<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 27)
Sterling Software, Inc.
(Name of Issuer)
Common Stock, par value $0.10 per share
(Title of Class of Securities)
859547-10-1
(CUSIP Number)
Robert L. Estep
Jones, Day, Reavis & Pogue
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
(214) 220-3939
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 30, 1997
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
(Continued on following pages)
(Page 1 of 32 Pages)
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 2 of 32 Pages
===============================================================================
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sam Wyly ###-##-####
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [_]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
BK, OO, WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [_]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 499,179
OWNED BY ---------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 300,000
---------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,299,179
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
300,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,599,179
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [_]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.4%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 3 of 32 Pages
===============================================================================
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Charles J. Wyly, Jr. ###-##-####
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [_]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
BK, OO, WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [_]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 700,833
OWNED BY ---------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 300,000
---------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,600,833
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
300,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,900,833
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [_]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.8%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 4 of 32 Pages
===============================================================================
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Maverick Entrepreneurs Fund, Ltd.
75-231945
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [_]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
BK, OO, WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [_]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 300,000
OWNED BY ---------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 0
---------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
300,000
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
300,000
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [_]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.8%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
================================================================================
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 5 of 32 Pages
This Schedule 13D/A Amendment No. 27 hereby amends and restates in its
entirety the Schedule 13D filed jointly by Sam Wyly, Charles J. Wyly, Jr. and
Maverick Entrepreneurs Fund, Ltd. ("Maverick Entrepreneurs" and collectively
with Sam Wyly and Charles J. Wyly, Jr., the "Reporting Persons") with respect to
the securities of Sterling Software, Inc., a Delaware corporation (the
"Company").
Item 1. Security and Issuer.
-------------------
This statement relates to the ownership of common stock, $.10 per share
("Common Stock"), of Sterling Software, Inc., a Delaware corporation. The
address of the principal executive office of the Company is 300 Crescent Court,
Suite 1200, Dallas, Texas 75201.
Item 2. Identity and Background.
-----------------------
This statement is being filed by Mr. Sam Wyly, Mr. Charles J. Wyly, Jr.
and Maverick Entrepreneurs. Maverick Entrepreneurs is a limited partnership of
which Sam Wyly and Charles J. Wyly, Jr. are the sole general partners.
The principal business and office address of each of the Reporting
Persons is 300 Crescent Court, Suite 1000, Dallas, Texas 75201. Sam Wyly is
principally employed as Chairman of the Board of Directors of each of the
Company and Michaels Stores, Inc. Charles J. Wyly, Jr. is principally employed
as Vice Chairman of the Board of Directors of each of the Company and Michaels
Stores, Inc.
No Reporting Person has, during the last five years, been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors) or
been a party to a civil proceeding of a judicial or administrative body
resulting in subjection to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Sam Wyly and Charles J. Wyly, Jr. is each a citizen of the United
States. Maverick Entrepreneurs is a Texas limited partnership.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
The source of funds to hold a portion of the shares of Common Stock
beneficially owned by the Reporting Persons is borrowings under revolving lines
of credit maintained by (i) the trusts described in Item 5 for which Sam Wyly is
trustee (the "Sam Wyly Trusts"), (ii) Tallulah, Ltd., (iii) the trusts described
in Item 5 for which Charles J. Wyly, Jr. is trustee (the "Charles Wyly Trusts"),
(iv) Brush Creek, Ltd., and (v) Maverick Entrepreneurs, with each of NationsBank
of Texas, N.A. ("NationsBank") and Citibank, N.A. ("Citibank"). See Item 6
below.
The source of funds to hold a portion of the shares of Common Stock
beneficially owned by Maverick Entrepreneurs is borrowings under a loan
agreement between Maverick Entrepreneurs and Lehman Brothers Finance S.A.
("Lehman"). See Item 6 below.
The options described in Item 5 as held by Sam Wyly and Charles J.
Wyly, Jr. were granted under stock option plans of the Company.
Item 4. Purpose of Transaction.
----------------------
The shares of Common Stock acquired by the Reporting Persons were
acquired for investment. Depending on market conditions and other factors that
they deem material to an investment decision, any of the Reporting Persons may
purchase additional shares of Common Stock or may dispose of all or a portion of
the shares of Common Stock they now beneficially own or may hereafter acquire.
Except as set forth in this Item 4, none of the Reporting Persons has any
present plans or proposals that relate to or would result in any of the actions
specified in clauses (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a)-(b) Sam Wyly beneficially owns 2,599,179 shares, or approximately
6.4%, of the Common Stock of the Company. Sam Wyly beneficially owns (i)
1,800,000 of such shares by virtue of his ownership of options to purchase
Common Stock, (ii) 138,612 of such shares in his capacity as the sole general
partner of Tallulah, Ltd., (iii) 300,000 of such shares in his capacity as a
general partner of Maverick Entrepreneurs, (iv) 2,214 of such shares held for
his benefit pursuant to the Sterling Software, Inc. Savings and Security Plan
(the "Savings Plan"), and (v) an aggregate of 358,353 of such shares in his
capacity as the sole trustee of the Sam Wyly Trusts listed below:
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 6 of 32 Pages
<TABLE>
<CAPTION>
Number of Shares
Name of Trust Beneficially Owned
------------- ------------------
<S> <C>
1. The Christiana Parker Wyly Trust 34,890
2. The Andrew David Sparrow Wyly Trust 34,890
3. The Laurie L. Wyly Revocable Trust 97,624
4. The Lisa Wyly Revocable Trust 95,425
5. The Kelly Wyly Elliot Trust 95,524
</TABLE>
Sam Wyly possesses sole voting power with respect to 499,179 shares of
Common Stock, sole dispositive power with respect to 2,299,179 shares of Common
Stock and shared voting and shared dispositive power with respect to 300,000
shares of Common Stock held by Maverick Entrepreneurs.
Charles J. Wyly, Jr. beneficially owns 1,900,833 shares, or
approximately 4.8%, of the Common Stock of the Company. Charles J. Wyly, Jr.
beneficially owns (i) 900,000 of such shares by virtue of his ownership of
options to purchase Common Stock, (ii) 256,574 of such shares in his capacity as
the sole general partner of Brush Creek, Ltd., (iii) 300,000 of such shares in
his capacity as a general partner of Maverick Entrepreneurs, (iv) 2,560 of such
shares held for his benefit pursuant to the Savings Plan, and (v) an aggregate
of 441,699 of such shares as the sole trustee of the Charles Wyly Trusts listed
below:
<TABLE>
<CAPTION>
Number of Shares
Name of Trust Beneficially Owned
------------- ------------------
<S> <C>
1. The Martha Caroline Wyly Trust 110,425
2. The Charles J. Wyly, III Trust 110,425
3. The Emily Ann Wyly Trust 110,424
4. The Jennifer Lynn Wyly Trust 110,425
</TABLE>
Charles J. Wyly, Jr. possesses sole voting power with respect to
700,833 shares of Common Stock, sole dispositive power with respect to 1,600,833
shares of Common Stock and shared voting and shared dispositive power with
respect to 300,000 shares of Common Stock held by Maverick Entrepreneurs.
Maverick Entrepreneurs beneficially owns and possesses sole voting and
sole dispositive power with respect to 300,000 shares, or approximately 0.8%, of
Common Stock of the Company.
The Reporting Persons as a group beneficially own an aggregate of
4,200,012 shares of Common Stock, or approximately 10.2%, of the Common Stock of
the Company. The Reporting Persons as a group possess sole voting power with
respect to 1,500,012 shares of Common Stock and sole dispositive power with
respect to 4,200,012 shares of Common Stock.
(c) On March 31, 1997, Sam Wyly was granted options to purchase
an aggregate of 200,000 shares of Common Stock at an exercise price of $27.25
per share, which options will become exercisable on June 29, 1997. As a result,
Sam Wyly is deemed to have become the beneficial owner of an additional 200,000
shares of Common Stock on April 30, 1997.
On March 31, 1997, Charles J. Wyly, Jr. was granted options to purchase
an aggregate of 100,000 shares of Common Stock at an exercise price of $27.25
per share, which options will become exercisable on June 29, 1997. As a result,
Charles J. Wyly, Jr. is deemed to have become the beneficial owner of an
additional 100,000 shares of Common Stock on April 30, 1997.
Except as otherwise reflected in this Item 5, no transactions in the
Common Stock were effected by the Reporting Persons during the last 60 days or
since the most recent filing on Schedule 13D, whichever is less.
(d) No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale of,
the Common Stock deemed to be beneficially owned by the Reporting Persons.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with respect
---------------------------------------------------------------------
to Securities of the Issuer.
- ---------------------------
On February 23, 1995, Maverick Entrepreneurs entered into an agreement,
as amended on August 30, 1995, with Lehman providing for loans to Maverick
Entrepreneurs from time to time (the "Lehman Agreement"). In connection with the
Lehman Agreement, Maverick Entrepreneurs entered into various security
documents, as amended, (the "Security Documents") provided for in the Lehman
Agreement. Included in the Security Documents are documents that provide, in
general, that: (i) with respect to an aggregate of 300,000 shares of Common
Stock, if the market price of such shares of Common Stock on or before February
23, 1998, is less than $40.491, then Lehman, upon the request of Maverick
Entrepreneurs, will pay to Maverick Entrepreneurs the difference between such
market price and such specified amount at the time of such request, and if the
market price on February 23, 1998, is greater than $70.00, Maverick
Entrepreneurs will, on that date, pay to Lehman the difference between such
market price and such
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 7 of 32 Pages
specified amount; and (ii) Maverick Entrepreneurs is required to pledge such
rights and an aggregate of 300,000 shares of Common Stock to secure its
obligations under the Security Documents.
Each of (i) the Sam Wyly Trusts and Tallulah, Ltd., (ii) the Charles
Wyly Trusts and Brush Creek, Ltd., and (iii) Maverick Entrepreneurs maintains
separate revolving lines of credit with NationsBank (collectively, the
"NationsBank Credit Facilities"). The obligations of each borrower to repay
advances made under its NationsBank Credit Facilities are several, full-recourse
obligations that are secured by the pledge of shares of Common Stock
beneficially owned by the Reporting Persons as well as other securities. Each
advance under a NationsBank Credit Facility bears interest at NationsBank's
prime rate or at a floating rate, as elected by the borrower. Sam Wyly and
Charles J. Wyly, Jr. have each guaranteed the obligations of Maverick
Entrepreneurs under its NationsBank Credit Facility. The NationsBank Credit
Facilities were amended and restated effective as of November 22, 1996 to
provide that all amounts outstanding under the NationsBank Credit Facilities
mature on November 22, 1998.
Each of (i) Tallulah, Ltd., (ii) Brush Creek, Ltd., (iii) the Sam Wyly
Trusts, and (iv) the Charles J. Wyly, Jr. Trusts also maintains a separate
revolving line of credit with Citibank (collectively, the "Citibank Credit
Facilities"). The obligations of each borrower to repay advances made under its
Citibank Credit Facility are full-recourse obligations that are secured by the
borrower's pledge of certain shares of Common Stock beneficially owned by the
Reporting Persons, as well as other securities and assets. Each advance under a
Citibank Credit Facility bears interest at a rate of Citibank's announced base
rate, plus 1.0%, or at a Eurodollar-based rate, minus 1.0%, as elected by the
borrower. Sam Wyly and Charles J. Wyly, Jr. have guaranteed the obligations of
Tallulah, Ltd. and Brush Creek, Ltd., respectively, under the applicable
Citibank Credit Facility, and certain of the beneficiaries of each of the Sam
Wyly Trusts, and the Charles J. Wyly Trusts, have guaranteed the obligations of
the respective trusts under the applicable Citibank Credit Facility. The
Citibank Credit Facilities were amended effective as of December 16, 1996 to
provide that all amounts outstanding under the Citibank Credit Facilities will
mature on January 31, 1998.
The foregoing descriptions of the agreements relating to the Lehman
Agreement, the Security Documents, the NationsBank Credit Facilities and the
Citibank Credit Facilities are qualified in their entirety by reference to such
agreements, copies of which have been filed as exhibits to this Schedule 13D and
are incorporated herein by reference.
<TABLE>
<CAPTION>
Item 7. Material to be Filed as Exhibits.
--------------------------------
<C> <S>
Exhibit 1.* Agreement pursuant to Rule 13d-1(f)(1)(iii).
Exhibit 2.1 Form of Loan Agreement dated as of February 23,
1995 between Maverick Entrepreneurs Fund, Ltd. and
Lehman Brothers Finance S.A., including Form of
Promissory Note. (Previously filed as Exhibit 2
to Amendment No. 21 to this Schedule 13D.)
Exhibit 2.2 Form of Amendment Agreement dated as of August 30,
1995, between Maverick Entrepreneurs Fund, Ltd.,
and Lehman Brothers Finance S.A., including Form
of Promissory Note. (Previously filed as Exhibit
7 to Amendment No. 24 to this Schedule 13D.)
Exhibit 3. Form of Guarantee of Lehman Brothers Holdings Inc.
(Previously filed as Exhibit 5 to Amendment No. 21
to this Schedule 13D.)
Exhibit 4. Form of Pledge Agreement, dated as of February 23,
1995, between Maverick Entrepreneurs Fund, Ltd.
and Lehman Brothers Finance S.A. (Previously
filed as Exhibit 6 to Amendment No. 21 to this
Schedule 13D.)
Exhibit 5.1 Revised Option Transaction dated August 30, 1995,
between Maverick Entrepreneurs Fund, Ltd., and
Lehman Brothers Finance S.A. (Previously filed as
Exhibit 8 to Amendment No. 24 to this Schedule
13D.)
Exhibit 5.2 Revised Option Transaction dated August 30, 1995,
between Maverick Entrepreneurs Fund, Ltd., and
Lehman Brothers Finance S.A. (Previously filed as
Exhibit 9 to Amendment No. 24 to this Schedule
13D.)
Exhibit 6.* Form of Amended and Restated Loan Agreement, dated
November 22, 1996, among NationsBank and each of
(i) Sam Wyly Trusts and Tallulah, Ltd.; (ii) the
Charles Wyly Trusts and Brush Creek Limited; and
(iii) Maverick Entrepreneurs Fund, Ltd.
Exhibit 7. Form of Pledge Agreement, dated November 22, 1994,
between NationsBank and each of (i) Tallulah,
Ltd.; (ii) the Sam Wyly Trusts; (iii) Brush Creek,
Ltd.; (iv) the Charles Wyly Trusts; and (v)
Maverick Entrepreneurs Fund, Ltd. (Previously
filed as Exhibit 3 to Amendment No. 26 to this
Schedule 13D.)
</TABLE>
- ------------------------------
* Filed herewith.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 8 of 32 Pages
<TABLE>
<C> <S>
Exhibit 8. Form of Collateral Maintenance Agreement, dated
November 22, 1994, between NationsBank and each of
(i) Tallulah, Ltd.; (ii) the Sam Wyly Trusts;
(iii) Brush Creek, Ltd.; (iv) the Charles Wyly
Trusts; and (v) Maverick Entrepreneurs Fund, Ltd.
(Previously filed as Exhibit 4 to Amendment No. 26
to this Schedule 13D.)
Exhibit 9. Guaranty, executed as of November 22, 1994, by
Tallulah, Ltd., the Sam Wyly Trusts, Brush Creek,
Ltd., the Charles Wyly Trusts, and Evan Wyly, in
favor of NationsBank. (Previously filed as
Exhibit 5 to Amendment No. 26 to this Schedule
13D.)
Exhibit 10.1 Form of Credit Agreement, dated as of December 16,
1994, as amended, between Citibank and each of (i)
Tallulah, Ltd.; (ii) the Sam Wyly Trusts; (iii)
Brush Creek, Ltd.; and (iv) the Charles Wyly
Trusts. (Previously filed as Exhibit 6 to
Amendment No. 26 to this Schedule 13D.)
Exhibit 10.2* Form of Second Amendment to Credit Agreement,
dated as of December 16, 1996, between Citibank
and each of (i) Tallulah, Ltd.; (ii) the Sam Wyly
Trusts; (iii) Brush Creek, Ltd; and (iv) the
Charles Wyly Trusts.
Exhibit 11.1 Form of Pledge Agreement, dated as of December 16,
1994, as amended, between Citibank and each of (i)
Tallulah, Ltd.; (ii) the Sam Wyly Trusts; (iii)
Brush Creek, Ltd.; and (iv) the Charles Wyly
Trusts. (Previously filed as Exhibit 7 to
Amendment No. 26 to this Schedule 13D.)
Exhibit 11.2* Form of Third Amendment to Pledge Agreement, dated
as of December 16, 1996, between Citibank and each
of (i) Tallulah, Ltd.; (ii) the Sam Wyly Trusts;
(iii) Brush Creek, Ltd.; and (iv) the Charles Wyly
Trusts.
Exhibit 12. Form of Guaranty Agreement, dated as of December
16, 1994, in favor of Citibank by (i) the general
partner of Tallulah, Ltd.; (ii) the general
partner of Brush Creek, Ltd.; and (iii) certain of
the beneficiaries of each of the Sam Wyly Trusts
and the Charles Wyly Trusts. (Previously filed as
Exhibit 8 to Amendment No. 26 to this Schedule
13D.)
Exhibit 13.* Form of Amended and Restated Promissory Note,
dated as of December 16, 1996, between Citibank
and each of (i) Tallulah, Ltd.; (ii) the Sam Wyly
Trusts; (iii) Brush Creek, Ltd.; and (iv) the
Charles Wyly Trusts.
</TABLE>
- ------------------------------
* Filed herewith.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 9 of 32 Pages
SIGNATURES
After reasonable inquiry, and to the best of our knowledge and belief,
we certify that the information set forth in this statement is true, complete
and correct.
Date: April 30, 1997 /s/ SAM WYLY
-------------------------------------------------
Sam Wyly
/s/ CHARLES J. WYLY, JR.
-------------------------------------------------
Charles J. Wyly, Jr.
MAVERICK ENTREPRENEURS FUND, LTD.
By: /s/ SAM WYLY
----------------------------------------------
Sam Wyly, General Partner
By: /s/ CHARLES J. WYLY, JR.
----------------------------------------------
Charles J. Wyly, Jr., General Partner
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 10 of 32 Pages
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No.
- -----------
<C> <S>
1.* Agreement pursuant to Rule 13d-1(f)(1)(iii).
2.1 Form of Loan Agreement dated as of February 23, 1995 between
Maverick Entrepreneurs Fund, Ltd. and Lehman Brothers Finance
S.A., including Form of Promissory Note. (Previously filed as
Exhibit 2 to Amendment No. 21 to this Schedule 13D.)
2.2 Form of Amendment Agreement dated as of August 30, 1995, between
Maverick Entrepreneurs Fund, Ltd., and Lehman Brothers Finance
S.A., including Form of Promissory Note. (Previously filed as
Exhibit 7 to Amendment No. 24 to this Schedule 13D.)
3. Form of Guarantee of Lehman Brothers Holdings Inc. (Previously
filed as Exhibit 5 to Amendment No. 21 to this Schedule 13D.)
4. Form of Pledge Agreement, dated as of February 23, 1995, between
Maverick Entrepreneurs Fund, Ltd. and Lehman Brothers Finance S.A.
(Previously filed as Exhibit 6 to Amendment No. 21 to this
Schedule 13D.)
5.1 Revised Option Transaction dated August 30, 1995, between Maverick
Entrepreneurs Fund, Ltd., and Lehman Brothers Finance S.A.
(Previously filed as Exhibit 8 to Amendment No. 24 to this
Schedule 13D.)
5.2 Revised Option Transaction dated August 30, 1995, between Maverick
Entrepreneurs Fund, Ltd., and Lehman Brothers Finance S.A.
(Previously filed as Exhibit 9 to Amendment No. 24 to this
Schedule 13D.)
6.* Form of Amended and Restated Loan Agreement, dated November 22,
1996, among NationsBank and each of (i) Sam Wyly Trusts and
Tallulah, Ltd.; (ii) the Charles Wyly Trusts and Brush Creek
Limited; and (iii) Maverick Entrepreneurs Fund, Ltd.
7. Form of Pledge Agreement, dated November 22, 1994, between
NationsBank and each of (i) Tallulah, Ltd.; (ii) the Sam Wyly
Trusts; (iii) Brush Creek, Ltd.; (iv) the Charles Wyly Trusts; and
(v) Maverick Entrepreneurs Fund, Ltd. (Previously filed as
Exhibit 3 to Amendment No. 26 to this Schedule 13D.)
8. Form of Collateral Maintenance Agreement, dated November 22, 1994,
between NationsBank and each of (i) Tallulah, Ltd.; (ii) the Sam
Wyly Trusts; (iii) Brush Creek, Ltd.; (iv) the Charles Wyly
Trusts; and (v) Maverick Entrepreneurs Fund, Ltd. (Previously
filed as Exhibit 4 to Amendment No. 26 to this Schedule 13D.)
9. Guaranty, executed as of November 22, 1994, by Tallulah, Ltd., the
Sam Wyly Trusts, Brush Creek, Ltd., the Charles Wyly Trusts, and
Evan Wyly, in favor of NationsBank. (Previously filed as Exhibit
5 to Amendment No. 26 to this Schedule 13D.)
10.1 Form of Credit Agreement, dated as of December 16, 1994, as
amended, between Citibank and each of (i) Tallulah, Ltd.; (ii) the
Sam Wyly Trusts; (iii) Brush Creek, Ltd.; and (iv) the Charles
Wyly Trusts. (Previously filed as Exhibit 6 to Amendment No. 26
to this Schedule 13D.)
10.2* Form of Second Amendment to Credit Agreement, dated as of December
16, 1996, between Citibank and each of (i) Tallulah, Ltd.; (ii)
the Sam Wyly Trusts; (iii) Brush Creek, Ltd; and (iv) the Charles
Wyly Trusts.
11.1 Form of Pledge Agreement, dated as of December 16, 1994, as
amended, between Citibank and each of (i) Tallulah, Ltd.; (ii) the
Sam Wyly Trusts; (iii) Brush Creek, Ltd.; and (iv) the Charles
Wyly Trusts. (Previously filed as Exhibit 7 to Amendment No. 26
to this Schedule 13D.)
11.2* Form of Third Amendment to Pledge Agreement, dated as of December
16, 1996, between Citibank and each of (i) Tallulah, Ltd.; (ii)
the Sam Wyly Trusts; (iii) Brush Creek, Ltd.; and (iv) the Charles
Wyly Trusts.
12. Form of Guaranty Agreement, dated as of December 16, 1994, in
favor of Citibank by (i) the general partner of Tallulah, Ltd.;
(ii) the general partner of Brush Creek, Ltd.; and (iii) certain
of the beneficiaries of each of the Sam Wyly Trusts and the
Charles Wyly Trusts. (Previously filed as Exhibit 8 to Amendment
No. 26 to this Schedule 13D.)
13.* Form of Amended and Restated Promissory Note, dated as of December
16, 1996, between Citibank and each of (i) Tallulah, Ltd.; (ii)
the Sam Wyly Trusts; (iii) Brush Creek, Ltd.; and (iv) the Charles
Wyly Trusts.
</TABLE>
- --------------------------
* Filed herewith.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 11 of 32 Pages
EXHIBIT 1
Pursuant to Rule 13d-1(f)(1)(iii) of Regulation 13D-G of the General
Rules and Regulations of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, the undersigned agree that the
statement to which this Exhibit is attached is filed on behalf of each of them.
Date: April 30, 1997 /s/ SAM WYLY
-------------------------------------------------
Sam Wyly
/s/ CHARLES J. WYLY, JR.
-------------------------------------------------
Charles J. Wyly, Jr.
MAVERICK ENTREPRENEURS FUND, LTD.
By: /s/ SAM WYLY
----------------------------------------------
Sam Wyly, General Partner
By: /s/ CHARLES J. WYLY, JR.
----------------------------------------------
Charles J. Wyly, Jr., General Partner
<PAGE>
EXHIBIT 6
---------
NationsBank Form of Amended and Restated Loan Agreement
================================================================================
Date November 22, 1996
Between
- --------------------------------------------------------------------------------
Borrowers: Bank:
- ---------------------------------------------- NationsBank of Texas, N.A.
- ---------------------------------------------- 901 Main Street
- ---------------------------------------------- 19th Floor
- ---------------------------------------------- Dallas, Texas 75202
- ----------------------------------------------
- ----------------------------------------------
- ----------------------------------------------
- ----------------------------------------------
8080 N. Central Expressway
Suite 1300
Dallas, Texas 75206
- --------------------------------------------------------------------------------
This Amended and Restated Loan Agreement ("Agreement") is made on the above date
by and between Borrowers and Bank.
1. THE LOAN.
A. Bank agrees to lend and each Borrower severally agrees to borrow an
amount not to exceed the amount set forth next to each such Borrower's
name on Schedule I attached hereto (individually, a "Loan" and
collectively, the "Loans") on the terms and conditions set forth
herein and subject to the other limitations set forth herein and in
the other Loan Documents (as defined herein). Each Loan will be
evidenced by a Promissory Note in the form of Exhibit A attached
hereto executed by the applicable Borrower, or any renewal thereof,
with interest and principal payable as stated therein (the "Notes").
The loans are renewals and restatements of (and not novations of)
those certain loans from Bank to Borrower, as evidenced by the Loan
Agreement dated November 22, 1994 between Borrowers and Bank.
B. Each Loan provides for a revolving line of credit under which a
Borrower may from time to time borrow, repay and reborrow funds;
provided, however, the aggregate amount of funds under any particular
Loan that may be outstanding at any time shall in all events be subject
to the limitations set forth on Schedule I and in the applicable Note
and Collateral Maintenance Agreement (as defined herein). The Loans
shall mature on November 22, 1998, unless sooner accelerated in
accordance with the terms hereof.
C. Bank and Borrowers acknowledge and agree that each Borrower's
individual liability hereunder shall be limited to the amount set forth
on Schedule I hereto, plus interest accrued thereon, plus any fees and
expenses owing hereunder.
2. SECURITY. Each Loan is to be secured by a pledge of certain securities
pursuant to a Pledge Agreement (the "Pledge Agreement") and a Collateral
Maintenance Agreement (the "Collateral Maintenance Agreement"), each
Agreement dated November 22, 1994 between a Borrower and Bank.
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3. REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants as to itself to Bank as follows:
A. Good Standing. Such Borrower (other than ____________________________)
is a trust duly established and validly existing under the laws of the
State of Texas and has all powers and permits, consents and
authorizations necessary to own and operate its properties and to carry
on its business as presently conducted. ______________ ("________") is
a limited partnership duly organized and validly existing under the
laws of the State of Texas and has all powers and permits, consents and
authorizations necessary to own and operate its properties and to carry
on its business as presently conducted.
B. Trustee/General Partner. ________ is (i) the sole trustee ("Trustee")
of such Borrower other than ____________ and (ii) the sole general
partner ("General Partner") of ________.
C. Authority and Compliance. The Trustee, on behalf of such Borrower
other than ________, and _________ have full power and authority to
enter into this Agreement, to make the borrowings hereunder, to
execute and deliver the Notes and the other Loan Documents (as defined
herein) to which such Borrower is or may be a party and to incur the
obligations provided for herein, all of which have been duly
authorized by all proper and necessary action on the part of such
Borrower. No consent or approval of any public authority or person is
required as a condition to the validity of this Agreement or the Notes
or the performance hereunder, and Borrower is in compliance with all
laws and regulatory requirements to which it is subject.
D. Binding Agreement. This Agreement and the Notes constitute valid and
legally binding obligations of Borrower, enforceable in accordance
with their terms.
E. Financial Statements. The books and records of Borrower properly
reflect such Borrower's financial condition, and there has been no
material change in such Borrower's financial condition as represented
in the financial statements dated June 30, 1996 delivered to Bank.
F. Litigation. There are no proceedings pending or, to the best knowledge
of the Trustee, or _________, threatened before any court or
administrative agency which will or may have a material adverse effect
on the financial condition or operations of any such Borrower.
G. No Conflicting Agreements. There are no provisions of Borrower's (other
than _____________________) trust agreement or ________'s agreement of
limited partnership and no provisions of any existing agreement,
mortgage, indenture or contract binding on Borrower or affecting its
respective property or business, which would conflict with or in any
way prevent the execution, delivery or carrying out of the terms of
this Agreement and the Notes.
H. Taxes. All income taxes and other taxes due and payable by Borrower
through the date of this Agreement have been paid prior to becoming
delinquent.
I. Use of Proceeds. The proceeds of the Loans will be used by Borrower to
(i) refinance in part the indebtedness of Borrowers currently owing to
The First Boston Corporation and (ii) invest in such securities as
such Borrower deems reasonably prudent. Such Borrower is not engaged
in the business of extending credit for the purpose of purchasing or
carrying "margin stock" as that term is defined in Regulation U of the
Board of Governors of the Federal Reserve System; provided, however
that proceeds of the Loans may also be used for the purpose of
investing in other parties for the purpose of purchasing or carrying
any such "margin stock," or for the purpose of reducing or retiring
any indebtedness incurred for such purpose. Neither such Borrower, nor
any person acting on behalf of Borrower, has taken or will take any
action which might cause the Notes or this Agreement to violate
Regulations G, T or U or any other regulation of the Board of
Governors of the Federal Reserve
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<PAGE>
System or violate the Securities Exchange Act of 1934 or any rule or
regulation thereunder, in each case as now in effect or as the same may
hereafter be in effect.
J. Continuation of Representations and Warranties. All representations
and warranties made under this Agreement shall be deemed made at and
as of the date hereof, and at and as of the date of any future advance
under any Note.
4. CLOSING CONDITIONS
A. Conditions to Initial Advance. The obligation of Bank to execute this
Agreement and to make the initial advances hereunder shall be subject
to the satisfaction of the following conditions precedent:
1) Loan Documents. Each of this Agreement, the Notes, and the
reaffirmation of the Pledge Agreements and the Collateral
Maintenance Agreements and such other ancillary documents and
instruments in furtherance of the transaction contemplated herein
as requested by Bank in connection with the Loans (the "Loan
Documents") shall have been duly executed and delivered by the
respective parties thereto, shall be in full force and effect and
shall be in form and substance satisfactory to Bank.
2) Necessary Action. All action (whether trust, partnership or
otherwise) necessary for the valid execution, delivery and
performance by each Borrower of this Agreement and the other Loan
Documents to which it is a party shall have been duly and
effectively taken, and evidence thereof satisfactory to Bank
shall have been provided to Bank.
3) Validity of Liens. The Pledge Agreements shall be effective to
create in favor of Bank a legal, valid and enforceable first
priority security interest in and lien upon the collateral
described therein. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the
opinion of Bank to protect and preserve such security interests
shall have been duly effected.
4) Payment of Fees. Bank shall have received the commitment fees in
the aggregate amount of $30,000, as contemplated by Section 6
below.
B. Conditions to All Borrowings. The obligation of Bank to make any
future advance under any Note shall be subject to the satisfaction of
the following conditions precedent:
1) Representations and Warranties. The representations and
warranties of Borrowers contained herein and in any other Loan
Documents shall be true and correct as of the date of which they
were made and shall also be true and correct at and as of the
time of the advance with the same effect as if made at and as of
that time (except to the extent such representations and
warranties expressly relate to an earlier date) and Bank shall
have received a certificate of a Subagent (as defined herein), to
such effect.
2) No Event of Default. No event of default hereunder or under any
of the other Loan Documents shall have occurred and be continuing
and Bank shall have received a certificate of a Subagent, to such
effect.
3) No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the
reasonable opinion of Bank would make it illegal for Bank to make
such advance.
4) Proceedings and Documents. All proceedings in connection with the
transactions contemplated hereby and the other Loan Documents
shall be satisfactory in form and substance to Bank and Bank
shall have received all information and documents as Bank may
reasonably request.
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<PAGE>
5. FEES. Each Borrower shall pay to Bank an annual commitment fee in the
amount of 1/10 of one percent (0.10%) of the commitment amount set forth
next to such Borrower's name on Schedule I, such fee to be due and payable
on the date hereof and on each annual anniversary thereafter so long as the
Loans are outstanding.
6. AFFIRMATIVE COVENANTS. So long as any Borrower may borrow hereunder and
until payment in full of the Notes and performance of all other obligations
of Borrowers hereunder, each Borrower will:
A. Financial Statements. Maintain a system of accounting satisfactory to
Bank and permit Bank's officers or authorized representatives to visit
such Borrower's offices and inspect such Borrower's books of account
and other records and make photocopies thereof at such reasonable times
and as often as Bank may desire, and pay the reasonable fees and
disbursements of any accountants or other agents of Bank selected by
Bank for the foregoing purposes. Each Borrower agrees to provide Bank
with the following statements and reports:
1) Within one hundred twenty (120) days after the end of each fiscal
year, a balance sheet of such Borrower as of the end of such
fiscal year, which shall be in reasonable detail, complete and
correct in all material respects.
2) Within thirty (30) days after the end of each fiscal quarter and
such other times as Bank may reasonably request, information or
statements respecting each Borrower's trading activity in the
collateral securing the Loans.
B. Existence and Compliance. Maintain its existence and comply with all
laws, regulations and governmental requirements applicable to it or to
any of its property, business and transactions.
C. Adverse Conditions or Events. Promptly advise Bank in writing of any
condition, event or act which comes to its attention that would or
might materially affect such Borrower's financial condition, Bank's
rights in or to any collateral under this Agreement or the other Loan
Documents, and of any litigation filed against such Borrower in which
the potential loss reasonably could be anticipated to exceed $50,000.
D. Taxes. Pay all taxes as the same become due and payable unless timely
extensions have been filed or the same are being contested in good
faith by appropriate proceedings and adequate reserves are maintained.
E. Form U-1. If required by Bank, promptly furnish to Bank a statement
that conforms with the requirements of Federal Reserve Form U-1 as
referred to in Regulation U or in any other relevant Federal Reserve
Form or Regulation provided for from time to time by the Board of
Governors of the Federal Reserve System.
7. NEGATIVE COVENANTS. So long as any Borrower may borrow hereunder and until
payment in full of the Notes and performance of all other obligations of
Borrowers hereunder, no Borrower will, without the prior written consent of
Bank:
A. Transfer of Assets or Control. Permit any transfer of control or
ownership of such Borrower.
B. Amendment of Trust Agreement/Partnership Agreement. No Borrower that is
a trust shall permit any amendment or modification of its trust
agreement or a change of the trustee thereof and ________ shall not
permit any amendment or modification of its agreement of limited
partnership or a change of the general partner.
8. EVENTS OF DEFAULT. With respect to any particular Borrower, any one or more
of the following events shall be deemed an event of default hereunder as to
such Borrower:
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A. Default shall be made in the payment of any installment of principal or
interest upon any Note or any other obligation of a Borrower to Bank
when due and payable, whether at maturity or otherwise and such default
shall continue for three (3) business days thereafter; or
B. Default shall be made by a Borrower in the performance of any term,
covenant or agreement contained herein, any of the other Loan
Documents, or in any other security agreement, deed of trust, mortgage,
assignment or other contract securing payment of any indebtedness of
such Borrower to Bank and such default shall continue for thirty (30)
calendar days following notice thereof being given by Bank to such
Borrower or Agent; or
C. Any representation or warranty herein contained or in any financial
statement, certificate, report or opinion or other agreement submitted
to Bank in connection with the Loans or pursuant to the requirements of
this Agreement shall prove to have been incorrect or misleading in any
material respect when made; or
D. Default shall be made by a Borrower in the performance of any term or
covenant in any agreement or instrument with any other party which
would have a material adverse effect on such Borrower or Bank's rights
hereunder or under the other Loan Documents, and such default is not
remedied within the applicable cure period; or
E. A Borrower makes an assignment for the benefit of creditors, admits in
writing its inability to pay its debts generally as they become due,
files a petition in bankruptcy, is adjudicated insolvent or bankrupt,
petitions or applies to any tribunal for the appointment of any
receiver or any trustee for it or any substantial part of its
property, commences any action relating to a Borrower or any
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, or if there is commenced against a Borrower any
such action, or a Borrower by any act indicates its consent to or
approval of any trustee for such Borrower or any substantial part of
its property, or suffers any such receivership or trustee to continue
undischarged; or
F. Without the prior written consent of Bank, a Borrower that is a trust
is at any time revoked, terminated or liquidated or ________ is
dissolved or liquidated or ______________ dies.
Upon the happening of any of the foregoing events of default which shall be
continuing, Bank may at its option declare all outstanding principal and
unpaid interest on the applicable Loan and any other indebtedness of the
particular defaulting Borrower to Bank to be immediately due and payable,
and Bank shall have no further obligation to fund advances hereunder to
such Borrower. Upon such declaration by Bank, Bank shall have all rights
and remedies available under the Loan Documents as well as those available
at law or in equity. Notwithstanding the foregoing, upon the occurrence of
an event of default described in Section 8.E. to any particular Borrower,
the entire outstanding principal and unpaid interest on the Loan and all
other indebtedness of such Borrower to Bank shall be immediately and
automatically due and payable, without notice to such Borrower of any kind
and Bank's obligation to make advances to such Borrower shall immediately
terminate.
9. APPOINTMENT OF AGENT. Each Borrower hereby appoints and designates
_____________ as agent ("Agent") for and on behalf of such Borrower with
respect to all matters arising under or in connection with this Agreement,
the other Loan Documents and the applicable Loan hereunder including,
without limitation, requesting and receiving advances, making payments on
the applicable Loan, negotiating, executing and delivering modifications or
renewals of the Loan Documents, receiving notices from Bank, delivering
such other documents or instruments as the Bank may request in connection
with the Loans, and generally communicating with Bank regarding such
Borrower's obligations hereunder. Any funds advanced hereunder may be
distributed to Agent who shall have responsibility to distribute such funds
to the applicable Borrower. Agent is hereby granted full power and
authority to bind each Borrower in respect of any term, condition, covenant
or undertaking hereunder. Bank shall be entitled to rely on the appointment
without any independent verification. Each Borrower hereby further appoints
and designates each and any of Sharyl
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Robertson, Amy Phillips and Rena Alexander as subagents ("Subagents") for
and on behalf of such Borrower to perform all administrative functions
under the Loan Documents, including submitting advance requests, receiving
and sending notices and delivering certificates on behalf of such Borrower.
Borrowers shall not remove or otherwise change the Agent without the prior
written consent of Bank. The appointment hereunder is coupled with an
interest and irrevocable.
10. MISCELLANEOUS.
A. Expenses. Each Borrower severally agrees to pay all out-of-pocket
expenses of Bank in connection with this Agreement and the other Loan
Documents and the collection of its applicable Note including, without
limitation, the administration, enforcement and realization upon any
collateral or guaranty. Each Borrower severally also agrees to pay all
reasonable attorneys' fees and all expenses incurred in recording the
documents securing its applicable Loan.
B. Cumulative Rights and No Waiver. Each and every right granted to Bank
hereunder or under any other document delivered hereunder or in
connection herewith, or allowed it by law or equity shall be
cumulative of and may be exercised in addition to any and all other
rights of Bank, and no delay in exercising any right shall operate as
a waiver thereof, nor shall any single or partial exercise by Bank of
any right preclude any other or future exercise thereof or the
exercise of any other right. Any of the foregoing covenants and
agreements may be waived by Bank but only in writing signed by a Vice
President or higher level officer of Bank. Borrower expressly waives
any presentment, demand, protest or other notice of any kind.
No notice to or demand on a Borrower in any case shall, of itself,
entitle such or any other Borrower to any other or further notice or
demand in similar or other circumstances. No delay or omission by Bank
in exercising any power or right hereunder shall impair any such right
or power or be construed as a waiver thereof or any acquiescence
therein, nor shall any single or partial exercise of any such power
preclude other or further exercise thereof, or the exercise of any
other right or power hereunder.
C. Maximum Interest. Notwithstanding any other provision contained in
this Agreement, Bank does not intend to charge and no Borrower shall
be required to pay any amount of interest or other fees or charges
that is in excess of the maximum permitted by applicable law. Each
Borrower agrees that during the full term hereof, the maximum lawful
interest rate for the obligations hereunder as determined under Texas
law shall be the indicated rate ceiling as specified in Article
5069-1.04 of the V.A.T.S. Further, to the extent that any other lawful
rate ceiling exceeds the rate ceiling so determined, then the higher
rate ceiling shall apply. Any payment in excess of such maximum shall
be refunded to the applicable Borrower or credited against principal,
at the option of Bank.
D. Applicable Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and interpreted in accordance
with the laws of the State of Texas (without regard to its conflicts
of law provisions).
E. Notice. Except as otherwise provided in this Agreement, any notices or
communications required or permitted hereunder shall be in writing and
shall be deemed to have been given (i) the day it is personally
delivered, if sent by hand or expedited delivery service, or (ii) five
days after it is mailed, if sent by certified or registered mail.
F. Amendment. No modification, consent, amendment or waiver of any
provision of this Agreement, nor consent to any departure by a Borrower
therefrom, shall be effective unless the same shall be in writing and
signed by a Vice President or higher level officer of Bank, and then
shall be effective only in the specific instance and for the purpose
for which given. This Agreement is binding upon each Borrower, its
successors and assigns, and inures to be benefit of Bank, its
successors and assigns.
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G. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING
ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE
DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW). THE
RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL
DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF
ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY
PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR
EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION
OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN DALLAS,
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TEXAS AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER,
THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED
TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN
ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED
---------------------
TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE
STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN
THIS AGREEMENT; OR (II) BE A WAIVER BY THE BANK OF THE PROTECTION
AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY
EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE BANK (A) TO
EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR
ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE
RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES
BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION
PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE
OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES
SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING
THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
H. NOTICE OF FINAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
NATIONSBANK OF TEXAS, N.A. TRUST
---------------------------------
By: By:
---------------------------------- -----------------------------------
Marta O. Engram _______________, Trustee
Vice President, Private Banking
TRUST
---------------------------------
By:
-----------------------------------
_______________, Trustee
TRUST
---------------------------------
By:
-----------------------------------
_______________, Trustee
TRUST
---------------------------------
By:
-----------------------------------
_______________, Trustee
TRUST
---------------------------------
By:
-----------------------------------
_______________, Trustee
--------------------------------------
___________________________, LTD.
By:
-----------------------------------
------------------,
General Partner
The undersigned hereby acknowledges appointment as Agent for the Borrowers
hereunder.
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SCHEDULE I
Borrower Maximum Loan Amount
- -------- -------------------
- ---------------------------- $----------
- ---------------------------- $----------
- ---------------------------- $----------
- ---------------------------- $----------
- ---------------------------- $----------
- ---------------------------- $----------
- ---------------------------- $----------
$----------
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EXHIBIT 10.2
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THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Second Amendment")
----------------
dated as of December 16, 1996, is among __________ (the "Borrower"), and
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CITIBANK, N.A., a national banking association (the "Bank").
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W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Borrower and the Bank entered into that certain Credit
Agreement dated as of December 16, 1994, as amended by the First Amendment to
Credit Agreement dated as of September 30, 1996 (the "Credit Agreement")
----------------
pursuant to which the Bank agreed to made certain Advances to the Borrower; and
WHEREAS, the Borrower has requested and the Bank has agreed to amend
certain provisions of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Defined Terms. All capitalized terms which are defined in
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the Credit Agreement, but which are not defined in this Second Amendment, shall
have the same meanings as defined in the Credit Agreement. Unless otherwise
indicated, all section references in this Second Amendment refer to the Credit
Agreement.
Section 2. Amendments to the Credit Agreement.
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2.1 Section 1.01 is amended by deleting in its entirety the
definition of "Michaels".
2.2 Section 1.01 is amended by replacing in its entirety the
following definition:
"Termination Date" means January 31, 1998, or the earlier
date of termination in whole of the Commitment pursuant to
Section 2.05, Section 2.09 or Section 7.01.
2.3 Section 1.01 is amended by replacing in its entirety the
following definition:
"Note" means that certain Amended and Restated Promissory
Note of the Borrower payable to the order of the Bank,
dated as of December 16, 1996, evidencing the aggregate
indebtedness of the Borrower to the Bank resulting from the
Advances and delivered to the Bank pursuant
<PAGE>
to Article III, as the same may be amended, extended,
renewed or otherwise modified from time to time.
2.4 Section 3.02 is restated in its entirety to read as follows:
v(c) That in no event shall the aggregate of all
advances made by the Bank to the Borrower:
i. exceed $4,260,000.00 where such
advances are made against
Collateral consisting of Sterling
stock; and
ii. exceed $4,260,000.00 where such
advances are made against
Collateral consisting of
Sterling Commerce stock.
2.5 Section 5.01(d)(ii) is restated in its entirety to read as follows:
"as soon as available and in any event within sixty (60) days after
the end of each fiscal quarter of Sterling and Sterling Commerce,
the 10-Q Report of Sterling and Sterling Commerce, respectively;"
2.6 Sections 5.02(b) is restated in its entirety to read as follows:
(b) Liquidity. Permit the current market value of the
---------
unpledged Cash and Cash Equivalents and/or Readily Marketable
Securities (excluding any securities issued by Sterling or Sterling
Commerce), but including interests in Maverick of the Borrower and
the Guarantor, collectively, to be less than fifteen percent (15%)
of the Commitment for a period of ten (10) consecutive Business
Days; provided, that it is expressly contemplated that within such
period of ten (10) consecutive Business Days the Borrower shall
have the ability to increase such current market value of the
unpledged Cash and Cash Equivalents and/or Readily Marketable
Securities (excluding any securities issued by Sterling or Sterling
Commerce), but including interests in Maverick in accordance with
the provisions of subsection (ii) of Section 6.01.
2.7 Section 5.02(c) is deleted in its entirety.
2.8 Section 6.01(b) is restated in its entirety to read as follows:
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i. the value of the Sterling stock shall be excluded
for such period of time as the share price of
Sterling stock is below $10.00 per share; and
ii. the value of the Sterling Commerce stock shall be
excluded for such period of time as the share
price of Sterling Commerce stock is below $10.00
per share.
2.9 Section 7.01 is amended to add the following after subparagraph
(l):
"or (m) The Borrower fails to execute and deliver the following
documents, or complete the required actions:
(a) The Amended and Restated Promissory Note is duly executed
by the Borrower in the form of Exhibit A attached hereto;
(b) The Third Amendment to the Pledge Agreement is duly
executed by the Borrower; and
(c) All outstanding fees and expenses of the Bank."
Section 3. Representations and Warranties. The Borrower hereby affirms
------------------------------
that as of the date of execution and delivery of this Second Amendment, except
as affected by the transactions contemplated in this Second Amendment, all of
the representations and warranties contained in the Credit Agreement are true
and correct in all material respects as though made on and as of the date hereof
and no Event of Default shall have occurred and be continuing.
Section 4. Effectiveness. Upon the execution hereof by the Borrower and the
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Bank, this Second Amendment shall be effective as of the date first written
above.
Section 5. Reference to and Effect on Credit Agreement.
-------------------------------------------
(a) On or after the date first written above, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import, and each reference to the Credit Agreement in any certificate
or other document or instrument delivered in connection therewith, shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement is and
shall continue to be in full force and effect and is hereby ratified and
confirmed.
Section 6. Cost, Expenses and Taxes. The Seller agrees to pay on demand all
------------------------
reasonable costs and expenses of the Bank in connection with the preparation,
execution and delivery of this Second Amendment and any other documents to be
delivered in connection
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<PAGE>
herewith including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Bank with respect thereto.
Section 7. Counterparts. This Second Amendment may be executed by one or
------------
more of the parties hereto in any number of separate counterparts, and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 8. No Oral Agreement. THIS WRITTEN SECOND AMENDMENT AND THE OTHER
-----------------
DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
Section 9. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed effective as of the date first written above.
Borrower:
By:
-------------------------------
Witness: By:
-------------------------------
Name:
-----------------------------
Bank: CITIBANK, N.A.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
-5-
<PAGE>
EXHIBIT 11.2
------------
================================================================================
THIRD AMENDMENT
to
PLEDGE AGREEMENT
among
----------------,
as the Borrower
and
CITIBANK, N.A.
Effective as of December 16, 1996
================================================================================
<PAGE>
THIS THIRD AMENDMENT TO PLEDGE AGREEMENT (the "Third Amendment") dated
---------------
as of December 16, 1996, is among_________________(the "Borrower"), and
--------
CITIBANK, N.A., a national banking association (the "Bank").
----
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Borrower and the Bank entered into that certain Credit
Agreement dated as of December 16, 1994, as amended from time to time (the
"Credit Agreement") pursuant to which the Borrower and the Bank also entered
----------------
into that certain Pledge Agreement dated as of December 16, 1994 as amended by
the First Amendment to Pledge Agreement dated as of May 5, 1995 and further
amended by the Second Amendment to Pledge Agreement dated as of September 30,
1996 (the "Pledge Agreement") pursuant to which the Bank agreed to made certain
----------------
Advances to the Borrower; and
WHEREAS, the Borrower has requested and the Bank has agreed to amend
certain provisions of the Pledge Agreement and the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Defined Terms. All capitalized terms which are defined in
-------------
the Pledge Agreement or the Credit Agreement, but which are not defined in this
Third Amendment, shall have the same meanings as defined in the Pledge Agreement
or the Credit Agreement. Unless otherwise indicated, all section references in
this Third Amendment refer to the Pledge Agreement.
Section 2. Amendments to the Pledge Agreement.
-----------------------------------
(1) Schedule I to the Pledge Agreement is hereby deleted in its
entirety and Schedule I hereto is inserted in lieu thereof.
(2) Section 16 of the Pledge Agreement is hereby deleted in its
entirety and replaced by the following:
Continuing Security Interest; Assignments under Credit Agreement. This
----------------------------------------------------------------
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (a) remain in full force and effect until the later of (i) the payment
in full in cash of the obligations and all other amounts payable under this
Agreement and (ii) the expiration or termination of the Commitment, (b) be
binding upon the Borrower and the heirs, executors, administrators, legal
representatives, successors and assigns of the Borrower, and (c) inure to the
benefit of, and be enforceable by, the Bank and the successors, transferees and
assigns of the Bank. Without limiting the generality of the foregoing clause (c)
and subject to the provisions of the Credit Agreement, (a) the Bank, without any
notice to or consent of the Borrower, may sell participations to one or more
persons or entities in or to all or any portion of the Bank's
-1-
<PAGE>
rights and obligations under the Credit Agreement (including, but not limited
to, all or any portion of the Commitment, the Advances and the Note), and (b)
the Bank, with the prior written consent of the Borrower, which consent shall
not be unreasonably withheld, may assign, syndicate or otherwise transfer all or
any portion of the Bank's rights and obligations under the Credit Agreement
(including, but not limited to, all or any portion of the Commitment, the
Advances and the Note) to any other person or entity, and such other person or
entity shall thereupon become vested with all the benefits in respect thereof
granted to the Bank herein or otherwise; provided that, any other provision of
this Agreement to the contrary notwithstanding, the Bank may at any time create
a security interest in all or any portion of the Bank's rights under the Credit
Agreement (including, but not limited to, the Advances owing to the Bank and the
Note held by the Bank) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System. Upon the
later of the payment in full in cash of the Obligations and all other amounts
payable under this Agreement and the expiration or termination of the
Commitment, the security interest granted hereby shall terminate. Upon any such
termination, the Bank will, at the Borrower's expenses, (i) return stock
certificates evidencing ownership in Sterling Commerce and Sterling as shall not
have been sold or otherwise applied pursuant to the terms hereof to the then
acting transfer agent for Sterling Commerce or Sterling, as appropriate, with
instructions that restrictive legends by reapplied to such certificates after
which such certificates are to be returned to the Borrower or its designee by
the transfer agent and (i) return to the Borrower all other the Pledged
Collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof and execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence such termination.
Section 3. Representations and Warranties. The Borrower hereby affirms
------------------------------
that as of the date of execution and delivery of this Third Amendment, all of
the representations and warranties contained in the Credit Agreement and the
Pledge Agreement are true and correct in all material respects as though made on
and as of the date hereof and no Event of Default shall have occurred and be
continuing.
Section 4. Confirmation. The provisions of the Pledge Agreement (as
------------
amended by this Third Amendment) shall remain in full force and effect in
accordance with their terms following the effectiveness of this Third Amendment.
Section 5. Ratification and Affirmation of Guarantors. The Guarantor
------------------------------------------
under the Credit Agreement hereby expressly (i) acknowledges the terms of this
Third Amendment and the amendment of even date herewith to the Credit Agreement,
(ii) ratifies and affirms his obligations under the Guaranty Agreement, (iii)
acknowledges, renews and extends his continued liability under said Guaranty
Agreement and agrees that said Guaranty Agreement remains in full force and
effect.
Section 6. Counterparts. This Third Amendment may be executed by one or
------------
more of the parties hereto in any number of separate counterparts, and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument.
-2-
<PAGE>
Section 7. No Oral Agreement. THIS WRITTEN THIRD AMENDMENT AND THE
-----------------
OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 8.5 GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY,
-------------
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed effective as of the date first written above.
BORROWER:
-----------------------------------
By:
--------------------------------
WITNESS: By:
--------------------------------
Name:
------------------------------
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<PAGE>
EXHIBIT 13
----------
AMENDED AND RESTATED PROMISSORY NOTE
$ Dated: December 16, 1996
--------------
FOR VALUE RECEIVED, the undersigned, _________________________ (the
"Borrower"), _________________________, HEREBY PROMISES TO PAY to the order of
--------
CITIBANK, N.A., a national banking association (the "Bank"), on or before the
----
Termination Date, the principal sum of _______________ ($________) or, if less,
the aggregate principal amount of all Advances made by the Bank to the Borrower
pursuant to the Credit Agreement (as defined below) outstanding on the
Termination Date.
The Borrower promises to pay interest on the principal amount of each
Advance from the date of such Advance until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in the
Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Bank at One Citicorp Center, 153 East 53rd Street, New
York, New York 10043 (or at such other address as shall be designated by the
Bank in a written notice to the Borrower), in same day funds. Each Advance made
by the Bank to the Borrower and the maturity thereof, and all payments made on
account of the principal amount thereof, shall be recorded by the Bank and,
prior to any transfer hereof, endorsed on the grid attached hereto which is a
part of this Amended and Restated Promissory Note.
This Amended and Restated Promissory Note is the Note referred to in
and is entitled to the benefits of the Credit Agreement dated as of December 16,
1994, as amended by the First Amendment to Credit Agreement dated as of
September 30, 1996, and as further amended by the Second Amendment to Credit
Agreement dated as of December 16, 1996 among the Borrower and the Bank
thereunder (such Credit Agreement as the same may be amended or supplemented
from time to time, the "Credit Agreement") and is issued in replacement of that
----------------
certain Promissory Note dated December 16, 1994, executed by the Borrower and
made payable to Bank (the "Prior Note"). Nothing herein contained shall be
----------
construed (a) to be a novation of the Prior Note or (b) to release, cancel,
terminate or otherwise impair the status or priority of the liens or security
for the Prior Note. Further, the Borrower acknowledges and agrees that this Note
shall not be considered a new contract, and that all rights, titles, powers,
liens, security interests and estates created by or under any security document
or other agreement executed in connection with the Credit Agreement or securing
the Prior Note shall continue without interruption in full force and effect. The
Credit Agreement, among other things, contains provisions for acceleration of
the maturities hereof upon the happening of certain stated events and also for
the prepayments on account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified. Capitalized terms used in this Note
have the respective meanings assigned to them in the Credit Agreement.
<PAGE>
This Amended and Restated Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York. The Borrower
hereby submits to the exclusive jurisdiction of the United States District Court
for the Southern District of New York and of any court of the State of New York
sitting in New York City for purposes of all legal proceedings arising out of or
relating to the Credit Agreement, this Amended and Restated Promissory Note, any
other Loan Document or any transactions contemplated hereby or thereby. The
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which the Borrower may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Notwithstanding the preceding two sentences, the Bank retains the right to bring
any suit, action or proceeding seeking to enforce any provision of, or based on
any matter arising out of or in connection with, the Credit Agreement, this
Amended and Restated Promissory Note, any other Loan Document or any of the
transactions contemplated thereby or thereby in any court that has jurisdiction
over the parties and subject matter.
This Amended and Restated Promissory Note is issued pursuant to and is
entitled to the benefits of the Credit Agreement.
THE BORROWER:
-------------------------------------
By:
--------------------------------------
-----------------------------------------
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<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
======================================================================================================================
Amount of Unpaid
Amount of Maturity of Principal Paid Principal
Date Advance Advance or Unpaid Balance Notation Made By
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<S> <C> <C> <C> <C> <C>
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======================================================================================================================
</TABLE>
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