 642 602
------- -------
Income before income taxes 249 190
Provision for income taxes 93 70
------- -------
NET INCOME $ 156 $ 120
NET INCOME PER COMMON SHARE $ 0.42 $ 0.32
Weighted average common shares used in
computation 375 379
<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,
--------------------
1997 1996
------- -------
<S> <C> <C>
Net income $ 156 $ 120
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 95 120
Provision for deferred income taxes 37 31
Increase in noncurrent installment
accounts receivable (101) (151)
Decrease in deferred maintenance revenue (23) (53)
Changes in other operating assets and
liabilities, excludes effects of
acquisitions 13 60
------- -------
NET CASH PROVIDED BY OPERATING ACTIVITIES 177 127
INVESTING ACTIVITIES:
Acquisitions, primarily purchased software,
marketing rights and intangibles (6) (19)
Purchase of property and equipment (15) (2)
(Increase) decrease in current marketable
securities (1) 2
Capitalized development costs (6) (4)
------- -------
NET CASH USED IN INVESTING ACTIVITIES (28) (23)
FINANCING ACTIVITIES:
Repayment of borrowings - net (167) (95)
Exercise of common stock options/other 18 7
Purchases of treasury stock (10) (11)
------- -------
NET CASH USED IN FINANCING ACTIVITIES (159) (99)
(DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS
BEFORE EFFECT OF EXCHANGE RATE CHANGES ON CASH (10) 5
Effect of exchange rate changes on cash (1) (1)
------- -------
(DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (11) 4
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 143 97
------- -------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 132 $ 101
======= =======
<FN>
See notes to Consolidated Financial Statements.
</TABLE>
<PAGE> 4
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
JUNE 30, 1997
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, 1997 are not necessarily indicative
of the results that may be expected for the year ending March 31, 1998.
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, 1997.
Cash Dividends: In May 1997, the Company's Board of Directors declared
its regular, semi-annual cash dividend of $.05 per share. The dividend
was paid on July 7, 1997 to stockholders of record on June 20, 1997.
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.
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings
per Share," which is required to be adopted for both interim and annual
financial statements for periods ending after December 15, 1997. At
that time, the Company will be required to change the method currently
used to compute earnings per share and to restate all prior periods.
SFAS No. 128 will require the Company to present "basic" and "diluted"
earnings per share (EPS) on the face of the income statement. The
computation of "basic" EPS replaces primary EPS. If the Company had
implemented SFAS No. 128 during this quarter, it would have reported
basic EPS of $.43 and $.33 for the quarters ended June 30, 1997 and
1996, respectively. Diluted EPS would have been $.41 and $.32 for the
respective quarters.
Statements of Cash Flows: For the three months ended June 30, 1997 and
1996, interest payments were $45 million and $20 million, respectively,
and income taxes paid were $121 million and $94 million, respectively.
<PAGE> 5
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
JUNE 30, 1997
On November 11, 1996, the Company acquired 98% of the issued and
outstanding shares of Common Stock of Cheyenne Software, Inc.
("Cheyenne"), and on December 2, 1996 merged into Cheyenne one of its
wholly owned subsidiaries. The aggregate purchase price of approximately
$1.2 billion was funded from drawings under the Company's $2 billion
credit agreements. Cheyenne was engaged in the design, development,
marketing, and support of storage, management, security and
communications software for desktops and distributed enterprise
networks. The acquisition was accounted for as a purchase. The results
of Cheyenne's operations have been combined with those of the Company
since the date of acquisition.
The Company recorded a $598 million after-tax charge against earnings
for the write-off of purchased Cheyenne research and development
technology that had not reached the working model stage and has no
alternative future use. Research and development charges are generally
based upon a discounted cash flow analysis.
The following table reflects pro forma combined results of operations
(unaudited) of the Company and Cheyenne 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 1997:
<TABLE>
(in millions, except per share amounts)
<CAPTION>
For the Three Months
Ended June 30, 1996
--------------------
<S> <C>
Revenue $ 841
Net (loss) (496)
Net (loss) per common share $ (1.36)
Shares used in computation 364
</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 acquisitions been consummated at the beginning of fiscal year 1997
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, 1997
NOTE C - THE 1995 KEY EMPLOYEE STOCK OWNERSHIP PLAN
Under the 1995 Key Employee Stock Ownership Plan (the "1995 Plan") a
total of 13.5 million restricted shares were available for grant to
three key executives. In January 1996, nine hundred thousand shares
vested under the initial grant of 4.5 million shares, subject to the
continued employment of the key executives through March 31, 2000.
Accordingly, the Company began accruing the compensation expense
associated with these nine hundred thousand shares over the employment
period. Additional grants of nine million shares are available under
the 1995 Plan and have been reserved pending the achievement of certain
price targets. The additional grants and the unvested portion of the
initial grant are subject to risk of forfeiture through March 31, 2000,
and further subject to significant limitations on transfer during the
seven years following vesting.
<PAGE> 7
Item 2:
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Statements in this Form 10-Q concerning the company s future prospects
are forward looking statements under the federal securities laws.
There can be no assurances that future results will be achieved and
actual results could differ materially from forecasts and estimates.
Important factors that could cause actual results to differ materially
are discussed below in the section Operations.
RESULTS OF OPERATIONS
Revenue:
Total revenue for the quarter ended June 30, 1997 increased by 12% over
the prior year's comparable quarter. The increase reflects the
favorable demand for the Company's products coupled with widespread and
enthusiastic acceptance of the Company's enterprise pricing options.
Revenues from client/server products, particularly the Unicenter product
group, now broadened by Unicenter TNG (The Next Generation), the newest
release of the systems management platform increased at a substantially
higher rate than from other platforms. The Company's independent
Business Units ("iBUs"), in particular the Cheyenne Software division
contributed marginally to the revenue increase. International revenue
decreased by 8% for the June 1997 quarter compared to the June 1996
quarter. The decrease is due to strengthening of the US dollar against
most currencies and modest sales in Europe. Maintenance revenues
decreased $10 million, or 5%, primarily due to 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 were 43% for both the June 1997 and June 1996 quarters. Net
research and development expenditures increased $14 million, or 18%,
over the June 1996 quarter. The addition of Cheyenne product
development personnel, continued emphasis on adapting products for the
client/server environment and broadening of the Company's
Internet/Intranet product offerings were largely responsible for the
increase. Commissions and royalties as a percentage of revenue was 5%
for both the June 1997 and 1996 quarters. Depreciation and amortization
expense decreased $25 million in the June 1997 quarter from the June
1996 quarter. The decrease was primarily due to completion of the
amortization associated with the On-Line Software International, Inc.
and Pansophic Systems, Incorporated acquisitions, as well as the
scheduled reduction in the level of amortization associated with The ASK
Group, Inc. and Legent Corporation acquisitions. This decrease was only
partially offset by the additional accelerated purchased software
relating to the Cheyenne Software, Inc. acquisition. In the June 1997
quarter, net interest expense increased by $9 million over the June 1996
quarter as a result of higher debt levels associated with borrowings
used to finance the Cheyenne acquisition.
<PAGE> 8
Item 2: (Continued)
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Operating Margins:
The pre-tax income of $249 million for the June 1997 quarter represents
an increase of 31%, or $59 million, over the June 1996 quarter pre-tax
of $190 million. As a percentage of total revenue, pre-tax income for
the June 1997 quarter was 28%, an increase of four percentage points
over the quarter ending June 1996. The Company's consolidated effective
tax rate was 37.5% for the June 1997 quarter compared with 37% for the
prior year comparable quarter.
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 regional 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; delays in delivery of new
products or features; 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, 1997 decreased by approximately $10 million from
the March 31, 1997 fiscal year end balance. Cash generated from
operations of $177 million for the quarter ended June 30, 1997, up 39%
from the prior year's first quarter, was primarily used for bank debt
repayments of $165 million.
The Company replaced its $1.3 billion five year credit facility and its
$.7 billion 364 day credit facility with a $1.5 billion five year credit
facility and a $1.1 billion 364 day facility, both dated June 30, 1997.
Amounts outstanding under the old agreements were repaid with drawings
under the new facilities. Borrowing costs and facility fees are based
upon the achievement of certain financial ratios. At June 30, 1997,
$1,675 million was outstanding under the Company's credit facilities and
$320 million remains outstanding under the Company's 6.77% Senior Notes.
The cumulative total of purchases under the Company's open market Common
Stock repurchase programs were approximately 78.3 million shares as of
June 30, 1997, including .2 million for the most recently ended quarter.
The total shares available for repurchase at June 30, 1997 is
approximately 30.5 million. These amounts reflect both the August 1995
and the June 1996 three for two stock splits.
The Company's capital resource requirements as of June 30, 1997
consisted of lease obligations for office space, computer equipment,
mortgage or loan obligations and amounts due as a result of product and
company acquisitions. In addition, the Company is proceeding with a
project to purchase land and construct a building in the United Kingdom
for approximately $150 million. 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 ongoing cash
requirements.
<PAGE> 10
PART II. OTHER INFORMATION
Item 6: Exhibits and Reports on Form 8-K
(a) Exhibits.
(1) $1,500,000,000 Amended and Restated Credit
Agreement dated as of June 30, 1997.
(2) $1,100,000,000 Credit Agreement, dated as of
June 30, 1997.
(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, 1997 By:/s/ Sanjay Kumar
---------------------------
Sanjay Kumar, President
and Chief Operating Officer
Dated: July 31, 1997 By:/s/ Peter Schwartz
----------------------------
Peter Schwartz
Sr. Vice President - Finance
(Chief Financial and
Accounting Officer)
COMPUTER ASSOCIATES INTERNATIONAL, INC.
_____________________
$1,500,000,000
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of June 30, 1997
_____________________
CREDIT SUISSE FIRST BOSTON,
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 10
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 13
Section 2.3 Interest on Loans 13
Section 2.4 Payments and Computations 15
Section 2.5 Fees 18
Section 2.6 Increased Costs and Capital Requirements 18
Section 2.7 Taxes 20
Section 2.8 Additional Action in Certain Events 23
Section 2.9 Reduction or Termination of Commitments 23
Section 2.10 Money Market Advances 24
ARTICLE III
Conditions of Commitments 25
Section 3.1 Conditions Precedent to Initial Loans 25
Section 3.2 Conditions Precedent to Each Loan 27
ARTICLE IV
Representations and Warranties 27
Section 4.1 Organization of Credit Parties 27
Section 4.2 Authorization of Credit Documents 28
Section 4.3 Government Approvals 28
Section 4.4 No Conflicts 28
Section 4.5 Enforceability 28
<PAGE>
<CAPTION>
<S> <C>
Section 4.6 Title to Property 28
Section 4.7 Compliance with Law 29
Section 4.8 No Litigation 29
Section 4.9 Subsidiaries 29
Section 4.10 Financial Information 29
Section 4.11 Margin Regulations 29
Section 4.12 ERISA 29
Section 4.13 Investment Company Act 30
Section 4.14 Taxes 30
ARTICLE V
Covenants of Credit Parties 30
Section 5.1 Affirmative Covenants 30
Section 5.2 Negative Covenants 33
ARTICLE VI
Events of Default 36
Section 6.1 Events of Default 36
ARTICLE VII
Relationship of Agent and Banks 38
Section 7.1 Authorization and Action 38
Section 7.2 Agent's Reliance, Etc. 39
Section 7.3 Agent and Affiliates 39
Section 7.4 Bank Credit Decision 40
Section 7.5 Indemnification 40
Section 7.6 Successor Agent 40
ARTICLE VIII
Miscellaneous 41
Section 8.1 Notices 41
Section 8.2 Successors and Assigns 41
Section 8.3 Amendments and Related Matters 41
Section 8.4 Costs and Expenses; Indemnification 42
Section 8.5 Oral Communications 42
Section 8.6 Entire Agreement 43
Section 8.7 Governing Law 43
<PAGE>
<CAPTION>
<S> <C>
Section 8.8 Severability 43
Section 8.9 Counterparts 43
Section 8.10 Confidentiality 43
Section 8.11 Assignments and Participations 44
Section 8.12 Waiver of Trial by Jury 47
Section 8.13 Choice of Forum and Service of Process 47
Section 8.14 Remedies 48
Section 8.15 Right of Set-Off 48
Section 8.16 Effectiveness and Effect of Agreement 48
<PAGE>
SCHEDULES
Schedule 1 Commitment Schedule and Addresses
EXHIBITS
Exhibit A Form of Assignment and Acceptance Agreement
Exhibit B Form of Compliance Certificate
Exhibit C-1 Form of Notice of Borrowing (Drawings)
Exhibit C-2 Form of Notice of Borrowing (Continuations)
Exhibit C-3 Form of Notice of Borrowing (Conversions)
Exhibit D Form of Opinion of General Counsel of Borrower
Exhibit E Form of Opinion of Simpson Thacher & Bartlett
Exhibit F Form of Promissory Note
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 30, 1997,
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 FIRST BOSTON, as administrative agent for the Banks.
The parties hereto agree that the Credit Agreement, dated as of
July 3, 1996 (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 I.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 First Boston in its capacity as
administrative agent for the Banks hereunder or any successor thereto in
such capacity.
<PAGE> 2
"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:
</TABLE>
<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.
<PAGE> 3
"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 day other than a Saturday, Sunday or other
day on which commercial banks in New York City (or, in the case of
matters relating to Eurodollar Loans, on which commercial banks in New
York City or London, England) are authorized or required by law to
close.
"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 First Boston 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 First
Boston 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.
"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.
<PAGE> 4
"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.
"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.
<PAGE> 5
"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 Base Rate" means, for each Interest Period for each
Eurodollar Rate Loan, the rate per annum determined by the Agent at
approximately 11:00 a.m. (London, England time) on the date which is two
Banking Days prior to the beginning of the relevant Interest Period (as
specified in the applicable Notice of Borrowing) by reference to the
"British Bankers' Association Interest Settlement Rates" for a
representative amount of deposits in Dollars (as set forth by any
service selected by the Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the purpose
of displaying such rates) for a period equal to such Interest Period
(rounded, if necessary, upward to the nearest whole multiple of 1/16th
of 1%); provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition,
the "Eurodollar Base Rate" shall be the interest rate per annum
determined by the Agent to be the average (rounded, if necessary, upward
to the nearest whole multiple of 1/16th of 1% per annum, if such average
is not such a multiple) of the rates per annum at which a representative
amount of deposits in Dollars are offered for such relevant Interest
Period to major banks in the London interbank market in London, England
by Credit Suisse First Boston at approximately 11:00 a.m. (London time)
on the date which is two Business Days prior to the beginning of such
Interest Period.
"Eurodollar Rate" means, with respect to each day during each
Interest Period pertaining to a Eurodollar Rate Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
------------------------------------
1.00 - Eurodollar Rate Reserve Percentage
"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>
<PAGE> 6
; 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.
"Fees" has the meaning ascribed thereto in Section 2.5.
"Granting Bank" has the meaning ascribed thereto in Section
8.11(f).
"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
<PAGE> 7
(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.
"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.
<PAGE> 8
"Majority Banks" means:
(a) as of any time before the Termination Date, except during
any period that an Event of Default pursuant to Section 6.1(a) has
occurred and is continuing, Banks holding Commitments which collectively
constitute more than 50% of the total Commitments; and
(b) as of any time on or after the Termination Date, and during
any period that an Event of Default pursuant to Section 6.1(a) has
occurred and is continuing, Banks whose total outstanding Loans exceed
50% of the total outstanding Loans of all Banks.
"Margin Stock" shall have the meaning assigned to such term
pursuant to Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System.
"Material Adverse Effect" means a material adverse effect upon,
or material adverse change in, the consolidated financial position of
the Borrower and its Subsidiaries taken as a whole or the ability of the
Borrower to perform its obligations under this Agreement and the Notes.
"Material Subsidiary" means, at any date, any Subsidiary of the
Borrower which (a) holds any capital stock of Borrower, (b) in the
aggregate with its Subsidiaries, has consolidated revenues for the
period of four consecutive fiscal quarters most recently ended which are
in excess of 1% of the consolidated revenues of the Borrower and its
Subsidiaries taken as a whole for such period or (c) in the aggregate
with its Subsidiaries, has consolidated assets at such date which are
material to the business of the Borrower and its Subsidiaries taken as a
whole.
"Maturity Date" means with respect to each Eurodollar Rate Loan,
the last day of the Interest Period applicable to such Loan.
"Money Market Loan" means a loan by a Bank to the Borrower
pursuant to Section 2.11.
"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
<PAGE> 9
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 First Boston, 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.
"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 Debt Ratable Share" has the meaning specified in Section
2.9(b).
"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.
"SPC" has the meaning ascribed thereto in Section 8.11(f).
"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.
<PAGE> 10
"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 I.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 I.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 I.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 I.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 I.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.
<PAGE> 11
Section I.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 II.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 the
amount equal to (x) such Bank's Commitment then in effect minus (y) the
aggregate principal amount of Money Market Loans made by such Bank to
the Borrower which are then outstanding. 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,
<PAGE> 12
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 any amount of
<PAGE> 13
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 II.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
<PAGE> 14
shall, prepay the outstanding principal amount of any Loan, as
identified by Borrower in such notice, in whole or in part, together
with accrued interest to the date of such prepayment on the principal
amount prepaid, as well as any additional amount owed by Borrower
pursuant to Section 2.3(c), provided that each partial prepayment shall
be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
Section II.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, or the Borrower defaults in
making a borrowing of, conversion into or continuation of Eurodollar
Rate Loans after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, then, in addition to
accrued interest thereon (if any), Borrower shall pay to each Bank
through 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 or default in borrowing) not occurred (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 adequate and fair
means do not exist for Agent to ascertain the relevant Eurodollar Rate,
or (ii) Banks whose Loans will exceed 50% of all Loans, notify Agent
<PAGE> 15
(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 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:
<PAGE> 16
(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 Section 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 Section
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 II.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 (other than Money
Market Loans, as to which payments shall be made pursuant to such
arrangement as the relevant Bank and the Borrower may agree), 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.
<PAGE> 17
(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 (other than for times when the Base Rate is determined by reference
to the Federal Funds Rate) and of the facility fee shall be made by
Agent on the basis of a year of 365 or 366 days, as the case may be, and
(iii) all computations in every case shall be for the actual number of
days (including the first day but excluding the last day) occurring in
the period for which such interest or Fees are payable. Each
determination by Agent of an interest rate or Fee hereunder shall be
conclusive and binding for all purposes, absent manifest error. Any
change in (x) the Base Rate due to a change in the base lending rate or
the Federal Funds Rate shall be effective as of the opening of business
on the effective day of such change in the base lending rate or the
Federal Funds Rate, respectively, (y) the interest rate on a Loan
resulting from a change in the Base Rate or the Eurodollar Rate Reserve
Percentage shall become effective as of the opening of business on the
day on which such change becomes effective and (z) the interest rate on
a Loan resulting from a change in the Eurodollar Rate Margin or in the
Applicable Facility Fee Rate shall become effective on each Adjustment
Date. For purposes hereof, the term "Adjustment Date" shall mean (i) if
the Compliance Certificate required to be delivered for any fiscal
period is delivered on or prior to the due date specified in Section
5.1(h)(i) or (ii), as the case may be, the date upon which Agent
receives such Compliance Certificate and (ii) if the Compliance
Certificate required to be delivered for any fiscal period is not
delivered on or prior to the due date specified in Section 5.1(h)(i) or
(ii), as the case may be, each of (A) the date upon which such
Compliance Certificate was due and (B) the date upon which it actually
is delivered to Agent.
(c) Agent's Reliance on Borrower Payments. Unless Agent shall
have received notice from Borrower prior to the date on which any
payment is due to a Bank hereunder that Borrower will not make such
payment in full, Agent may assume that Borrower has made such payment in
full to Agent on such date and Agent may, in reliance upon such
assumption, cause to be distributed to Banks on such due date an amount
equal to the amount then due to such Banks. If and to the extent
Borrower shall not have so made such payment in full to Agent, each Bank
shall repay to Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such
amount to Agent, at the Federal Funds Rate.
(d) Application of Payments. Amounts received by Agent for
application to the principal of any Loans shall be applied (i) if
received on or before the Termination Date (if not specified by Borrower
or if received after the occurrence and continuance of an Event of
Default) first, to the ratable payment of the outstanding Loans that
constitute Base Rate Loans, second, to the ratable payment of the
outstanding Loans that constitute Eurodollar Rate Loans and (ii) if
received after the Termination Date to the ratable payment of all the
outstanding Loans.
(e) Payments on Non-Banking Days. Whenever any payment
hereunder shall be stated to be due on a day other than a Banking Day,
such payment shall be made on the next succeeding Banking Day (except as
otherwise provided with respect to the determination of Interest
<PAGE> 18
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
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.
<PAGE> 19
(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 II.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 Confidential Engagement Letter from Credit
Suisse First Boston to Borrower, dated as of June 4, 1997; and
(ii) to each Bank, a facility fee equal to Applicable Facility
Fee Rate times the amount of the Commitment of such Bank on each date of
calculation; such facility fee shall commence to accrue on the Effective
Date, and continue until the Termination Date; the accrued portion of
such fee is payable in arrears on the last Banking Day of each March,
June, September, and December of each year, commencing on September 30,
1997 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 II.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
<PAGE> 20
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 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.
<PAGE> 21
(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 II.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
<PAGE> 22
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 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,
<PAGE> 23
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 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.
<PAGE> 24
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 II.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 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 II.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
<PAGE> 25
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) 43% 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
or 15% 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 II.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
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
<PAGE> 26
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.
Section II.11 Money Market Advances. (a) The Borrower
(directly or through an agent or representative) may at any time and
from time to time request any one or more of the Banks to make offers to
make Money Market Loans to the Borrower on any Business Day during the
period from the date hereof until the Termination Date in the manner set
forth below. Each such Bank may, but shall have no obligation to, make
such offer, and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section 2.11.
(b) In the event that the Borrower desires to borrow a Money
Market Loan from a Bank, the Borrower (directly or through an agent or
representative) shall request that such Bank provide a quotation to the
Borrower of the terms under which such Bank would be willing to provide
such Money Market Loan.
(c) In the event that the Borrower elects to accept a Bank's
offer for a Money Market Loan, the Borrower (directly or through an
agent or representative) shall provide telephonic notice to such Bank of
its election by no later than 30 minutes after the time that such offer
was received by the Borrower. The failure of the Borrower to provide
such notice of acceptance in a timely manner shall be deemed to
constitute a rejection of the offer of such Bank. Any Money Market Loan
to be made by a Bank pursuant to this Section 2.11 shall be made by the
Bank crediting an account specified by the Borrower with the amount of
such advance in same day funds promptly upon receipt of the Borrower's
timely acceptance of the offer of such Bank with respect to such Money
Market Loan.
(d) The Borrower agrees to forward to the Bank with respect to a
Money Market Loan written evidence of such Money Market Loan by
providing, on the date upon which such Money Market Loan is made,
documents, in form and substance reasonably acceptable to both the
Borrower and such Bank, executed and delivered by a duly authorized
officer of the Borrower, confirming the amount so borrowed, the rate of
interest applicable thereto and the maturity thereof (with such Money
Market Loan being due and payable on such date of maturity); provided
that the failure of the Borrower to provide such documents shall not
impair the obligation of the Borrower to repay any Money Market Loan
borrowed by it. All borrowings pursuant to this Section 2.11 shall bear
interest at the rate (or upon the basis, as the case may be) quoted to
the Borrower by the relevant Bank in its quotation described in clause
(b) above, regardless of any change in the interest rate between the
time of quoting and the time of borrowing.
<PAGE> 27
(e) Upon the occurrence and during the continuance of an Event
of Default, each Bank that has Money Market Loans outstanding may
declare its Money Market Loans (with any applicable interest thereon) to
be immediately due and payable without the consent of, or notice to, any
other Bank; provided that if such event is an Event of Default specified
in Section 6.1(f) or (g) with respect to the Borrower, such Bank's Money
Market Loans (and any applicable interest thereon) shall automatically
become immediately due and payable.
(f) Each Bank that shall make a Money Market Loan pursuant to
this Section 2.11 shall promptly notify the Agent of the amount and term
of such Money Market Loan.
(g) In the event that the availability under any Bank's
Commitment has been reduced on account of Money Market Loans made by it
to a level that is insufficient to permit such Bank to lend its ratable
share of any Loan requested to be made hereunder, the Borrower shall
repay such Bank's outstanding Money Market Loans simultaneously with or
prior to the borrowing of such Loans (which repayment may be financed
with proceeds of such Loans and shall be subject to the provisions of
Section 2.3(c)) by the amount necessary to cause its unused Commitment
(before giving effect to the borrowing of such Loan, but after giving
effect to the application of proceeds thereof) to be at least equal to
its ratable share of any such Loan.
(h) The Borrower and any Bank may at any time and from time to
time enter into written agreements that provide for procedures for
soliciting and extending Money Market Loans that differ from those
specified in this Section 2.11 (other than the provisions of subsections
(f), (g) and (i) hereof, which shall apply to each Money Market Loan).
As between the Borrower and such Bank such agreements shall supersede
the provisions of such paragraphs to the extent specified therein.
(i) Notwithstanding anything to the contrary contained herein,
Money Market Loans shall be deemed not to be extensions of credit under
this Agreement or under the Notes and the rights and obligations of the
Borrower in respect of Money Market Loans shall be deemed not to be
rights and obligations of the Borrower hereunder or under the Notes;
provided that Money Market Loans shall be considered to be extensions of
credit under this Agreement for purposes of calculating the availability
under any Bank's Commitment.
ARTICLE III
Conditions of Commitments
-------------------------
Section III.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:
<PAGE> 28
(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
recent certificate of the Secretary of State of Delaware listing the
Borrower's certificate of incorporation and each amendment thereto on
file in his office and certifying that (i) such amendments are the only
amendments to each such certificate of incorporation on file in his
office, (ii) Borrower has paid all franchise taxes to the date of such
Certificate and (iii) Borrower is duly incorporated and in good standing
under the laws of such jurisdiction;
(c) Certificate of Qualification. Agent shall have received a
certificate or equivalent document of the Secretary of State of the
State of New York certifying that Borrower has duly qualified to do
business in such jurisdiction as a foreign corporation and is in good
standing under such qualification;
(d) By-Laws and Resolutions. Agent shall have received copies
of (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.
<PAGE> 29
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 III.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, 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):
(a) 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
(b) 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
(c) After giving effect to (i) such Loan together with all other
Loans to be contemporaneously made therewith and (ii) the repayment of
any Loans and Money Market Loans which are to be contemporaneously
repaid at the time such Loan is made, such Loan will not result in
either (x) the then outstanding total amount of all Loans exceeding the
then total amount of all Commitments or (y) the sum of the Loans and
Money Market Loans of any Lender which are then outstanding exceeding
the amount of the Commitment of such Lender then in effect.
<PAGE> 30
ARTICLE IV
Representations and Warranties
------------------------------
Borrower represents and warrants as follows:
Section IV.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 IV.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 IV.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 IV.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
reasonably be expected to have a Material Adverse Effect or (b) be in
<PAGE> 31
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 IV.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 IV.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 IV.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 IV.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 IV.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 IV.10 Financial Information. The financial statements
dated December 31, 1996 and March 31, 1997, 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, 1996, (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,
<PAGE> 32
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 IV.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 IV.12 ERISA. There are no Plans (other than as
permitted by Section 5.2(h)) or Multiemployer Plans.
Section IV.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 IV.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.
<PAGE> 33
ARTICLE V
Covenants of Credit Parties
---------------------------
Section V.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 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
<PAGE> 34
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.
(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
<PAGE> 35
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 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
<PAGE> 36
(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 V.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
<PAGE> 37
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
$250,000,000 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.
<PAGE> 38
(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 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
<PAGE> 39
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 VI.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
<PAGE> 40
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
(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
<PAGE> 41
(whether or not exercised) to elect a majority of the Borrower's
directors, except for any Person that held such interest or had such
power (as the case may be) continuously from a date which was 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 VII.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),
<PAGE> 42
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 VII.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 VII.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
<PAGE> 43
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 VII.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 VII.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 VII.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
<PAGE> 44
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 VIII.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 VIII.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 (a) 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 VIII.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;
<PAGE> 45
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 VIII.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 fees and expenses of in-house or outside
counsel), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) and restructuring 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
<PAGE> 46
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 VIII.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 VIII.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 VIII.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 VIII.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 VIII.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.
<PAGE> 47
Section VIII.10 Confidentiality. Unless otherwise required by
any Directive, Agent and each Bank agrees not to voluntarily disclose to
unrelated third parties information clearly marked as "Confidential"
provided to it pursuant to this Agreement or the other Credit Documents,
except that there shall be no obligation of confidentiality in respect
of (i) any information which may be generally available to the public or
becomes available to the public through no fault of Agent or such Bank;
(ii) communications with actual or prospective participants, or
Assignees which undertake in writing to be bound by this Section 8.10;
(iii) Agent's or any Bank's directors, officers, employees and other
representatives and agents, and directors, officers, employees and other
representatives and agents of its Affiliates, legal counsel, auditors,
internal bank examiners and regulatory authorities having jurisdiction
over such Bank, and to the extent necessary or advisable in its judgment
other experts or consultants retained by it, if in the case of a person
or entity other than a director, officer, employee, legal counsel,
auditor or internal bank examiner, Agent or such Bank obtains from such
person or entity an undertaking in writing as to confidentiality
substantially identical to this undertaking and (iv) information which
is compelled to be disclosed pursuant to legal process or court order
(provided that, to the extent practicable and permitted by applicable
Laws, 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 in
which the Borrower is an opposing party (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).
<PAGE> 48
Section VIII.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
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,
<PAGE> 49
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.
(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
<PAGE> 50
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) Funding by Special Purpose Funding Vehicles. Anything
herein to the contrary notwithstanding, any Bank (a "Granting Bank") may
grant to a special purpose funding vehicle ("SPC") of such Granting
Bank, identified as such in writing from time to time by the Granting
Bank to the Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Bank otherwise
would be obligated to make to the Borrower pursuant to Section 2.1,
provided that (i) nothing herein shall constitute a commitment by any
SPC to make any Loan and (ii) if an SPC elects not to exercise such
option to make a Loan or otherwise fails to provide all or any part
thereof, the Granting Bank shall remain obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall be deemed to constitute a utilization of the Commitment of the
Granting Bank to the same extent, and as if, such Loan were made by the
Granting Bank. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the related
Granting Bank). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding senior indebtedness of any SPC,
it will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the
laws of the United States or any State thereof with respect to
obligations arising hereunder or under any other Credit Document. In
addition, notwithstanding anything to the contrary contained in Section
8.10 or this Section 8.11, any SPC may (i) with notice to, but without
the prior written consent of, the Borrower or the Agent and without
paying any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Bank and (ii) disclose (subject
to an agreement by the recipient to maintain the confidentiality
thereof) any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC.
<PAGE> 51
(g) 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 VIII.12 Waiver of Trial by Jury. BORROWER, BANKS, AND
AGENT, TO THE MAXIMUM EXTENT THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF
ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT,
THE OTHER CREDIT DOCUMENTS, OR IN ANY WAY CONNECTED WITH, OR RELATED TO,
OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO
THIS AGREEMENT, OR THE OTHER CREDIT DOCUMENTS, THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF OR THEREOF, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO,
BORROWER, BANKS AND AGENT HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND,
ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 8.12 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER
OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
Section VIII.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.
<PAGE> 52
(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 VIII.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 VIII.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 VIII.16 Effectiveness and Effect of Agreement. This
Agreement shall become effective (and the date this Agreement becomes so
effective is the "Effective Date") on the date (which date shall occur
on or before July 10, 1997) which is three Banking Days following the
date upon which Agent shall have received counterparts of this
Agreement, duly executed by Borrower and the Banks listed on the
signature pages hereof; provided that any Notice of Borrowing delivered
by the Borrower during the period between the receipt of the
<PAGE> 53
Borrower's executed counterpart hereof and the Effective Date (if any)
shall have the same force and effect, and shall be subject to the
provisions of Section 2.3(c), as if the Effective Date had occurred
prior to the delivery thereof.
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
Title: 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 FIRST BOSTON, as
Administrative Agent
By /s/ Ira Lubinsky
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Co-
Agent and as a Bank
By /s/ Thomas G. Muoio
Title: Vice President
By /s/ Robert B. Potter
Title: Vice President
<PAGE> 54
THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY, as a Co-Agent and as a Bank
By /s/ Stephen Lockhart
Title: Vice President
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), as a Co-Agent
and as a Bank
By /s/ Robert Addea
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD., NEW
YORK BRANCH, as a Co-Agent and as a
Bank
By /s/ Thomas M. Fennessey
Title: Assistant Vice President
FLEET BANK, N.A., as a Co-Agent and as
a Bank
By /s/ Magda Hayden
Title: Vice President
<PAGE> 55
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH, as a Co-Agent and as
a Bank
By /s/ J. Kenneth Biegen
Title: Senior Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as a Co-Agent and as a Bank
By /s/ David Fox
Title: Vice President
MELLON BANK N.A., as a Co-Agent and as
a Bank
By /s/ Peyton R. Latimer
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A., as a Co-
Agent and as a Bank
By /s/ Yousuf Omar
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as a
Co-Agent and as a Bank
By /s/ Laura Vassamiller
Title: Vice President
ROYAL BANK OF CANADA, as a Co-Agent
and as a Bank
By /s/ Stephen S. Hughes
Title: Senior Manager
THE SANWA BANK, LIMITED, NEW YORK
BRANCH, as a Co-Agent and as a Bank
By /s/ Dominic J. Sorresso
Title: Vice President
<PAGE> 56
ABN AMRO BANK N.V., NEW YORK BRANCH
By /s/ Frances O'R Logan
Title: Group Vice President
By /s/ Thomas T. Rogers
Title: Assistant Vice President
BANCA COMMERCIALE ITALIANA (NEW YORK
BRANCH)
By /s/ Charles Dougherty
Title: Vice President
By /s/ Karen Purelis
Title: Vice President
BANCA POPOLARE DI MILANO, NEW YORK
BRANCH
By /s/ Anthony Franco
Title: Executive Vice President and
General Manager
By /s/ Esperanza Quintero
Title: Vice President, Capital Markets
BANK AUSTRIA AG
By /s/ J. Anthony Seay
Title: Vice President
By /s/ George M. Williams III
Title: Assistant Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By /s/ Roger J. Fleischman
Title: Vice President
<PAGE> 57
BANK BRUSSELS LAMBERT, New York Branch
By /s/ John Kippax
Title: Vice President and Manager
By /s/ Malika Kambhampati
Title: Vice President and Manager
BANK OF MONTREAL
By /s/ Thomas Moore
Title: Director
By /s/ Thomas H. Peer
Title: Director
BANK OF TOKYO-MITSIBISHI TRUST COMPANY
By /s/ G. Stewart
Title: Senior Vice President and
Manager
BANQUE NATIONALE DE PARIS
By /s/ Richard L. Sted
Title: Senior Vice President
By /s/ Robert S. Taylor, Jr.
Title: Senior Vice President
BANQUE PARIBAS
By /s/ John J. McCormick, III
Title: Vice President
By /s/ Robert G. Carino
Title: Vice President
BAYERISCHE VEREINSBANK AG, NEW YORK
BRANCH
By /s/ Marianne Weinzinger
Title: Vice President
By /s/ Pamela Gillons
Title: Assistant Treasurer
<PAGE> 58
COMMERZBANK AG, New York and/or Grand
Cayman Branches
By /s/ Subash R. Viswanthan
Title: Vice President
By /s/ Peter T. Doyle
Title: Assistant Treasurer
CORESTATES BANK, N.A.
By /s/ Elizabeth Chow
Title: Corporate Banking Officer
DEUTSCHE BANK AG, New York and/or
Cayman Islands Branches
By /s/ Ralf Hoffman
Title: Vice President
By /s/ Jean M. Hannigan
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By /s/ Toshiaki Yakura
Title: Vice President and Group Head,
US Corporate Finance
KEY BANK NATIONAL ASSOCIATION
By /s/ Karen Lee
Title: Vice President
THE MITSUI TRUST AND BANKING COMPANY,
LIMITED
By /s/ Margaret Holloway
Title: Vice President and Manager
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By /s/ Susan R. Julien
Title: Vice President
<PAGE> 59
STANDARD CHARTERED BANK PLC
By /s/ Peter Dodds
Title: Vice President
By /s/ Kristina McDavid
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By /s/ Gordon Saint-Denis
Title: Vice President
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By /s/ John C. Kissinger
Title: Joint General Manager
SUNTRUST BANK, ATLANTA
By /s/ May M. Smith
Title: Banking Officer
By /s/ Craig W. Farnsworth
Title: Vice President and Manager
THE TOKAI BANK, LIMITED
By /s/ Kaoru Oda
Title: Assistant General Manager
THE TOYO TRUST & BANKING CO., LTD.
By /s/ Takashi Mikumo
Title: Vice President
UNION BANK OF SWITZERLAND, New York
Branch
By /s/ Eduardo Salazar
Title: Vice President
<PAGE> 60
By /s/ Stephen A. Cayer
Title: Assistant Vice President
WACHOVIA BANK, N.A.
By /s/ William C. Christie
Title: Senior Vice President
<PAGE> 61
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 Amended and Restated Credit Agreement,
dated as of June 30, 1997 (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 First Boston, 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
<PAGE>
the Credit Agreement or any other Credit Document or any other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of Borrower or the performance or observance by
Borrower of any of its obligations under the Credit Documents or any
other instrument or document furnished pursuant thereto.
4. Assignee (i) acknowledges that, other than as expressly provided
in this Agreement, Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
any other Credit Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other Credit Document or any other instrument or
document furnished pursuant thereto; (ii) acknowledges that Assignor
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or the performance or
observance by Borrower of any of its obligations under 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,
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.
<PAGE>
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 FIRST BOSTON, 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 Amended and Restated Credit
Agreement, dated as of June 30, 1997 (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 First Boston, 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.
<PAGE>
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.
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 First Boston, as
administrative agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 2.1(b) of
that certain Amended and Restated Credit Agreement, dated as of June 30,
1997 (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
First Boston, as administrative agent (in such capacity, the "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 First Boston, as
administrative agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 2.1(h) of
that certain Amended and Restated Credit Agreement, dated as of June 30,
1997 (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
First Boston, as administrative agent (in such capacity, the "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 First Boston, as
administrative agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 2.1(g) of
that certain Amended and Restated Credit Agreement, dated as of June 30,
1997 (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
First Boston, as administrative agent (in such capacity, the "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
<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>
EXHIBIT E
[LETTERHEAD OF SIMPSON THACHER & BARTLETT]
July [__], 1997
Credit Suisse First Boston, as Administrative Agent
11 Madison Avenue
New York, New York 10010
- 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 First Boston, 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 June 30, 1997 (the "Credit Agreement"),
among Computer Associates International, Inc., a Delaware corporation
(the "Borrower"), the banks and other financial institutions parties
thereto (the "Banks") 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 us 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.
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 execution, delivery and performance by the Borrower of the Credit
Agreement has been duly authorized by all necessary corporate action on
the part of the Borrower, does not contravene its articles or
<PAGE>
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 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 its 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 an implied covenant of good faith and fair
dealing.
(b) We express no opinion as to subsection 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
setoff 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.
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,
<PAGE>
EXHIBIT F
FORM OF
PROMISSORY NOTE
---------------
$ New York, New York
June 30, 1997
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 First Boston, located at 11 Madison Avenue, New
York, New York 10010, 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
Amended and Restated 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 First Boston, 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.
_____________________
$1,100,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of June 30, 1997
_____________________
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
----
ARTICLE I
<C> <C>
Definitions and Interpretation 1
Section 1.1 Defined Terms 1
Section 1.2 Computation of Time Periods 9
Section 1.3 Accounting Terms 9
Section 1.4 No Presumption Against Any Party 10
Section 1.5 Use of Certain Terms 10
Section 1.6 Headings and References 10
Section 1.7 Independence of Provisions 10
ARTICLE II
Amounts and Terms of the Loans 10
Section 2.1 The Loans 10
Section 2.2 Repayment 13
Section 2.3 Interest on Loans 13
Section 2.4 Payments and Computations 15
Section 2.5 Fees 18
Section 2.6 Increased Costs and Capital Requirements 18
Section 2.7 Taxes 20
Section 2.8 Additional Action in Certain Events 23
Section 2.9 Reduction or Termination of Commitments 23
Section 2.10 Extensions of Termination Date for
Commitments 24
Section 2.11 Money Market Advances 25
ARTICLE III
Conditions of Commitments 26
Section 3.1 Conditions Precedent to Initial Loans 26
Section 3.2 Conditions Precedent to Each Loan 27
ARTICLE IV
Representations and Warranties 28
Section 4.1 Organization of Credit Parties 28
Section 4.2 Authorization of Credit Documents 28
Section 4.3 Government Approvals 28
Section 4.4 No Conflicts 29
<PAGE>
<CAPTION>
<S> <C>
Section 4.5 Enforceability 29
Section 4.6 Title to Property 29
Section 4.7 Compliance with Law 29
Section 4.8 No Litigation 29
Section 4.9 Subsidiaries 30
Section 4.10 Financial Information 30
Section 4.11 Margin Regulations 30
Section 4.12 ERISA 30
Section 4.13 Investment Company Act 30
Section 4.14 Taxes 30
ARTICLE V
Covenants of Credit Parties 31
Section 5.1 Affirmative Covenants 31
Section 5.2 Negative Covenants 34
ARTICLE VI
Events of Default 37
Section 6.1 Events of Default 37
ARTICLE VII
Relationship of Agent and Banks 39
Section 7.1 Authorization and Action 39
Section 7.2 Agent's Reliance, Etc. 39
Section 7.3 Agent and Affiliates 40
Section 7.4 Bank Credit Decision 40
Section 7.5 Indemnification 40
Section 7.6 Successor Agent 41
ARTICLE VIII
Miscellaneous 41
Section 8.1 Notices 41
Section 8.2 Successors and Assigns 42
Section 8.3 Amendments and Related Matters 42
Section 8.4 Costs and Expenses; Indemnification 42
Section 8.5 Oral Communications 43
Section 8.6 Entire Agreement 43
<PAGE>
<CAPTION>
<S> <C>
Section 8.7 Governing Law 43
Section 8.8 Severability 44
Section 8.9 Counterparts 44
Section 8.10 Confidentiality 44
Section 8.11 Assignments and Participations 44
Section 8.12 Waiver of Trial by Jury 47
Section 8.13 Choice of Forum and Service of Process 48
Section 8.14 Remedies 48
Section 8.15 Right of Set-Off 49
Section 8.16 Effectiveness and Effect of Agreement 49
</TABLE>
<PAGE>
SCHEDULES
Schedule 1 Commitment Schedule and Addresses
EXHIBITS
Exhibit A Form of Assignment and Acceptance Agreement
Exhibit B Form of Compliance Certificate
Exhibit C-1 Form of Notice of Borrowing (Drawings)
Exhibit C-2 Form of Notice of Borrowing (Continuations)
Exhibit C-3 Form of Notice of Borrowing (Conversions)
Exhibit D Form of Opinion of General Counsel of Borrower
Exhibit E Form of Opinion of Simpson Thacher & Bartlett
Exhibit F Form of Promissory Note
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
--------------------------------------------
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
June 30, 1997, 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 FIRST BOSTON, as administrative agent for the Banks.
The parties hereto agree that the Amended and Restated Credit
Agreement, dated as of July 3, 1996 (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 I.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.
<PAGE> 2
"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 First Boston 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:
<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
or equal to 1.75 to 1.0 .150%
Less than 1.75 to 1.0, but greater than
or equal to 0.50 to 1.0 .120%
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.
<PAGE> 3
"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 day other than a Saturday, Sunday or other
day on which commercial banks in New York City (or, in the case of
matters relating to Eurodollar Loans, on which commercial banks in New
York City or London, England) are authorized or required by law to
close.
"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 First Boston 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 First
Boston 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.
"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
<PAGE> 4
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.
"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 Base Rate" means, for each Interest Period for each
Eurodollar Rate Loan, the rate per annum determined by the Agent at
approximately 11:00 a.m. (London, England time) on the date which is two
Banking Days prior to the beginning of the relevant Interest Period (as
<PAGE> 5
specified in the applicable Notice of Borrowing) by reference to the
"British Bankers' Association Interest Settlement Rates" for a
representative amount of deposits in Dollars (as set forth by any
service selected by the Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the purpose
of displaying such rates) for a period equal to such Interest Period
(rounded, if necessary, upward to the nearest whole multiple of 1/16th
of 1%); provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition,
the "Eurodollar Base Rate" shall be the interest rate per annum
determined by the Agent to be the average (rounded, if necessary, upward
to the nearest whole multiple of 1/16th of 1% per annum, if such average
is not such a multiple) of the rates per annum at which a representative
amount of deposits in Dollars are offered for such relevant Interest
Period to major banks in the London interbank market in London, England
by Credit Suisse First Boston at approximately 11:00 a.m. (London time)
on the date which is two Business Days prior to the beginning of such
Interest Period.
"Eurodollar Rate" means, with respect to each day during each
Interest Period pertaining to a Eurodollar Rate Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
-----------------------------------------
1.00 - Eurodollar Rate Reserve Percentage
"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 or equal to 1.75 to 1.0 .250%
Less than 1.75 to 1.0, but greater
than or equal to 0.50 to 1.0 .205%
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%.
<PAGE> 6
"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.
"Fees" has the meaning ascribed thereto in Section 2.5.
"Granting Bank" has the meaning ascribed thereto in Section
8.11(f).
"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;
<PAGE> 7
(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.
"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
<PAGE> 8
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.
"Money Market Loan" means a loan by a Bank to the Borrower
pursuant to Section 2.10.
"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 First Boston, 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.
"Reportable Event" has the meaning assigned to that term in Title
IV of ERISA.
<PAGE> 9
"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 Debt Ratable Share" has the meaning specified in Section
2.9(b).
"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.
"SPC" has the meaning ascribed thereto in Section 8.11(f).
"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 10, 2002 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 I.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 I.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 I.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
<PAGE> 10
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 I.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 I.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 I.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 II.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 the
amount equal to (x) such Bank's Commitment then in effect minus (y) the
aggregate principal amount of Money Market Loans made by such Bank to
the Borrower which are then outstanding. 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.
<PAGE> 11
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.
(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
<PAGE> 12
prior to making such Loan in the case of any Eurodollar Rate Loan. With
respect to any Eurodollar Rate Loan, such notice shall also provide the
Interest Period.
(g) Conversion Options. Subject to the provisions of Section
2.1(i), Borrower may elect from time to time to convert any amount of
Eurodollar Rate Loans to Base Rate Loans by delivering a Notice of
Borrowing (substantially in the form of Exhibit C-3) to Agent prior to
12:00 Noon, New York City time, at least one Banking Day prior to the
requested date of conversion. Subject to the provisions of Section
2.1(i), Borrower may elect from time to time to convert any amount of
Base Rate Loans to Eurodollar Rate Loans by delivering a Notice of
Borrowing (substantially in the form of Exhibit C-3) to Agent prior to
12:00 Noon, New York City time, at least three Banking Days' prior to
the requested date of conversion. Any such Notice of Borrowing with
respect to a conversion to Eurodollar 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 II.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
<PAGE> 13
shall, prepay the outstanding principal amount of any Loan, as
identified by Borrower in such notice, in whole or in part, together
with accrued interest to the date of such prepayment on the principal
amount prepaid, as well as any additional amount owed by Borrower
pursuant to Section 2.3(c), provided that each partial prepayment shall
be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
Section II.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, or the Borrower defaults in
making a borrowing of, conversion into or continuation of Eurodollar
Rate Loans after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, then, in addition to
accrued interest thereon (if any), Borrower shall pay to each Bank,
through 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 or default in borrowing) not occurred (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 adequate and fair
means do not exist for Agent to ascertain 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
<PAGE> 14
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 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 Section 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 Section
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 II.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 (other than Money
Market Loans, as to which payments shall be made pursuant to such
arrangement as the relevant Bank and the Borrower may agree), 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 (other than for times when the Base Rate is determined by reference
to the Federal Funds 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
<PAGE> 16
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 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
<PAGE> 17
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 II.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 Confidential Engagement Letter from Credit
Suisse First Boston to Borrower, dated as of June 4, 1997; and
(ii) to each Bank, a facility fee equal to Applicable Facility
Fee Rate times the amount of the Commitment of such Bank on each date of
calculation; such facility fee shall commence to accrue on the Effective
Date, and continue until the Termination Date; the accrued portion of
such fee is payable in arrears on the last Banking Day of each March,
June, September, and December of each year, commencing on September 30,
1997 and continuing until the Termination Date, and on the Termination
Date.
<PAGE> 18
(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 II.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 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
<PAGE> 19
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 II.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).
<PAGE> 20
(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 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)
<PAGE> 21
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 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
<PAGE> 22
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 II.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 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.
<PAGE> 23
Section II.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) 57% 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
or 15% 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 II.10 Money Market Advances. (a) The Borrower
(directly or through an agent or representative) may at any time and
from time to time request any one or more of the Banks to make offers to
make Money Market Loans to the Borrower on any Business Day during the
period from the date hereof until the Termination Date in the manner set
forth below. Each such Bank may, but shall have no obligation to, make
such offer, and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section 2.10.
(b) In the event that the Borrower desires to borrow a Money
Market Loan from a Bank, the Borrower (directly or through an agent or
representative) shall request that such Bank provide a quotation to the
Borrower of the terms under which such Bank would be willing to provide
such Money Market Loan.
(c) In the event that the Borrower elects to accept a Bank's
offer for a Money Market Loan, the Borrower (directly or through an
agent or representative) shall provide telephonic notice to such Bank of
its election by no later than 30 minutes after the time that such offer
was received by the Borrower. The failure of the Borrower to provide
such notice of acceptance in a timely manner shall be deemed to
constitute a rejection of the offer of such Bank. Any Money Market Loan
to be made by a Bank pursuant to this Section 2.10 shall be made by the
Bank crediting an account specified by the Borrower with the amount of
such advance in same day funds promptly upon receipt of the Borrower's
timely acceptance of the offer of such Bank with respect to such Money
Market Loan.
(d) The Borrower agrees to forward to the Bank with respect to a
Money Market Loan written evidence of such Money Market Loan by
providing, on the date upon which such Money Market Loan is made,
<PAGE> 24
documents, in form and substance reasonably acceptable to both the
Borrower and such Bank, executed and delivered by a duly authorized
officer of the Borrower, confirming the amount so borrowed, the rate of
interest applicable thereto and the maturity thereof (with such Money
Market Loan being due and payable on such date of maturity); provided
that the failure of the Borrower to provide such documents shall not
impair the obligation of the Borrower to repay any Money Market Loan
borrowed by it. All borrowings pursuant to this Section 2.10 shall bear
interest at the rate (or upon the basis, as the case may be) quoted to
the Borrower by the relevant Bank in its quotation described in clause
(b) above, regardless of any change in the interest rate between the
time of quoting and the time of borrowing.
(e) Upon the occurrence and during the continuance of an Event of
Default, each Bank that has Money Market Loans outstanding may declare
its Money Market Loans (with any applicable interest thereon) to be
immediately due and payable without the consent of, or notice to, any
other Bank; provided that if such event is an Event of Default specified
in Section 6.1(f) or (g) with respect to the Borrower, such Bank's Money
Market Loans (and any applicable interest thereon) shall automatically
become immediately due and payable.
(f) Each Bank that shall make a Money Market Loan pursuant to
this Section 2.10 shall promptly notify the Agent of the amount and term
of such Money Market Loan.
(g) In the event that the availability under any Bank's
Commitment has been reduced on account of Money Market Loans made by it
to a level that is insufficient to permit such Bank to lend its ratable
share of any Loan requested to be made hereunder, the Borrower shall
repay such Bank's outstanding Money Market Loans simultaneously with or
prior to the borrowing of such Loans (which repayment may be financed
with proceeds of such Loans and shall be subject to the provisions of
Section 2.3(c)) by the amount necessary to cause its unused Commitment
(before giving effect to the borrowing of such Loan, but after giving
effect to the application of proceeds thereof) to be at least equal to
its ratable share of any such Loan.
(h) The Borrower and any Bank may at any time and from time to
time enter into written agreements that provide for procedures for
soliciting and extending Money Market Loans that differ from those
specified in this Section 2.10 (other than the provisions of subsections
(f), (g) and (i) hereof, which shall apply to each Money Market Loan).
As between the Borrower and such Bank such agreements shall supersede
the provisions of such paragraphs to the extent specified therein.
(i) Notwithstanding anything to the contrary contained herein,
Money Market Loans shall be deemed not to be extensions of credit under
this Agreement or under the Notes and the rights and obligations of the
Borrower in respect of Money Market Loans shall be deemed not to be
rights and obligations of the Borrower hereunder or under the Notes;
provided that Money Market Loans shall be considered to be extensions of
credit under this Agreement for purposes of calculating the availability
under any Bank's Commitment.
<PAGE> 25
ARTICLE III
Conditions of Commitments
-------------------------
Section III.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
recent certificate of the Secretary of State of Delaware listing the
Borrower's certificate of incorporation and each amendment thereto on
file in his office and certifying that (i) such amendments are the only
amendments to each such certificate of incorporation on file in his
office, (ii) Borrower has paid all franchise taxes to the date of such
Certificate and (iii) Borrower is duly incorporated and in good standing
under the laws of such jurisdiction;
(c) Certificate of Qualification. Agent shall have received a
certificate or equivalent document of the Secretary of State of the
State of New York certifying that Borrower has duly qualified to do
business in such jurisdiction as a foreign corporation and is in good
standing under such qualification;
(d) By-Laws and Resolutions. Agent shall have received copies
of (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.
<PAGE> 26
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 III.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, 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):
(a) 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
(b) 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
(c) After giving effect to (i) such Loan together with all other
Loans to be contemporaneously made therewith and (ii) the repayment of
any Loans and Money Market Loans which are to be contemporaneously
repaid at the time such Loan is made, such Loan will not result in
either (x) the then outstanding total amount of all Loans exceeding the
then total amount of all Commitments or (y) the sum of the Loans and
Money Market Loans of any Lender which are then outstanding exceeding
the amount of the Commitment of such Lender then in effect.
ARTICLE IV
Representations and Warranties
------------------------------
Borrower represents and warrants as follows:
Section IV.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 IV.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 IV.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 IV.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
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 IV.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 IV.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 IV.7 Compliance with Law. Borrower and each Material
Subsidiary is in compliance with all applicable Directives (including,
<PAGE> 28
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 IV.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 IV.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 IV.10 Financial Information. The financial statements
dated December 31, 1996 and March 31, 1997, 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, 1996, (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 IV.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 IV.12 ERISA. There are no Plans (other than as
permitted by Section 5.2(h)) or Multiemployer Plans.
Section IV.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.
<PAGE> 29
Section IV.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 V.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 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
<PAGE> 30
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 Corporation to terminate any Plan or to have a
trustee appointed to administer any Plan;
<PAGE> 32
(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 V.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
<PAGE> 33
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
$250,000,000 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)
<PAGE> 34
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 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'
<PAGE> 35
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 VI.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 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
<PAGE> 36
(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;
<PAGE> 37
(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 held such interest or had such
power (as the case may be) continuously from a date which was 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 VII.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
<PAGE> 38
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 VII.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 VII.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 VII.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 VII.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 VII.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 Agent arising thereafter under this Agreement. After any
retiring Agent's resignation or removal as Agent under this Agreement,
<PAGE> 40
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 VIII.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 VIII.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 (a) 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 VIII.3 Amendments and Related Matters. No
amendment or waiver of any provision of this Agreement or any Note, nor
consent to any departure by Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by Majority
Banks and Borrower and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent with
respect to this Agreement or any Note shall, unless in writing and
signed by all Banks, do any of the following: (a) increase the
Commitments of any Banks or subject the Banks to any additional
obligations, (b) reduce the principal of, or interest on, the Loans or
fees or other amounts payable to Banks hereunder, (c) postpone any date
fixed for any payment of principal of, or interest on, the Loans or any
fees or other amounts payable to Banks hereunder, (d) change the
relative percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans, or the number of Banks required for Banks
or any of them to take any action hereunder or (e) amend this Section
8.3; and provided, further, that no amendment, waiver or consent with
respect hereto shall, unless in writing and signed by Agent in addition
<PAGE> 41
to the Banks required above to take such action, affect the rights or
duties of Agent under this Agreement.
Section VIII.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 fees and expenses of in-house or outside
counsel), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) and restructuring 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 VIII.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,
<PAGE> 42
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 VIII.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 VIII.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 VIII.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 VIII.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 VIII.10 Confidentiality. Unless otherwise required
by any Directive, Agent and each Bank agrees not to voluntarily disclose
to unrelated third parties information clearly marked as "Confidential"
provided to it pursuant to this Agreement or the other Credit Documents,
except that there shall be no obligation of confidentiality in respect
of (i) any information which may be generally available to the public or
becomes available to the public through no fault of Agent or such Bank;
(ii) communications with actual or prospective participants, or
Assignees which undertake in writing to be bound by this Section 8.10;
(iii) Agent's or any Bank's directors, officers, employees and other
representatives and agents, and directors, officers, employees and other
representatives and agents of its Affiliates, legal counsel, auditors,
internal bank examiners and regulatory authorities having jurisdiction
over such Bank, and to the extent necessary or advisable in its judgment
other experts or consultants retained by it, if in the case of a person
or entity other than a director, officer, employee, legal counsel,
auditor or internal bank examiner, Agent or such Bank obtains from such
person or entity an undertaking in writing as to confidentiality
substantially identical to this undertaking and (iv) information which
is compelled to be disclosed pursuant to legal process or court order
(provided that, to the extent practicable and permitted by applicable
Laws, 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 in
which the Borrower is an opposing party (provided that Agent or such
<PAGE> 43
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 VIII.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, 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
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
<PAGE> 44
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.
(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
<PAGE> 45
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) Funding by Special Purpose Funding Vehicles. Anything
herein to the contrary notwithstanding, any Bank (a "Granting Bank") may
grant to a special purpose funding vehicle ("SPC") of such Granting
Bank, identified as such in writing from time to time by the Granting
Bank to the Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Bank otherwise
would be obligated to make to the Borrower pursuant to Section 2.1,
provided that (i) nothing herein shall constitute a commitment by any
SPC to make any Loan and (ii) if an SPC elects not to exercise such
option to make a Loan or otherwise fails to provide all or any part
thereof, the Granting Bank shall remain obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall be deemed to constitute a utilization of the Commitment of the
Granting Bank to the same extent, and as if, such Loan were made by the
Granting Bank. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the related
Granting Bank). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding senior indebtedness of any SPC,
it will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the
laws of the United States or any State thereof with respect to
obligations arising hereunder or under any other Credit Document. In
addition, notwithstanding anything to the contrary contained in Section
8.10 or this Section 8.11, any SPC may (i) with notice to, but without
the prior written consent of, the Borrower or the Agent and without
paying any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Bank and (ii) disclose (subject
to an agreement by the recipient to maintain the confidentiality
thereof) any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC.
(g) 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 VIII.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
<PAGE> 46
RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH
RESPECT TO THIS AGREEMENT, OR THE OTHER CREDIT DOCUMENTS, THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF OR
THEREOF, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY
LEGALLY DO SO, BORROWER, BANKS AND AGENT HEREBY AGREE THAT ANY SUCH
CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED
BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8.12 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO
WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
Section VIII.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 VIII.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> 47
Section VIII.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 VIII.16 Effectiveness and Effect of Agreement.
This Agreement shall become effective (and the date this Agreement
becomes so effective is the "Effective Date") on the date (which date
shall occur on or before July 10, 1997) which is three Banking Days
following the date upon which Agent shall have received counterparts of
this Agreement, duly executed by Borrower and the Banks listed on the
signature pages hereof; provided that any Notice of Borrowing delivered
by the Borrower during the period between the receipt of the Borrower's
executed counterpart hereof and the Effective Date (if any) shall have
the same force and effect, and shall be subject to the provisions of
Section 2.3(c), as if the Effective Date had occurred prior to the
delivery thereof.
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
Title: 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 FIRST BOSTON, as
Administrative Agent
By /s/ Ira Lubinsky
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Co-
Agent and as a Bank
By /s/ Thomas G. Muoio
Title: Vice President
By /s/ Robert B. Potter
Title: Vice President
<PAGE> 48
THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY, as a Co-Agent and as a Bank
By /s/ Stephen Lockhart
Title: Vice President
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), as a Co-Agent
and as a Bank
By /s/ Robert Addea
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD., NEW
YORK BRANCH, as a Co-Agent and as a
Bank
By /s/ Thomas M. Fennessey
Title: Assistant Vice President
FLEET BANK, N.A., as a Co-Agent and as
a Bank
By /s/ Magda Hayden
Title: Vice President
<PAGE> 49
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH, as a Co-Agent and as
a Bank
By /s/ J. Kenneth Biegen
Title: Senior Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as a Co-Agent and as a Bank
By /s/ David Fox
Title: Vice President
MELLON BANK N.A., as a Co-Agent and as
a Bank
By /s/ Peyton R. Latimer
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A., as a Co-
Agent and as a Bank
By /s/ Yousuf Omar
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as a
Co-Agent and as a Bank
By /s/ Laura Vassamiller
Title: Vice President
ROYAL BANK OF CANADA, as a Co-Agent
and as a Bank
By /s/ Stephen S. Hughes
Title: Senior Manager
THE SANWA BANK, LIMITED, NEW YORK
BRANCH, as a Co-Agent and as a Bank
By /s/ Dominic J. Sorresso
Title: Vice President
<PAGE> 50
ABN AMRO BANK N.V., NEW YORK BRANCH
By /s/ Frances O'R Logan
Title: Group Vice President
By /s/ Thomas T. Rogers
Title: Assistant Vice President
BANCA COMMERCIALE ITALIANA (NEW YORK
BRANCH)
By /s/ Charles Dougherty
Title: Vice President
By /s/ Karen Purelis
Title: Vice President
BANCA POPOLARE DI MILANO, NEW YORK
BRANCH
By /s/ Anthony Franco
Title: Executive Vice President and
General Manager
By /s/ Esperanza Quintero
Title: Vice President, Capital Markets
BANK AUSTRIA AG
By /s/ J. Anthony Seay
Title: Vice President
By /s/ George M. Williams III
Title: Assistant Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By /s/ Roger J. Fleischman
Title: Vice President
<PAGE> 51
BANK BRUSSELS LAMBERT, New York Branch
By /s/ John Kippax
Title: Vice President and Manager
By /s/ Malika Kambhampati
Title: Vice President and Manager
BANK OF MONTREAL
By /s/ Thomas Moore
Title: Director
By /s/ Thomas H. Peer
Title: Director
BANK OF TOKYO-MITSIBISHI TRUST COMPANY
By /s/ G. Stewart
Title: Senior Vice President and
Manager
BANQUE NATIONALE DE PARIS
By /s/ Richard L. Sted
Title: Senior Vice President
By /s/ Robert S. Taylor, Jr.
Title: Senior Vice President
BANQUE PARIBAS
By /s/ John J. McCormick, III
Title: Vice President
By /s/ Robert G. Carino
Title: Vice President
BAYERISCHE VEREINSBANK AG, NEW YORK
BRANCH
By /s/ Marianne Weinzinger
Title: Vice President
By /s/ Pamela Gillons
Title: Assistant Treasurer
<PAGE> 52
COMMERZBANK AG, New York and/or Grand
Cayman Branches
By /s/ Subash R. Viswanthan
Title: Vice President
By /s/ Peter T. Doyle
Title: Assistant Treasurer
CORESTATES BANK, N.A.
By /s/ Elizabeth Chow
Title: Corporate Banking Officer
DEUTSCHE BANK AG, New York and/or
Cayman Islands Branches
By /s/ Ralf Hoffman
Title: Vice President
By /s/ Jean M. Hannigan
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By /s/ Toshiaki Yakura
Title: Vice President and Group Head,
US Corporate Finance
KEY BANK NATIONAL ASSOCIATION
By /s/ Karen Lee
Title: Vice President
THE MITSUI TRUST AND BANKING COMPANY,
LIMITED
By /s/ Margaret Holloway
Title: Vice President and Manager
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By /s/ Susan R. Julien
Title: Vice President
<PAGE> 53
STANDARD CHARTERED BANK PLC
By /s/ Peter Dodds
Title: Vice President
By /s/ Kristina McDavid
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By /s/ Gordon Saint-Denis
Title: Vice President
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By /s/ John C. Kissinger
Title: Joint General Manager
SUNTRUST BANK, ATLANTA
By /s/ May M. Smith
Title: Banking Officer
By /s/ Craig W. Farnsworth
Title: Vice President and Manager
THE TOKAI BANK, LIMITED
By /s/ Kaoru Oda
Title: Assistant General Manager
THE TOYO TRUST & BANKING CO., LTD.
By /s/ Takashi Mikumo
Title: Vice President
UNION BANK OF SWITZERLAND, New York
Branch
By /s/ Eduardo Salazar
Title: Vice President
<PAGE> 54
By /s/ Stephen A. Cayer
Title: Assistant Vice President
WACHOVIA BANK, N.A.
By /s/ William C. Christie
Title: Senior 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 Second Amended and Restated
Credit Agreement, dated as of June 30, 1997 (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
First Boston, 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
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.
<PAGE>
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 FIRST BOSTON, 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 Second Amended and
Restated Credit Agreement, dated as of June 30, 1997 (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 First Boston, 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.
<PAGE>
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.
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 First Boston, as
administrative agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 2.1(b)
of that certain Second Amended and Restated Credit Agreement, dated as
of June 30, 1997 (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 First Boston, as administrative agent
(in such capacity, the "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 First Boston, as
administrative agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 2.1(h)
of that certain Second Amended and Restated Credit Agreement, dated as
of June 30, 1997 (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 First Boston, as administrative agent
(in such capacity, the "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 First Boston, as
administrative agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 2.1(g)
of that certain Second Amended and Restated Credit Agreement, dated as
of June 30, 1997 (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 First Boston, as administrative agent
(in such capacity, the "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
<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>
EXHIBIT E
[LETTERHEAD OF SIMPSON THACHER & BARTLETT]
July [__], 1997
Credit Suisse First Boston, as Administrative Agent
11 Madison Avenue
New York, New York 10010
- 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 First Boston, 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 June 30, 1997 (the "Credit Agreement"),
among Computer Associates International, Inc., a Delaware corporation
(the "Borrower"), the banks and other financial institutions parties
thereto (the "Banks") 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 us 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.
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 execution, delivery and performance by the Borrower of the Credit
Agreement has been duly authorized by all necessary corporate action on
<PAGE>
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 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 its 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 an implied covenant of good faith and fair
dealing.
(b) We express no opinion as to subsection 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
setoff 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.
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,
<PAGE>
EXHIBIT F
FORM OF
PROMISSORY NOTE
$ New York, New York
June 30, 1997
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 First Boston, located at 11
Madison Avenue, New York, New York 10010, 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
Second Amended and Restated 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 First Boston, 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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