<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
AMENDMENT NO. 3 (FINAL AMENDMENT) TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
DATA PROCESSING RESOURCES CORPORATION
-------------------------------------------------------------
(Name of Subject Company)
COMP ACQUISITION CO.
COMPUWARE CORPORATION
-------------------------------------------------------------
(Bidders)
COMMON STOCK, NO PAR VALUE
-------------------------------------------------------------
(Title of Class of Securities)
23-7823109
-------------------------------------------------------------
(CUSIP Number of Class of Securities)
THOMAS COSTELLO, JR., ESQ.
COMP ACQUISITION CO.
COMPUWARE CORPORATION
31440 NORTHWESTERN HIGHWAY
FARMINGTON HILLS, MI 48334-2564
TELEPHONE: (248) 737-7300
-------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
COPIES TO:
DAVID W. HEALY, ESQ.
DOUGLAS N. COGEN, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CA 94306
TELEPHONE: (650) 494-0600
<PAGE> 2
CUSIP NO. 23-7823109 SCHEDULE 14D-1 PAGE 2 OF 6 PAGES
--------------------- ----- -----
(1) Name of Reporting Person;
S.S. or I.R.S. Identification No. of Above Person
COMP Acquisition Co.
To be applied for, if necessary
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(2) Check the Appropriate Box if a Member of a Group (a) [ ]
(b) [ ]
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(3) SEC use only
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(4) Sources of Funds AF
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(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(e) or 2(f) [ ]
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(6) Citizenship or Place of Organization
California
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(7) Aggregate Amount Beneficially Owned by Each Reporting Person
Directly: 14,401,167 shares of Common Stock
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(8) Check Box if the Aggregate Amount in Row (7) Excludes Certain
Shares [ ]
N/A
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(9) Percent of Class Represented by Amount in Row (7)
97.5% of outstanding Common Stock (based on 14,775,361 shares of
Common Stock issued and outstanding as of August 2, 1999).
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(10) Type of Reporting Person
CO
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CUSIP NO. 23-7823109 SCHEDULE 14D-1 PAGE 3 OF 6 PAGES
--------------------- ----- -----
(1) Name of Reporting Person;
S.S. or I.R.S. Identification No. of Above Person
Compuware Corporation
38-2007430
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(2) Check the Appropriate Box if a Member of a Group (a) [ ]
(b) [ ]
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(3) SEC use only
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(4) Sources of Funds WC, BK
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(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(e) or 2(f) [ ]
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(6) Citizenship or Place of Organization
Michigan
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(7) Aggregate Amount Beneficially Owned by Each Reporting Person
Indirectly: 14,401,167 shares of Common Stock.
---------------------------------------------------------------------
(8) Check Box if the Aggregate Amount in Row (7) Excludes Certain
Shares [ ]
N/A
---------------------------------------------------------------------
(9) Percent of Class Represented by Amount in Row (7)
97.5% of outstanding Common Stock (based on 14,775,361 shares of
Common Stock issued and outstanding as of August 2, 1999).
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(10) Type of Reporting Person
CO
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<PAGE> 4
This Amendment No. 3 (this "Final Amendment") amends and supplements the
Tender Offer Statement on Schedule 14D-1 filed with the Securities and Exchange
Commission on June 30, 1999, as amended by Amendments Nos. 1 and 2 thereto filed
on July 6, and July 20, 1999, respectively (the "Schedule 14D-1"), relating to
the offer by COMP Acquisition Co., a California corporation ("Purchaser") and
wholly owned subsidiary of Compuware Corporation, a Michigan corporation
("Compuware"), to purchase all outstanding shares of Common Stock, no par value
(the "Shares"), of Data Processing Resources Corporation, a California
corporation (the "Company"), at $24.00 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated June 30, 1999 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which, together with any amendments and supplements thereto,
collectively constitute the "Offer"). Capitalized terms used and not defined
herein shall have the meanings assigned to such terms in the Offer and the
Schedule 14D-1.
In accordance with General Instruction F to Schedule 14D-1, this Final
Amendment also constitutes a statement on Schedule 13D with respect to the
acquisition by Purchaser of the Shares as more fully described below.
Item 4 of the Schedule 14D-1 is hereby amended as follows:
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(c) The total amount of funds required by Purchaser to consummate
the Offer and the Merger is estimated to be approximately $354.6 million
(assuming the Purchase of all Shares outstanding), plus approximately $2.5
million to pay related fees and expenses. In addition, as indicated in Section
10 of the Offer to Purchase under the heading "Convertible Notes," the Company
will be required to offer to repurchase its 5 1/4% Convertible Subordinated
Notes due 2005 (the "Notes") following the earlier of the consummation of the
Offer or Merger, for the aggregate principal amount of $115 million plus accrued
interest. Purchaser plans to obtain all the funds needed for the Offer and the
Merger, and to repurchase the Notes, from Compuware. Compuware will obtain such
funds in part from the credit facility referred to below. As of March 31, 1999,
Compuware had approximately $193 million in cash and cash equivalents and
approximately $310 million in short term investments. Neither Purchaser nor
Compuware has conditioned the Offer or the Merger on obtaining financing.
On June 30, 1999, Compuware countersigned a commitment letter, dated
June 29, 1999, from Morgan Stanley Senior Funding, Inc. ("Morgan Stanley") and
Comerica Bank ("Comerica"), pursuant to which Morgan Stanley and Comerica
committed to provide a credit facility to Compuware on certain terms and
conditions. As contemplated by the commitment letter, Compuware, Morgan Stanley,
Comerica and various other lenders entered into a credit agreement, dated as of
August 3, 1999. While the credit agreement provides that Morgan Stanley and
Comerica are obligated to provide to Compuware, on specified terms and subject
to specified conditions, up to $900 million in credit financing (Morgan Stanley
is obligated to provide $540 million of the total commitment, and Comerica is
obligated to provide $360 million), it is expected that they will act as agents
for a syndicate of financial institutions which, together with Morgan Stanley
and Comercia, will provide the credit facility.
Approximately $300 million from the credit facility was advanced to
Compuware on August 4, 1999 to finance a portion of the purchase price of the
Shares pursuant to the Offer and to pay certain fees and expenses relating to
the credit facility. The balance of the purchase price was funded with
Compuware's own funds. The remaining funds needed by Compuware to purchase
Shares pursuant to the Merger, to repurchase Notes, to finance the payments to
be made upon the exercise of options to purchase Shares and to pay related fees
and expenses is expected to come from Compuware's internal sources and/or from
further borrowings under the credit facility. The balance of the credit
facility is expected to be used for other corporate purposes.
<PAGE> 5
The credit facility is a four year senior bank revolving credit
facility, with scheduled reductions of the commitments under the facility of
$100 million, $100 million and $700 million at the end of the second, third and
fourth years, respectively. Outstanding loans under the credit facility are to
be repaid if at any time their aggregate principal amount exceeds the then total
credit facility commitment. The interest rates on outstanding loans under the
credit facility will, at Compuware's option, be either (i) the Eurodollar
rate, plus a margin of 1.25% initially, or (ii) the higher of the Comerica prime
rate or 0.5% over the federal funds rate, plus a margin of 0.25% initially. In
addition, the credit agreement provides for commitment fees on the unutilized
commitments under the credit facility of 0.25% per annum initially. The interest
rate margins and commitment fees will be adjusted after six months according to
Compuware's then credit rating.
The credit agreement contains representations, warranties,
covenants, events of default and conditions customary for credit facilities of
this size and type. Compuware has agreed to pay certain fees to Morgan
Stanley and Comerica with respect to the commitment letter and to Morgan
Stanley, Comerica and the other lenders with respect to the credit facility.
Compuware also has agreed to reimburse certain expenses of Morgan Stanley and
Comerica in connection with the commitment letter and to provide customary
indemnities to Morgan Stanley, Comerica and the other lenders in connection with
the credit facility.
The foregoing summary of the sources and amount of funds is qualified in
its entirety by reference to the text of the credit agreement, including the
exhibits and schedules thereto, and the commitment letter. A copy of the credit
agreement is attached as Exhibit (b)(2) to this Final Amendment. A copy of the
commitment letter is attached as Exhibit (b)(1) to Amendment No. 1 to the
Schedule 14D-1.
Although no definitive plan or arrangement for repayment of borrowings under
the credit facility has been made, Compuware anticipates such borrowings will be
repaid with internally generated funds (including funds of the Company) and from
other sources which may include the proceeds of future bank financings or the
public or private sale of debt or equity securities. No decision has been made
concerning the method Compuware will use to repay the borrowings under the
credit facility. Such decision will be made based on Compuware's review from
time to time of the advisability of particular actions, as well as prevailing
interest rates, financial and other economic conditions and such other factors
as Compuware may deem appropriate.
<PAGE> 6
Item 6 of the Schedule 14D-1 is hereby amended to read in its entirety
as follows:
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) and (b) The information set forth in the Introduction and Section
8 ("Certain Information Concerning Purchaser and Compuware") of the Offer to
Purchase is incorporated herein by reference.
The Offer expired at 12:00 midnight, Eastern Time, Wednesday, July 28,
1999. Purchaser was advised by EquiServe, the Depositary for the Offer, that
based on a preliminary count 13,880,180 Shares, or in excess of 93% of the
outstanding Shares of the Company (excluding Shares tendered subject to
guarantees of delivery or receipt of additional documentation), were tendered in
response to the Offer (exceeding the 91% minimum tender condition). The results
of the Offer were publicly announced in a press release on Thursday, July 29,
1999, a copy of which is attached as Exhibit (a)(9) to this Final Amendment.
On Wednesday, August 4, 1999, Purchaser accepted for payment and
purchased a total of 14,401,187 Shares, constituting all Shares validly tendered
and not properly withdrawn pursuant to the Offer. The Shares purchased represent
approximately 97.5% of the 14,775,361 shares of the Company outstanding on such
date.
Item 10 of the Schedule 14D-1 is hereby amended by inserting the
following at the conclusion thereof:
ITEM 10. ADDITIONAL INFORMATION.
The waiting period under the pre-merger notification requirement of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, with respect
to the Offer and follow-on Merger expired on July 15, 1999.
<PAGE> 7
Item 11 of the Schedule 14D-1 is hereby amended by adding the following
exhibits:
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER EXHIBIT NAME
- ----------------- -----------------------------------------------------------
<S> <C>
(a)(9) Text of Press Release by Compuware dated July 29, 1999
(b)(2) Credit Agreement, dated as of August 3, 1999, among
Compuware Corporation, Various Lenders, Comerica Bank, as
Administrative Agent and Co-Arranger, and Morgan Stanley
Senior Funding, Inc., as Lead Arranger, Syndication Agent
and Book Manager
</TABLE>
<PAGE> 8
SIGNATURE
After due inquiry and to the best of the undersigned's knowledge and belief,
the undersigned certify that the information set forth in this Statement is
true, complete and correct.
August 17, 1999
COMP ACQUISITION CO.
By: /S/ THOMAS COSTELLO, JR.
---------------------------------
Name: Thomas Costello, Jr.
Title: Vice President and Secretary
COMPUWARE CORPORATION
By: /S/ LAURA FOURNIER
---------------------------------
Name: Laura Fournier
Title: Senior Vice President and
Chief Financial Officer
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER EXHIBIT NAME
- ----------------- -----------------------------------------------------------
<S> <C>
(a)(9) Text of Press Release by Compuware dated July 29, 1999
(b)(2) Credit Agreement, dated as of August 3, 1999, among
Compuware Corporation, Various Lenders, Comerica Bank, as
Administrative Agent and Co-Arranger, and Morgan Stanley
Senior Funding, Inc., as Lead Arranger, Syndication Agent
and Book Manager
</TABLE>
6
<PAGE> 1
EXHIBIT (a)(9)
COMPUWARE SUCCESSFULLY COMPLETES TENDER OFFER
FOR DATA PROCESSING RESOURCES CORPORATION
MORE THAN 93 PERCENT OF DPRC SHAREHOLDERS ENDORSE DEAL
FARMINGTON HILLS, Mich.--July 29, 1999--Compuware Corporation (NASDAQ:CPWR)
announced today that its wholly owned subsidiary has successfully completed its
cash tender for the outstanding common shares of Data Processing Resources
Corporation (NASDAQ:DPRC). In excess of 93 percent of the shares of DPRC were
tendered as of the expiration of the tender offer on July 28, 1999, exceeding
the 91 percent minimum tender condition. Accordingly, as originally agreed,
Compuware intends to proceed with the acquisition of DPRC through a merger of
DPRC with Compuware's wholly owned subsidiary. Upon the merger, the shares of
DPRC that are not tendered, accepted and paid for pursuant to the tender offer
will be converted into the right to receive $24 in cash, subject to certain
terms and conditions.
COMPUWARE CORPORATION
Compuware productivity solutions help 14,000 of the world's largest corporations
more efficiently maintain and enhance their most critical business applications.
Providing immediate and measurable return on information technology investments,
Compuware products and services improve quality, lower costs and increase the
speed at which systems can be developed, implemented and supported. Inclusive of
pending acquisitions, Compuware employs approximately 15,000 information
technology professionals worldwide. With trailing 12-month revenues of more than
$1.7 billion, Compuware is the world leader in client/server development
technology. For more information about Compuware, please contact the corporate
offices at 800-521-9353. You may also visit Compuware on the World Wide Web at
www.compuware.com.
DATA PROCESSING RESOURCES CORPORATION
Data Processing Resources Corporation, established in 1985, is a market leader
in providing information technology professional services through a network of
33 branch facilities and four international recruiting offices to a diverse
group of corporate clients through a database of highly qualified technical
consultants. Additional information on DPRC is available from the World Wide Web
at www.dprc.com.
<PAGE> 2
PAGE 2
PRESS CONTACTS
Christopher M.F. Norris, Director, Corporate Communications and Investor
Relations, Compuware Corporation, 248-737-7506.
Thomas Vadnais, President and Chief Operating Officer, Data Processing Resources
Corporation, 949-553-1102.
INFORMATION AGENT FOR THE TENDER OFFER
Innisfree M&A Incorporated, 888-750-5834.
<PAGE> 1
EXHIBIT (b)(2)
================================================================================
CREDIT AGREEMENT
among
COMPUWARE CORPORATION,
VARIOUS LENDERS,
COMERICA BANK,
as ADMINISTRATIVE AGENT and CO-ARRANGER,
and
MORGAN STANLEY SENIOR FUNDING, INC., as
LEAD ARRANGER, SYNDICATION AGENT AND BOOK MANAGER
----------------------------------
Dated as of August 3, 1999
----------------------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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SECTION 1. Amount and Terms of Credit............................................................................1
1.01 The Commitments....................................................................................1
1.02 Minimum Amount of Each Borrowing...................................................................3
1.03 Notice of Borrowing................................................................................3
1.04 Disbursement of Funds..............................................................................4
1.05 Notes 5
1.06 Conversions........................................................................................5
1.07 Pro Rata Borrowings................................................................................6
1.08 Interest...........................................................................................6
1.09 Interest Periods...................................................................................7
1.10 Increased Costs, Illegality, etc...................................................................8
1.11 Compensation......................................................................................10
1.12 Change of Lending Office..........................................................................10
1.13 Replacement of Lenders............................................................................10
SECTION 2. Letters of Credit....................................................................................11
2.01 Letters of Credit.................................................................................11
2.02 Maximum Letter of Credit Outstandings; Final Maturities...........................................12
2.03 Letter of Credit Requests; Minimum Stated Amount..................................................12
2.04 Letter of Credit Participations...................................................................13
2.05 Agreement to Repay Letter of Credit Drawings......................................................15
2.06 Increased Costs...................................................................................16
SECTION 3. Fees; Reductions of Commitment.......................................................................16
3.01 Fees..............................................................................................16
3.02 Voluntary Termination of Unutilized Commitments...................................................17
3.03 Mandatory Reduction of Commitments................................................................18
SECTION 4. Prepayments; Payments; Taxes.........................................................................19
4.01 Voluntary Prepayments.............................................................................19
4.02 Mandatory Repayments..............................................................................20
4.03 Method and Place of Payment.......................................................................21
4.04 Net Payments......................................................................................21
SECTION 5A. Conditions Precedent to the Effective Date..........................................................23
5A.01 Execution of Agreement; Notes....................................................................23
5A.02 Officer's Certificate............................................................................23
</TABLE>
(i)
<PAGE> 3
<TABLE>
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<S> <C> <C>
5A.03 Opinions of Counsel..............................................................................23
5A.04 Corporate Documents; Proceedings; etc............................................................23
5A.05 Fees, etc........................................................................................24
5A.06 Adverse Change, etc..............................................................................24
5A.07 Litigation.......................................................................................24
5A.08 Subsidiaries Guaranty............................................................................24
5A.09 Financial Statements; Projections................................................................24
5A.10 Existing Compuware Credit Facility...............................................................24
SECTION 5B. Conditions Precedent to the DPRC Acquisition........................................................25
5B.01 Effective Date...................................................................................25
5B.02 Officer's Certificate............................................................................25
5B.03 Corporate Documents; Proceedings.................................................................25
5B.04 DPRC Acquisition.................................................................................25
5B.05 Adverse Change, etc..............................................................................26
5B.06 Litigation.......................................................................................26
SECTION 6. Conditions Precedent to All Credit Events............................................................26
6.01 No Default; Representations and Warranties........................................................27
6.02 Notice of Borrowing; Letter of Credit Request.....................................................27
SECTION 7. Representations, Warranties and Agreements...........................................................27
7.01 Organizational Status.............................................................................27
7.02 Power and Authority...............................................................................28
7.03 No Violation......................................................................................28
7.04 Approvals.........................................................................................28
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc..............28
7.06 Litigation........................................................................................30
7.07 True and Complete Disclosure......................................................................30
7.08 Use of Proceeds; Margin Regulations...............................................................30
7.09 Tax Returns and Payments..........................................................................31
7.10 Compliance with ERISA.............................................................................31
7.11 Properties........................................................................................32
7.12 Year 2000.........................................................................................32
7.13 Subsidiaries......................................................................................32
7.14 Compliance with Statutes, etc.....................................................................32
7.15 Investment Company Act............................................................................33
7.16 Public Utility Holding Company Act................................................................33
7.17 Environmental Matters.............................................................................33
7.18 Labor Relations...................................................................................33
7.19 Patents, Licenses, Franchises and Formulas........................................................33
</TABLE>
(ii)
<PAGE> 4
<TABLE>
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<S> <C> <C>
SECTION 8. Affirmative Covenants.................................................................................34
8.01 Information Covenants..............................................................................34
8.02 Books, Records and Inspections.....................................................................36
8.03 Maintenance of Insurance...........................................................................36
8.04 Corporate Franchises...............................................................................36
8.05 Compliance with Statutes, etc......................................................................36
8.06 Compliance with Environmental Laws.................................................................36
8.07 ERISA..............................................................................................37
8.08 Payment of Taxes...................................................................................38
8.09 Good Repair........................................................................................38
8.10 Use of Proceeds....................................................................................38
8.11 Additional Subsidiary Guarantors...................................................................38
8.12 The DPRC Merger....................................................................................38
8.13 DPRC Convertible Subordinated Notes................................................................38
SECTION 9. Negative Covenants....................................................................................38
9.01 Liens..............................................................................................38
9.02 Sale-Lease back Transactions.......................................................................41
9.03 Fundamental Changes................................................................................42
9.04 Indebtedness.......................................................................................42
9.05 Investments........................................................................................44
9.06 Transactions with Affiliates.......................................................................44
9.07 Consolidated Interest Coverage Ratio...............................................................45
9.08 Maximum Consolidated Leverage Ratio................................................................45
9.09 Minimum Consolidated Shareholders' Equity..........................................................45
9.10 Limitation on Restrictive Agreements...............................................................45
9.11 Business; etc......................................................................................45
9.12 End of Fiscal Years; Fiscal Quarters...............................................................46
SECTION 10. Events of Default....................................................................................46
10.01 Payments..........................................................................................46
10.02 Representations, etc..............................................................................46
10.03 Covenants.........................................................................................46
10.04 Default Under Other Agreements....................................................................46
10.05 Bankruptcy, etc...................................................................................47
10.06 ERISA.............................................................................................47
10.07 Subsidiaries Guaranty.............................................................................48
10.08 Judgments.........................................................................................48
10.09 Change of Control.................................................................................48
SECTION 11. Definitions and Accounting Terms.....................................................................49
11.01 Defined Terms.....................................................................................49
</TABLE>
(iii)
<PAGE> 5
<TABLE>
<CAPTION>
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<S> <C> <C>
SECTION 12. The Administrative Agent and the Lead Arranger......................................................65
12.01 Appointment......................................................................................65
12.02 Nature of Duties.................................................................................65
12.03 Lack of Reliance on the Administrative Agent and the Lead Arranger...............................66
12.04 Certain Rights of the Agents.....................................................................66
12.05 Reliance.........................................................................................66
12.06 Indemnification..................................................................................67
12.07 The Administrative Agent and the Lead Arranger in their Individual Capacity......................67
12.08 Holders..........................................................................................67
12.09 Resignation by, and Removal of the Administrative Agent and the Lead Arranger....................67
SECTION 13. Miscellaneous.......................................................................................68
13.01 Payment of Expenses, etc.........................................................................68
13.02 Right of Setoff..................................................................................69
13.03 Notices..........................................................................................70
13.04 Benefit of Agreement; Assignments; Participations................................................70
13.05 No Waiver; Remedies Cumulative...................................................................72
13.06 Payments Pro Rata................................................................................72
13.07 Calculations; Computations; Accounting Terms.....................................................73
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL...........................73
13.09 Counterparts.....................................................................................74
13.10 Effectiveness....................................................................................74
13.11 Headings Descriptive.............................................................................75
13.12 Amendment or Waiver; etc.........................................................................75
13.13 Survival.........................................................................................76
13.14 Domicile of Loans................................................................................76
13.15 Register.........................................................................................76
13.16 Confidentiality..................................................................................77
</TABLE>
SCHEDULE I Commitments
SCHEDULE II Lender Addresses
SCHEDULE III Subsidiaries
SCHEDULE IV Existing Liens
SCHEDULE V Existing Indebtedness
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Revolving Note
EXHIBIT B-2 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Opinion of Honigman Miller Schwartz and Cohn
EXHIBIT E-2 Opinion of General Counsel of the Borrower
EXHIBIT F Officers' Certificate
EXHIBIT G Subsidiaries Guaranty
EXHIBIT H Assignment and Assumption Agreement
(iv)
<PAGE> 6
CREDIT AGREEMENT, dated as of August 3, 1999, among COMPUWARE
CORPORATION, a Michigan corporation (the "Borrower"), the Lenders party hereto
from time to time, COMERICA BANK, as administrative agent and co-arranger (in
such capacity, the "Administrative Agent"), and MORGAN STANLEY SENIOR FUNDING,
INC., as lead arranger, syndication agent and book manager (in such capacity,
the "Lead Arranger"). All capitalized terms used herein and defined in Section
11 are used herein as therein defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Lenders are willing to make available to the Borrower the respective
credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Lender severally agrees to make, at any time
and from time to time on or after the Effective Date and prior to the Final
Maturity Date, a revolving loan or revolving loans (each a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrower, which Revolving Loans (i)
shall, at the option of the Borrower, be incurred and maintained as, and/or
converted into, Base Rate Loans or Eurodollar Loans, provided that, except as
otherwise specifically provided in Section 1.10(b), all Revolving Loans
comprising the same Borrowing shall at all times be of the same Type, (ii) may
be repaid and reborrowed in accordance with the provisions hereof, (iii) shall
not exceed for any Lender at any time outstanding that aggregate principal
amount which, when added to the product of (x) such Lender's Percentage and (y)
the sum of (I) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) at such time and (II) the aggregate principal amount of all Swingline
Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) then outstanding, equals the Available Commitment of such Lender at such
time, and (iv) shall not exceed for all Lenders at any time outstanding that
aggregate principal amount which, when added to the sum of (I) the aggregate
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which
are repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (II) the aggregate
principal amount of all Swingline Loans (exclusive of Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding, equals the Total
Available Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein,
the Swingline Lender agrees to make, at any time and from time to time on or
after the Effective Date and prior to the Swingline Expiry Date, a revolving
loan or revolving loans (each a "Swingline Loan" and, collectively, the
"Swingline Loans") to the Borrower, which Swingline
<PAGE> 7
Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii) shall not exceed
in aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
aggregate amount of all Letter of Credit Outstandings at such time, an amount
equal to the Total Available Commitment at such time, and (iv) shall not exceed
in aggregate principal amount at any time outstanding the Maximum Swingline
Amount. Notwithstanding anything to the contrary contained in this Section
1.01(b), (i) the Swingline Lender shall not be obligated to make any Swingline
Loans at a time when a Lender Default exists unless the Swingline Lender has
entered into arrangements satisfactory to it and the Borrower to eliminate the
Swingline Lender's risk with respect to the Defaulting Lender's or Lenders'
participation in such Swingline Loans, including by cash collateralizing such
Defaulting Lender's or Lenders' Percentage of the outstanding Swingline Loans
and (ii) the Swingline Lender shall not make any Swingline Loan after it has
received written notice from the Borrower or the Required Lenders stating that a
Default or an Event of Default exists and is continuing until such time as the
Swingline Lender shall have received written notice (A) of rescission of all
such notices from the party or parties originally delivering such notice or
notices or (B) of the waiver of such Default or Event of Default by the Required
Lenders.
(c) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the Lenders that the Swingline Lender's outstanding
Swingline Loans shall be funded with one or more Borrowings of Revolving Loans
(provided that such notice shall be deemed to have been automatically given upon
the occurrence of a Default or an Event of Default under Section 10.05 or upon
the exercise of any of the remedies provided in the last paragraph of Section
10), in which case one or more Borrowings of Revolving Loans constituting Base
Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day by all Lenders pro rata based on each
Lender's Percentage (determined before giving effect to any termination of the
Commitments pursuant to the last paragraph of Section 10) and the proceeds
thereof shall be applied directly by the Swingline Lender to repay the Swingline
Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably
agrees to make Revolving Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by the Swingline Lender
notwithstanding (i) the amount of the Mandatory Borrowing may not comply with
the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any
conditions specified in Section 6 are then satisfied, (iii) whether a Default or
an Event of Default then exists, (iv) the date of such Mandatory Borrowing and
(v) the amount of the Total Available Commitment at such time. In the event that
any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the Borrower), then
each Lender hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause the Lenders to share in such Swingline Loans
ratably based upon their respective Percentages (determined before giving effect
to any termination of the Commitments pursuant to the last paragraph of Section
10), provided that
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(x) all interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay the Swingline
Lender interest on the principal amount of participation purchased for each day
from and including the day upon which the Mandatory Borrowing would otherwise
have occurred to but excluding the date of payment for such participation, at
the overnight Federal Funds Rate for the first three days and at the rate
otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder
for each day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of Revolving Loans and Swingline Loans shall not be
less than the Minimum Borrowing Amount applicable thereto. More than one
Borrowing may occur on the same date (including more than one Borrowing of Base
Rate Loans and Eurodollar Loans), but at no time shall there be outstanding more
than fifteen Borrowings of Eurodollar Loans in the aggregate.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur
(x) Eurodollar Loans hereunder, the Borrower shall give the Administrative Agent
at the Notice Office at least three Business Days' prior notice of each
Eurodollar Loan to be incurred hereunder and (y) Base Rate Loans hereunder
(excluding Swingline Loans and Revolving Loans made pursuant to a Mandatory
Borrowing), the Borrower shall give the Administrative Agent at the Notice
Office at least one Business Day's prior notice of each Base Rate Loan to be
incurred hereunder, provided that (in each case) any such notice shall be deemed
to have been given on a certain day only if given before 12:00 Noon (Detroit,
Michigan time) on such day. Each such notice (each a "Notice of Borrowing"),
except as otherwise expressly provided in Section 1.10, shall be irrevocable and
shall be given by the Borrower in writing, or by telephone promptly confirmed in
writing, in the form of Exhibit A, appropriately completed to specify the
aggregate principal amount of the Revolving Loans to be incurred pursuant to
such Borrowing, the date of such Borrowing (which shall be a Business Day),
whether the Revolving Loans being incurred pursuant to such Borrowing are to be
initially maintained as Base Rate Loans or, to the extent permitted hereunder,
Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period to be
applicable thereto. The Administrative Agent shall promptly give each Lender
notice of such proposed Borrowing, of such Lender's proportionate share thereof
and of the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, the Borrower shall give the Swingline Lender no later than 3:00 P.M.
(Detroit, Michigan time) on the date that a Swingline Loan is to be incurred
hereunder, written notice or telephonic notice promptly confirmed in writing of
each Swingline Loan to be incurred hereunder. Each such notice shall be
irrevocable and specify in each case (A) the date of Borrowing (which shall be a
Business Day) and (B) the aggregate principal amount of the Swingline Loans to
be incurred pursuant to such Borrowing.
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(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(c), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 1.01(c).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing or prepayment of
Loans, the Administrative Agent or the Swingline Lender, as the case may be, may
act without liability upon the basis of telephonic notice of such Borrowing or
prepayment, as the case may be, believed by the Administrative Agent or the
Swingline Lender, as the case may be, in good faith to be from the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, the Treasurer or any Assistant Treasurer of the Borrower, or from any
other authorized officer of the Borrower designated in writing by any of the
foregoing officers of the Borrower to the Administrative Agent as being
authorized to give such notices, prior to receipt of written confirmation. In
each such case, the Borrower hereby waives the right to dispute the
Administrative Agent's or Swingline Lender's record of the terms of such
telephonic notice of such Borrowing or prepayment of Loans, as the case may be,
absent manifest error.
1.04 Disbursement of Funds. No later than 12:00 Noon (Detroit,
Michigan time) on the date specified in each Notice of Borrowing (or (x) in the
case of Swingline Loans, no later than 4:00 P.M. (Detroit, Michigan time) on the
date specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory
Borrowings, no later than 12:00 Noon (Detroit, Michigan time) on the date
specified in Section 1.01(c)), each Lender will make available its pro rata
portion (determined in accordance with Section 1.07) of each such Borrowing
requested to be made on such date (or in the case of Swingline Loans, the
Swingline Lender will make available the full amount thereof). All such amounts
will be made available in Dollars and in immediately available funds at the
Payment Office, and, except for Revolving Loans made pursuant to a Mandatory
Borrowing, the Administrative Agent will make available to the Borrower at the
Payment Office the aggregate of the amounts so made available by the Lenders.
Unless the Administrative Agent shall have been notified by any Lender prior to
the date of Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent also shall be entitled to recover on demand from
such Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, at the overnight Federal Funds
Rate for the first three days and at the rate of interest otherwise
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applicable to the respective Borrowing for each day thereafter and (ii) if
recovered from the Borrower, the rate of interest applicable to the respective
Borrowing, as determined pursuant to Section 1.08. Nothing in this Section 1.04
shall be deemed to relieve any Lender from its obligation to make Loans
hereunder or to prejudice any rights which the Borrower may have against any
Lender as a result of any failure by such Lender to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made by each Lender shall be evidenced in the
Register maintained by the Administrative Agent pursuant to Section 13.15 and
shall, if requested by such Lender, also be evidenced (i) if Revolving Loans, by
a promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-1, with blanks appropriately completed in conformity
herewith (each a "Revolving Note" and, collectively, the "Revolving Notes") and
(ii) if Swingline Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form Exhibit B-2, with blanks appropriately
completed in conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Lender shall (i) be executed
by the Borrower, (ii) be payable to such Lender or its registered assigns and be
dated the Effective Date (or, if issued after the Effective Date, be dated the
date of the issuance thereof), (iii) be in a stated principal amount equal to
the Commitment of such Lender (or, if issued after the termination thereof, be
in a stated principal amount equal to the outstanding Revolving Loans of such
Lender at such time) and be payable in the outstanding principal amount of the
Revolving Loans evidenced thereby, (iv) mature on the Final Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01,
and mandatory repayment as provided in Section 4.02, and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents.
(c) The Swingline Note issued to the Swingline Lender shall (i) be
executed by the Borrower, (ii) be payable to the Swingline Lender or its
registered assigns and be dated the Effective Date, (iii) be in a stated
principal amount equal to the Maximum Swingline Amount and be payable in the
outstanding principal amount of the Swingline Loans evidenced thereby from time
to time, (iv) mature on the Swingline Expiry Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the Base Rate Loans
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
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1.06 Conversions. The Borrower shall have the option to convert, on
any Business Day, at least the Minimum Borrowing Amount of the outstanding
principal amount of Revolving Loans made to the Borrower pursuant to one or more
Borrowings of one or more Types of Revolving Loans into a Borrowing of another
Type of Revolving Loan, provided that, (i) except as otherwise provided in
Section 1.10(b), Eurodollar Loans may be converted into Base Rate Loans only on
the last day of an Interest Period applicable to the Revolving Loans being
converted and no such partial conversion of Eurodollar Loans shall reduce the
outstanding principal amount of such Eurodollar Loans made pursuant to a single
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii)
unless the Required Lenders otherwise agree, Base Rate Loans may only be
converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion and (iii) no conversion pursuant to this
Section 1.06 shall result in a greater number of Borrowings of Eurodollar Loans
than is permitted under Section 1.02. Each such conversion shall be effected by
the Borrower by giving the Administrative Agent at the Notice Office prior to
12:00 Noon (Detroit, Michigan time) at least three Business Days' prior notice
(each a "Notice of Conversion") specifying the Revolving Loans to be so
converted, the Borrowing or Borrowings pursuant to which such Revolving Loans
were made and, if to be converted into Eurodollar Loans, the Interest Period to
be initially applicable thereto. The Administrative Agent shall give each Lender
prompt notice of any such proposed conversion affecting any of its Revolving
Loans. Swingline Loans may not be converted pursuant to this Section 1.06.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans under
this Agreement shall be incurred from the Lenders pro rata on the basis of their
Commitments. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make Revolving Loans hereunder
and that each Lender shall be obligated to make the Revolving Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to make
its Revolving Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by acceleration
or otherwise) and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan at a rate per annum which shall be equal to the sum of the Applicable
Margin plus the Base Rate each as in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of Borrowing thereof
until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan
at a rate per annum which shall, during each Interest Period applicable thereto,
be equal to the sum of the Applicable Margin plus the Eurodollar Rate for such
Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall, in each case, bear interest at a rate
per annum equal to the greater of (x) the rate which is 2% in excess of the rate
then borne by such Loans and (y) the rate which is 2% in excess of the rate
otherwise applicable to Base Rate Loans from time to time, and all other
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<PAGE> 12
overdue amounts payable hereunder or under any other Credit Document shall bear
interest at a rate per annum equal to the rate which is 2% in excess of the rate
applicable to Base Rate Loans from time to time. Interest which accrues under
this Section 1.08(c) shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i)
in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period, and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand, provided
that, in the case of Base Rate Loans, interest shall not be payable pursuant to
preceding clause (iii) at the time of any repayment or prepayment thereof (but
shall otherwise be payable as provided in preceding clause (i)) unless the
respective repayment or prepayment is made in conjunction with the repayment or
prepayment in full of all outstanding Revolving Loans or in conjunction with a
permanent reduction of the Total Commitment.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to the
respective Eurodollar Loans and shall promptly notify the Borrower and the
Lenders thereof either in writing or by telephone promptly confirmed in writing.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or prior to 12:00 Noon (Detroit, Michigan time) on the third Business
Day prior to the expiration of an Interest Period applicable to such Eurodollar
Loan (in the case of any subsequent Interest Period), the Borrower shall have
the right to elect, by giving the Administrative Agent notice thereof, the
interest period (each an "Interest Period") applicable to such Eurodollar Loan,
which Interest Period shall, at the option of the Borrower, be a one, two, three
or six-month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Base Rate Loan) and each Interest
Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period for a Eurodollar Loan begins on a day
for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period, such Interest Period shall end on the
last Business Day of such calendar month;
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(iv) if any Interest Period for a Eurodollar Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, however, that if
any Interest Period for a Eurodollar Loan would otherwise expire on a day
which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(v) unless the Required Lenders otherwise agree, no Interest Period
may be selected at any time when a Default or an Event of Default is then
in existence; and
(vi) no Interest Period in respect of any Borrowing of Eurodollar
Loans shall be selected which extends beyond the Final Maturity Date.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any
Lender shall have determined (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loan because of (x) any change since the Effective Date
in any applicable law or governmental rule, regulation, order, guideline
or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, order, guideline or
request, such as, for example, but not limited to: (A) a change in the
basis of taxation of payment to any Lender of the principal of or
interest on the Loans or the Notes or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to,
the net income or profits of such Lender pursuant to the laws of the
jurisdiction in which it is organized or in which its principal office or
applicable lending office is located or any subdivision thereof or
therein) or (B) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate and/or (y) other
circumstances occurring since the Effective Date affecting the interbank
Eurodollar market or the position of such Lender in such market; or
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<PAGE> 14
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Lender in good
faith with any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone promptly
confirmed in writing) to the Borrower and, except in the case of clause (i)
above, to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Lenders).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer
be available until such time as the Administrative Agent notifies the Borrower
and the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by the Borrower with respect to Eurodollar Loans which have not
yet been incurred (including by way of conversion) shall be deemed rescinded by
the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to
such Lender, upon such Lender's written request therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as shall be required to compensate such Lender for such increased
costs or reductions in amounts received or receivable hereunder (a written
notice as to the additional amounts owed to such Lender, showing in reasonable
detail the basis for the calculation thereof, submitted to the Borrower by such
Lender shall, absent manifest error, be final and conclusive and binding on all
the parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar
Loan is then being made initially or pursuant to a conversion, cancel such
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Lender
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan, provided that, if more than
one Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 1.10(b).
(c) If any Lender determines that after the Effective Date the
introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law) concerning capital adequacy, or any change in interpretation or
administration thereof by the NAIC or any governmental authority, central bank
or comparable agency, will have the effect of increasing the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender based on
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the existence of such Lender's Commitment hereunder or its obligations
hereunder, then the Borrower shall pay to such Lender, upon its written demand
therefor, such additional amounts as shall be required to compensate such Lender
or such other corporation for the increased cost to such Lender or such other
corporation or the reduction in the rate of return to such Lender or such other
corporation as a result of such increase of capital. In determining such
additional amounts, each Lender will act reasonably and in good faith and will
use averaging and attribution methods which are reasonable, provided that such
Lender's determination of compensation owing under this Section 1.10(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto. Each Lender, upon determining that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrower, which notice shall show in reasonable detail the basis
for calculation of such additional amounts.
1.11 Compensation. The Borrower shall compensate each Lender, upon
its written request (which request shall set forth in reasonable detail the
basis for requesting such compensation), for all losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Lender to fund its Eurodollar Loans but excluding loss of
anticipated profits) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii)
if any repayment (including any repayment made pursuant to Section 4.01, Section
4.02 or as a result of an acceleration of the Loans pursuant to Section 10) or
conversion of any of its Eurodollar Loans occurs on a date which is not the last
day of an Interest Period with respect thereto; (iii) if any prepayment of any
of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Eurodollar Loans when required by the terms
of this Agreement or any Note held by such Lender or (y) any election made
pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Lender agrees that upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans or Letters of Credit affected by such event, provided that
such designation is made on such terms that such Lender and its lending office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in Sections
1.10, 2.06 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a Defaulting
Lender or otherwise defaults in its obligations to make Loans, (y) upon the
occurrence of an event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to any Lender
which results in such Lender charging to the Borrower increased costs in excess
of those being generally charged by the other Lenders or (z) in the case of a
refusal by a
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Lender to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 13.12(b), the
Borrower shall have the right, if no Default or Event of Default then exists
(or, in the case of preceding clause (z), no Default or Event of Default will
exist immediately after giving effect to such replacement), to replace such
Lender (the "Replaced Lender") with one or more other Eligible Transferees, none
of whom shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender") and each of whom shall be required to
be reasonably acceptable to the Administrative Agent, provided that (i) at the
time of any replacement pursuant to this Section 1.13, the Replacement Lender
shall enter into one or more Assignment and Assumption Agreements pursuant to
Section 13.04(b) (and with all fees payable pursuant to said Section 13.04(b) to
be paid by the Replacement Lender) pursuant to which the Replacement Lender
shall acquire the Commitment and all outstanding Revolving Loans of, and
participations in Letters of Credit by, the Replaced Lender and, in connection
therewith, shall pay to (x) the Replaced Lender in respect thereof an amount
equal to the sum of (I) an amount equal to the principal of, and all accrued
interest on, all outstanding Revolving Loans of the Replaced Lender, (II) an
amount equal to all Unpaid Drawings that have been funded by (and not reimbursed
to) such Replaced Lender, together with all then unpaid interest with respect
thereto at such time and (III) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Lender pursuant to Section 3.01, (y) each
Issuing Lender an amount equal to such Replaced Lender's Percentage of any
Unpaid Drawing (which at such time remains an Unpaid Drawing) to the extent such
amount was not theretofore funded by such Replaced Lender to such Issuing Lender
and (z) the Swingline Lender an amount equal to such Replaced Lender's
Percentage of any Mandatory Borrowings to the extent such amount was not
theretofore funded by such Replaced Lender to the Swingline Lender and (ii) all
obligations of the Borrower due and owing to the Replaced Lender at such time
(other than those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment and Assumption Agreement, the payment
of amounts referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate
Revolving Note executed by the Borrower, the Replacement Lender shall become a
Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.06
and 13.01), which shall survive as to such Replaced Lender.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that an Issuing Lender
issue, at any time and from time to time on and after the Effective Date and
prior to the 30th day prior to the Final Maturity Date, for the account of the
Borrower and for the benefit of (x) any holder (or any trustee, agent or other
similar representative for any such holders) of L/C Supportable Obligations of
the Borrower or any of its Subsidiaries, an irrevocable standby letter of
credit, in a form customarily used by such Issuing Lender or in such other form
as has been approved by such Issuing Lender and (y) sellers of goods to the
Borrower or any of its Subsidiaries, an irrevocable trade letter of credit, in a
form
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<PAGE> 17
customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such letter of credit issued pursuant to
this Section 2.01, a "Letter of Credit" and, collectively, the "Letters of
Credit"). All Letters of Credit shall be denominated in Dollars and shall be
issued on a sight basis only.
(b) Subject to and upon the terms and conditions set forth herein,
each Issuing Lender agrees that it will, at any time and from time to time on
and after the Effective Date and prior to the 30th day prior to the Final
Maturity Date, following its receipt of the respective Letter of Credit Request,
issue for the account of the Borrower, one or more Letters of Credit as are
permitted to remain outstanding hereunder without giving rise to a Default or an
Event of Default, provided that no Issuing Lender shall be under any obligation
to issue any Letter of Credit of the types described above if at the time of
such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that
such Issuing Lender refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon
such Issuing Lender with respect to such Letter of Credit any restriction
or reserve or capital requirement (for which such Issuing Lender is not
otherwise compensated) not in effect on the Effective Date, or any
unreimbursed loss, cost or expense which was not applicable or in effect
with respect to such Issuing Lender as of the date hereof; or
(ii) such Issuing Lender shall have received from the Borrower or
the Required Lenders prior to the issuance of such Letter of Credit
notice of the type described in the second sentence of Section 2.03(b).
2.02 Maximum Letter of Credit Outstandings; Final Maturities.
Notwithstanding anything to the contrary contained in this Agreement, (i) no
Letter of Credit shall be issued the Stated Amount of which, when added to the
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on
the date of, and prior to the issuance of, the respective Letter of Credit) at
such time would exceed either (x) $150,000,000 or (y) when added to the sum of
(I) the aggregate principal amount of all Revolving Loans then outstanding and
(II) the aggregate principal amount of all Swingline Loans then outstanding, an
amount equal to the Total Available Commitment at such time and (ii) each Letter
of Credit shall by its terms terminate on or before (x) in the case of standby
Letters of Credit, the earlier of (A) the date which occurs 12 months after the
date of the issuance thereof (although any such standby Letter of Credit may be
extendible for successive periods of up to 12 months, but not beyond the third
Business Day prior to the Final Maturity Date, on terms acceptable to such
Issuing Lender) and (B) three Business Days prior to the Final Maturity Date and
(y) in the case of trade Letters of Credit, the earlier of (A) the date which
occurs 180 days after the date of issuance thereof and (B) 15 days prior to the
Final Maturity Date.
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<PAGE> 18
2.03 Letter of Credit Requests; Minimum Stated Amount. (a) Whenever
the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Administrative Agent and the respective Issuing Lender
at least five Business Days' (or such shorter period as is acceptable to such
Issuing Lender) written notice thereof. Each notice shall be in the form of
Exhibit C appropriately completed (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to
be a representation and warranty by the Borrower that such Letter of Credit may
be issued in accordance with, and will not violate the requirements of, Section
2.02. Unless the respective Issuing Lender has received notice from the Borrower
or the Required Lenders before it issues a Letter of Credit that one or more of
the conditions specified in Section 6 are not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.02, then such Issuing
Lender shall, subject to the terms and conditions of this Agreement, issue the
requested Letter of Credit for the account of the Borrower in accordance with
such Issuing Lender's usual and customary practices. Upon its issuance of or
amendment to any standby Letter of Credit, the respective Issuing Lender shall
promptly notify the Borrower, each Participant and the Administrative Agent of
such issuance or amendment and such notification shall be accompanied by a copy
of the issued Letter of Credit or amendment. Notwithstanding anything to the
contrary contained in this Agreement, in the event that a Lender Default exists,
no Issuing Lender shall be required to issue any Letter of Credit unless such
Issuing Lender has entered into an arrangement satisfactory to it and the
Borrower to eliminate such Issuing Lender's risk with respect to the
participation in Letters of Credit by the Defaulting Lender or Lenders,
including by cash collateralizing such Defaulting Lender's or Lenders'
Percentage of the Letter of Credit Outstandings.
(c) The initial Stated Amount of each Letter of Credit shall not be
less than $1,000,000 or such lesser amount as is acceptable to the respective
Issuing Lender.
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by each Issuing Lender of any Letter of Credit, such Issuing Lender
shall be deemed to have sold and transferred to each Lender, other than such
Issuing Lender (each such Lender, in its capacity under this Section 2.04, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Percentage, in such Letter of Credit, each drawing or payment
made thereunder and the obligations of the Borrower under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto. Upon
any change in the Commitments or Percentages of the Lenders pursuant to Section
1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters
of Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.04 to reflect the new Percentages of
the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit issued
by it, no Issuing Lender shall have an obligation relative to the other Lenders
other than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered
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<PAGE> 19
and that they appear to substantially comply on their face with the requirements
of such Letter of Credit. Any action taken or omitted to be taken by any Issuing
Lender under or in connection with any Letter of Credit issued by it shall not
create for such Issuing Lender any resulting liability to the Borrower, any
other Credit Party, any Lender or any other Person unless taken or omitted by
reason of the gross negligence or willful misconduct of such Issuing Lender (as
determined by a court of competent jurisdiction in a final and non-appealable
decision).
(c) In the event that any Issuing Lender makes any payment under any
Letter of Credit issued by it and the Borrower shall not have reimbursed such
amount in full to such Issuing Lender pursuant to Section 2.05(a), such Issuing
Lender shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant's
Percentage of such unreimbursed payment in Dollars and in same day funds. If the
Administrative Agent so notifies, prior to 12:00 Noon (Detroit, Michigan time)
on any Business Day, any Participant required to fund a payment under a Letter
of Credit, such Participant shall make available to the respective Issuing
Lender in Dollars such Participant's Percentage of the amount of such payment on
such Business Day in same day funds; provided, however, that no Participant
shall be obligated to pay to the respective Issuing Lender its Percentage of
such unreimbursed amount for any wrongful payment made by such Issuing Lender
under a Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Issuing
Lender (as determined by a court of competent jurisdiction in a final and
non-appealable decision). If and to the extent such Participant shall not have
so made its Percentage of the amount of such payment available to the respective
Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith
on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to such Issuing Lender at the overnight
Federal Funds Rate for the first three days and at the interest rate applicable
to Base Rate Loans for each day thereafter. The failure of any Participant to
make available to the respective Issuing Lender its Percentage of any payment
under any Letter of Credit shall not relieve any other Participant of its
obligation hereunder to make available to the respective Issuing Lender its
Percentage of any payment under any Letter of Credit on the date required, as
specified above, but no Participant shall be responsible for the failure of any
other Participant to make available to such Issuing Lender such other
Participant's Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Lender shall pay to each Participant
which has paid its Percentage thereof, in Dollars and in same day funds, an
amount equal to such Participant's share (based upon the proportionate aggregate
amount originally funded by such Participant to the aggregate amount funded by
all Participants) of the principal amount of such reimbursement obligation and
interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall
furnish to such Participant copies of any Letter of Credit issued by it and such
other documentation as may reasonably be requested by such Participant.
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<PAGE> 20
(f) The obligations of the Participants to make payments to each
Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever (except
as otherwise provided in the proviso to the second sentence of Section 2.04(c))
and shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), the Agents, any Issuing Lender, any Participant or any other
Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower or any
Subsidiary of the Borrower and the beneficiary named in any such Letter
of Credit);
(iii) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
agrees to reimburse each Issuing Lender, by making payment to the Administrative
Agent in Dollars and in immediately available funds at the Payment Office, for
any payment or disbursement made by such Issuing Lender under any Letter of
Credit issued by it (each such amount, so paid until reimbursed, an "Unpaid
Drawing"), not later than one Business Day following receipt by the Borrower of
notice of such payment or disbursement (provided that no such notice shall be
required to be given if a Default or an Event of Default under Section 10.05
shall have occurred and be continuing, in which case the Unpaid Drawing shall be
due and payable immediately without presentment, demand, protest or notice of
any kind (all of which are hereby waived by the Borrower)), with interest on the
amount so paid or disbursed by such Issuing Lender, to the extent not reimbursed
prior to 12:00 Noon (Detroit, Michigan time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding the
date such Issuing Lender was reimbursed by the Borrower therefor at a rate per
annum which shall be the sum of the Applicable Margin for Base Rate Loans plus
the Base Rate each as in effect from time to time; provided, however, to the
extent such amounts are not reimbursed prior to 12:00 Noon (Detroit, Michigan
time) on the third Business Day following the receipt by the Borrower of notice
of such payment or disbursement or following the occurrence of a Default or an
Event of Default under Section 10.05, interest shall thereafter accrue on the
amounts so paid or disbursed
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<PAGE> 21
by such Issuing Lender (and until reimbursed by the Borrower) at a rate per
annum which shall be the sum of the Applicable Margin for Base Rate Loans plus
the Base Rate each as in effect from time to time plus 2%, in each such case,
with interest to be payable on demand. Each Issuing Lender shall give the
Borrower prompt written notice of each Drawing under any Letter of Credit issued
by it, provided that the failure to give any such notice shall in no way affect,
impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05 to
reimburse each Issuing Lender with respect to Unpaid Drawings (including, in
each case, interest thereon) shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against any Lender (including in
its capacity as issuer of the Letter of Credit or as Participant), including,
without limitation, any defense based upon the failure of any drawing or payment
under a Letter of Credit (each a "Drawing") to conform to the terms of the
Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing; provided, however, that the Borrower shall not be
obligated to reimburse the respective Issuing Lender for any wrongful payment
made by such Issuing Lender under a Letter of Credit issued by it as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of such Issuing Lender (as determined by a court of competent jurisdiction
in a final and non-appealable decision).
2.06 Increased Costs. If at any time after the Effective Date, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by the
NAIC or any governmental authority charged with the interpretation or
administration thereof, or compliance by any Issuing Lender or any Participant
with any request or directive by the NAIC or by any such governmental authority
(whether or not having the force of law), shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by any Issuing Lender or participated in by any
Participant, or (ii) impose on any Issuing Lender or any Participant any other
conditions relating, directly or indirectly, to this Agreement; and the result
of any of the foregoing is to increase the cost to any Issuing Lender or any
Participant of issuing, maintaining or participating in any Letter of Credit, or
reduce the amount of any sum received or receivable by any Issuing Lender or any
Participant hereunder or reduce the rate of return on its capital with respect
to Letters of Credit (except for changes in the rate of tax on, or determined by
reference to, the net income or profits of such Issuing Lender or such
Participant pursuant to the laws of the jurisdiction in which it is organized or
in which its principal office or applicable lending office is located or any
subdivision thereof or therein), then, upon the delivery of the certificate
referred to below to the Borrower by such Issuing Lender or such Participant (a
copy of which certificate shall be sent by such Issuing Lender or such
Participant to the Administrative Agent), the Borrower shall pay to such Issuing
Lender or such Participant such additional amount or amounts as will compensate
such Issuing Lender or such Participant for such increased cost or reduction in
the amount receivable or reduction on the rate of return on its capital. Each
Issuing Lender or Participant, upon determining that any additional amounts will
be payable to it pursuant to this Section 2.06, will give prompt written notice
thereof to the Borrower, which notice shall include a certificate submitted to
the Borrower by such Issuing
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Lender or such Participant (a copy of which certificate shall be sent by such
Issuing Lender or such Participant to the Administrative Agent), setting forth
in reasonable detail the basis for the calculation of such additional amount or
amounts necessary to compensate such Issuing Lender or such Participant. The
certificate required to be delivered pursuant to this Section 2.06 shall, absent
manifest error, be final and conclusive and binding on the Borrower.
SECTION 3. Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay to the Administrative
Agent, for distribution to each Non-Defaulting Lender, a commitment commission
(the "Commitment Commission") for the period from and including the Effective
Date to but excluding the Final Maturity Date (or such earlier date on which the
Total Commitment shall have been terminated), computed at a rate for each day
equal to the Applicable Commitment Commission Percentage on the average daily
amount of such Lender's Unutilized Commitment. Accrued Commitment Commission
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
on the Final Maturity Date (or such earlier date on which the Total Commitment
shall have been terminated).
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Lender (based on each such Lender's respective Percentage)
a fee in respect of each Letter of Credit issued hereunder (the "Letter of
Credit Fee") for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination or expiration of such
Letter of Credit, computed at a rate per annum equal to the Applicable Margin
then in effect with respect to Eurodollar Loans on the daily Stated Amount of
such Letter of Credit. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the first day on or
after the termination of the Total Commitment upon which no Letters of Credit
remain outstanding.
(c) The Borrower agrees to pay to each Issuing Lender, for its own
account, a facing fee in respect of each Letter of Credit issued hereunder by
such Issuing Lender (the "Facing Fee") for the period from and including the
date of issuance of such Letter of Credit to and including the date of the
termination or expiration of such Letter of Credit, computed at a rate per annum
equal to 1/8 of 1% on the daily Stated Amount of such Letter of Credit. Accrued
Facing Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Commitment upon which no Letters of Credit remain outstanding.
(d) The Borrower agrees to pay to each Issuing Lender, for its own
account, upon each payment under, issuance of, or amendment to, any Letter of
Credit issued by such Issuing Lender, such amount as shall at the time of such
event be the administrative charge and the reasonable expenses which such
Issuing Lender is generally imposing in connection with such occurrence with
respect to letters of credit issued by it.
(e) The Borrower agrees to pay to the Agents, for their own
accounts, such other fees as have been agreed to in writing by the Borrower and
the Agents.
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<PAGE> 23
3.02 Voluntary Termination of Unutilized Commitments. (a) Upon at
least three Business Days' prior written notice to the Administrative Agent at
the Notice Office (which notice the Administrative Agent shall promptly transmit
to each of the Lenders), the Borrower shall have the right, at any time or from
time to time, without premium or penalty, to terminate the Total Unutilized
Commitment in whole, or reduce it in part, pursuant to this Section 3.02(a), in
a minimum amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof in the case of partial reductions to the Total Unutilized Commitment,
provided that (i) each such reduction shall apply to reduce the remaining
Scheduled Commitment Reductions on a pro rata basis (based upon the amount of
each such remaining Scheduled Commitment Reduction after giving effect to all
prior reductions thereto) and (ii) each such reduction shall apply
proportionately to permanently reduce the Commitment of each Lender.
(b) In the event of a refusal by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrower may, subject to its
compliance with the requirements of Section 13.12(b), upon five Business Days'
prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
terminate the Commitment of such Lender, so long as all Loans, together with
accrued and unpaid interest, Fees and all other amounts, owing to such Lender
are repaid concurrently with the effectiveness of such termination pursuant to
Section 4.01(b) (at which time Schedule I shall be deemed modified to reflect
such changed amounts), and at such time, such Lender shall no longer constitute
a "Lender" for purposes of this Agreement, except with respect to
indemnifications under this Agreement (including, without limitation, Sections
1.10, 1.11, 2.06, 4.04, 12.06 and 13.01), which shall survive as to such repaid
Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment
(and the Commitment of each Lender) shall terminate in its entirety on September
15, 1999 unless the Effective Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, but subject to reduction as provided in clause
(i) of the proviso set forth in Section 3.02(a) and as provided in clauses (c)
and (d) of this Section 3.03, on each date set forth below, the Total Commitment
shall be permanently reduced by the amount set forth opposite each such date
below (each reduction required by this Section 3.03(b), a "Scheduled Commitment
Reduction"):
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
August 3, 2001 $100,000,000
August 3, 2002 $100,000,000
</TABLE>
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on October 15, 1999 (or such earlier date, if
any, on which the Borrower has notified the Agents in writing that the Borrower
is no longer pursuing the DPRC Acquisition),
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<PAGE> 24
the Total Commitment shall be permanently reduced by $470,000,000 unless the
DPRC Acquisition Date has occurred by such date.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date on which the Borrower incurs any
Indebtedness pursuant to Section 9.04(xiii), the Total Commitment shall be
permanently reduced by an amount equal to 50% of the cash proceeds received from
the respective incurrence of Indebtedness (net of underwriting discounts and
commissions and other reasonable costs associated therewith).
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on the date on which the Borrower consummates a
Sale-Leaseback Transaction with respect to the Farmington Hills Property and on
the 180th day following the consummation of each other Sale-Leaseback
Transaction pursuant to Section 9.02 (except for temporary leases for a term,
including any renewal thereof, of not more than one year and except for leases
between the Borrower and one or more Subsidiaries of the Borrower or between
Subsidiaries of the Borrower), the Total Commitment shall be permanently reduced
by an amount equal to the Value of each such Sale-Leaseback Transaction,
provided that in the case of a Sale-Leaseback Transaction other than with
respect to the Farmington Hills Property, the Total Commitment only shall be
reduced to the extent, but only to the extent, that such amount has not
otherwise been reinvested within such 180-day period and/or used to effect a
permanent reduction in the Total Commitment pursuant to Section 3.02(a) as
provided in Section 9.02.
(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Commitment (and the Commitment of each
Lender) shall terminate in its entirety on the Final Maturity Date.
(g) Each reduction to the Total Commitment pursuant to clauses (c),
(d) and (e) of this Section 3.03 shall be applied to reduce the then remaining
Scheduled Commitment Reductions on a pro rata basis (based upon the amount of
each such remaining Scheduled Commitment Reduction after giving effect to all
prior reductions thereto). In addition, each reduction to the Total Commitment
pursuant to this Section 3.03 shall be applied proportionately to permanently
reduce the Commitment of each Lender.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the right to
prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Administrative Agent prior to 12:00 Noon (Detroit, Michigan time)
at the Notice Office (x) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Base
Rate Loans (or same day notice in the case of a prepayment of Swingline Loans)
and (y) at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Eurodollar Loans, the
amount of such prepayment and the Types of Loans to be prepaid and, in the case
of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice the Administrative Agent shall, except in the case of
Swingline Loans, promptly transmit to each of the Lenders; (ii) (x) each partial
prepayment of Revolving
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<PAGE> 25
Loans pursuant to this Section 4.01(a) shall be in an aggregate principal amount
of at least $5,000,000 and (y) each partial prepayment of Swingline Loans
pursuant to this Section 4.01(a) shall be in an aggregate principal amount of at
least $1,000,000, provided that if any partial prepayment of Eurodollar Loans
made pursuant to any Borrowing shall reduce the outstanding principal amount of
Eurodollar Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, then such Borrowing shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; and (iii) each prepayment pursuant to this Section 4.01(a) in
respect of any Revolving Loans made pursuant to a Borrowing shall be applied pro
rata among such Revolving Loans, provided that at the Borrower's election in
connection with any prepayment of Revolving Loans pursuant to this Section
4.01(a), such prepayment shall not, so long as no Default or Event of Default
then exists, be applied to any Revolving Loan of a Defaulting Lender.
(b) In the event of a refusal by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrower may, upon five Business Days'
prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders),
repay all Revolving Loans of such Lender, together with accrued and unpaid
interest, Fees and other amounts owing to such Lender in accordance with, and
subject to the requirements of, said Section 13.12(b) so long as (A) the
Commitment of such Lender is terminated concurrently with such repayment
pursuant to Section 3.02(b) (at which time Schedule I shall be deemed modified
to reflect the changed Commitments) and (B) the consents, if any, required under
Section 13.12(b) in connection with the repayment pursuant to this clause (b)
have been obtained.
4.02 Mandatory Repayments. (a) On any day on which the sum of (I)
the aggregate outstanding principal amount of all Revolving Loans (after giving
effect to all other repayments thereof on such date), (II) the aggregate
outstanding principal amount of all Swingline Loans (after giving effect to all
other repayments thereof on such date) and (III) the aggregate amount of all
Letter of Credit Outstandings exceeds the Total Available Commitment as then in
effect, the Borrower shall prepay on such day the principal of Swingline Loans
and, after all Swingline Loans have been repaid in full or if no Swingline Loans
are outstanding, Revolving Loans in an amount equal to such excess. If, after
giving effect to the prepayment of all outstanding Swingline Loans and Revolving
Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the
Total Available Commitment as then in effect, the Borrower shall pay to the
Administrative Agent at the Payment Office on such day an amount of cash and/or
Cash Equivalents equal to the amount of such excess (up to a maximum amount
equal to the Letter of Credit Outstandings at such time), such cash and/or Cash
Equivalents to be held as security for all obligations of the Borrower to the
Issuing Lenders and the Lenders hereunder in a cash collateral account to be
established by the Administrative Agent.
(b) With respect to each repayment of Revolving Loans required by
this Section 4.02, the Borrower may designate the Types of Revolving Loans which
are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made,
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provided that: (i) repayments of Eurodollar Loans pursuant to this Section 4.02
may only be made on the last day of an Interest Period applicable thereto unless
all Eurodollar Loans with Interest Periods ending on such date of required
repayment and all Base Rate Loans have been paid in full; (ii) if any repayment
of Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount applicable thereto, such Borrowing shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; and (iii) each repayment of any Revolving Loans made pursuant
to a Borrowing shall be applied pro rata among such Revolving Loans. In the
absence of a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its sole discretion.
(c) Notwithstanding anything to the contrary contained in this
Agreement or in any other Credit Document, (i) all then outstanding Revolving
Loans shall be repaid in full on the Final Maturity Date and (ii) all then
outstanding Swingline Loans shall be repaid in full on the Swingline Expiry
Date.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or under any Note shall be
made to the Administrative Agent for the account of the Lender or Lenders
entitled thereto not later than 12:00 Noon (Detroit, Michigan time) on the date
when due and shall be made in Dollars in immediately available funds at the
Payment Office. Whenever any payment to be made hereunder or under any Note
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable at the applicable rate
during such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or profits of a Lender pursuant to the laws of
the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Lender is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively, as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Agreement or
under any Note, after withholding or deduction for or on account of any Taxes,
will not be less than the amount provided for herein or in such Note. If any
amounts are payable in respect of Taxes pursuant to the preceding sentence, the
Borrower agrees to reimburse each Lender, upon the written request of such
Lender, for taxes imposed on or measured by the net income or profits of such
Lender pursuant to the laws of the
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jurisdiction in which such Lender is organized or in which the principal office
or applicable lending office of such Lender is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which such
Lender is organized or in which the principal office or applicable lending
office of such Lender is located and for any withholding of taxes as such Lender
shall determine are payable by, or withheld from, such Bank, in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and
reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees to deliver to the Borrower and the Administrative Agent on or prior to
the Effective Date, or in the case of a Lender that is an assignee or transferee
of an interest under this Agreement pursuant to Section 1.13 or 13.04 (unless
the respective Lender was already Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) (or successor forms) certifying to such Lender's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x)
a certificate substantially in the form of Exhibit D (any such certificate, a
"Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN (with respect to the
portfolio exemption) (or successor form) certifying to such Lender's entitlement
as of such date to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Lender agrees that from time to time after the Effective
Date, when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, such Lender will
deliver to the Borrower and the Administrative Agent two new accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI, Form
W-8BEN (with respect to the benefits of any income tax treaty), Form W-8BEN
(with respect to the portfolio interest exemption) and a Section 4.04(b)(ii)
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or such Lender shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver any
such Form or Certificate, in which case such Lender shall not be required to
deliver any such Form or Certificate pursuant to this Section 4.04(b).
Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to Section 13.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by
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law, to deduct or withhold income or similar taxes imposed by the United States
(or any political subdivision or taxing authority thereof or therein) from
interest, Fees or other amounts payable hereunder for the account of any Lender
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that
such Lender has not provided to the Borrower U.S. Internal Revenue Service forms
that establish a complete exemption from such deduction or withholding and (y)
the Borrower shall not be obligated pursuant to Section 4.04(a) hereof to
gross-up payments to be made to a Lender in respect of income or similar taxes
imposed by the United States if (I) such Lender has not provided to the Borrower
the Internal Revenue Service forms required to be provided to the Borrower
pursuant to this Section 4.04(b) or (II) in the case of a payment, other than
interest, to a Lender described in clause (ii) above, to the extent that such
forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 4.04 and except as set forth in Section 13.04(b), the
Borrower agrees to pay any additional amounts and to indemnify each Lender in
the manner set forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any Taxes
deducted or withheld by it as described in the immediately preceding sentence as
a result of any changes that are effective after the Effective Date in any
applicable law, treaty, governmental rule, regulation, guideline or order, or in
the interpretation thereof, relating to the deducting or withholding of such
Taxes.
SECTION 5A. Conditions Precedent to the Effective Date. The
occurrence of the Effective Date pursuant to Section 13.10 is subject to the
satisfaction of the following conditions:
5A.01 Execution of Agreement; Notes. On the Effective Date, (i) this
Agreement shall have been executed and delivered as provided in Section 13.10
and (ii) there shall have been delivered to the Administrative Agent for the
account of each of the Lenders that has requested same, the appropriate
Revolving Notes executed by the Borrower and to the Swingline Lender to the
extent requested by it, the Swingline Note executed by the Borrower, in each
case, in the amount, maturity and as otherwise provided herein.
5A.02 Officer's Certificate. On the Effective Date, the Agents shall
have received a certificate, dated the Effective Date and signed on behalf of
the Borrower by the Chairman of the Board, the Chief Executive Officer, the
President or any Vice President of the Borrower, certifying on behalf of the
Borrower that all of the conditions in Sections 5A.06, 5A.07, 5A.10 and 6.01
have been satisfied on such date.
5A.03 Opinions of Counsel. On the Effective Date, the Agents shall
have received (i) from Honigman Miller Schwartz and Cohn, special counsel to the
Credit Parties, an opinion addressed to each of the Agents and each of the
Lenders and dated the Effective Date covering the matters set forth in Exhibit
E-1 and such other matters incident to the transactions contemplated herein as
the Agents may reasonably request, and (ii) from the General Counsel of the
Borrower, an opinion addressed to each of the Agents and each of the Lenders and
dated the Effective Date covering the matters set forth in Exhibit E-2 and such
other matters incident to the transactions contemplated herein as the Agents may
reasonably request.
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5A.04 Corporate Documents; Proceedings; etc. (a) On the Effective
Date, the Agents shall have received a certificate from each Credit Party, dated
the Effective Date, signed on behalf of such Credit Party by the Chairman of the
Board, the Chief Executive Officer, the President or any Vice President of such
Credit Party, and attested to by the Secretary or any Assistant Secretary of
such Credit Party, in the form of Exhibit F with appropriate insertions,
together with copies of the certificate or articles of incorporation and by-laws
(or equivalent organizational documents) of such Credit Party and the
resolutions of such Credit Party referred to in such certificate, and the
foregoing shall be in form and substance reasonably acceptable to the Agents.
(b) All corporate, partnership, limited liability company and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be reasonably satisfactory in form and substance to the Agents, and the Agents
shall have received all information and copies of all documents and papers,
including records of corporate, partnership or limited liability company
proceedings, governmental approvals, good standing certificates and bring-down
telegrams or facsimiles, if any, which the Agents reasonably may have requested
in connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities.
5A.05 Fees, etc. On the Effective Date, the Borrower shall have paid
to the Agents and the Lenders all reasonable costs, fees and expenses
(including, without limitation, reasonable legal fees and expenses) payable to
the Agents and the Lenders to the extent then due.
5A.06 Adverse Change, etc. (a) Since March 31, 1999, nothing shall
have occurred (and neither of the Agents nor the Lenders shall have become aware
of any facts or conditions not previously known) which either of the Agents or
the Required Lenders shall reasonably determine has had, or could reasonably be
expected to have, a Material Adverse Effect.
(b) On or prior to the Effective Date, all necessary governmental
(domestic and foreign) and material third party approvals and/or consents in
connection with the transactions contemplated by this Agreement and the other
Credit Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect, and all applicable waiting periods with respect
thereto shall have expired without any action being taken by any competent
authority which restrains, prevents or imposes materially adverse conditions
upon the consummation of the transactions contemplated by this Agreement and the
other Credit Documents or otherwise referred to herein or therein. Additionally,
there shall not exist any judgment, order, injunction or other restraint issued
or filed or a hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon the
transactions contemplated by this Agreement and the other Credit Documents or
otherwise referred to herein or therein.
5A.07 Litigation. On the Effective Date, there shall be no actions,
suits or proceedings pending or threatened (i) with respect to this Agreement or
any other Credit Document
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or (ii) which either of the Agents or the Required Lenders shall reasonably
determine could reasonably be expected to have a Material Adverse Effect.
5A.08 Subsidiaries Guaranty. On the Effective Date, each Subsidiary
Guarantor shall have duly authorized, executed and delivered the Subsidiaries
Guaranty in the form of Exhibit G (as modified, amended or supplemented from
time to time, the "Subsidiaries Guaranty"), and the Subsidiaries Guaranty shall
be in full force and effect.
5A.09 Financial Statements; Projections. On or prior to the
Effective Date, the Agents shall have received true and correct copies of the
historical financial statements, the pro forma financial statements and the
Projections referred to in Sections 7.05(a) and (d), which historical financial
statements, pro forma financial statements and Projections shall be in form and
substance reasonably satisfactory to the Agents and the Required Lenders.
5A.10 Existing Compuware Credit Facility. On or prior to the
Effective Date, the Borrower shall have terminated the Existing Compuware Credit
Facility and shall have repaid all amounts outstanding thereunder and the
lenders thereunder shall have released any and all Liens and guaranties given in
respect thereof and the Agents shall have received evidence, in form and
substance reasonably satisfactory to them, that the matters set forth above in
this Section 5A.10 have occurred.
SECTION 5B. Conditions Precedent to the DPRC Acquisition. The
ability of the Borrower or a Subsidiary thereof to consummate the DPRC
Acquisition, and the obligation of each Lender to make Revolving Loans to
finance the same, is subject to the satisfaction of the following conditions:
5B.01 Effective Date. The Effective Date shall have occurred.
5B.02 Officer's Certificate. On the DPRC Acquisition Date, the
Agents shall have received a certificate, dated the DPRC Acquisition Date and
signed on behalf of the Borrower by the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President of the Borrower,
certifying on behalf of the Borrower that all of the conditions in Sections
5B.04, 5B.05, 5B.06 and 6.01 have been satisfied on such date.
5B.03 Corporate Documents; Proceedings. All corporate, partnership,
limited liability company and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by the DPRC
Acquisition Documents shall be reasonably satisfactory in form and substance to
the Agents.
5B.04 DPRC Acquisition. (a) On the DPRC Acquisition Date (and
concurrently with the incurrence of any Revolving Loans on such date), either
(i) the DPRC Tender Offer shall have been consummated in all material respects
in accordance with the DPRC Tender Offer Documents and all applicable laws, and
each of the material conditions precedent to the consummation of the DPRC Tender
Offer as set forth in the DPRC Tender Offer Documents (including the 91% minimum
share tender condition) shall have been satisfied and not waived, except with
the consent of the Agents and the Required Lenders (which consent will not be
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reasonably withheld), to the reasonable satisfaction of the Agents or (ii) in
the event that the DPRC Tender Offer expires without the Borrower or a
Wholly-Owned Domestic Subsidiary thereof consummating same as provided in
preceding clause (i), the DPRC Merger shall have been consummated in all
material respects in accordance with the DPRC Merger Agreement and all
applicable laws, and each of the material conditions precedent to the
consummation of the DPRC Merger as set forth in the DPRC Merger Agreement shall
have been satisfied and not waived, except with the consent of the Agents and
the Required Lenders (which consent will not be unreasonably withheld), to the
reasonable satisfaction of the Agents.
(b) DPRC Merger Agreement. On or prior to the DPRC Acquisition Date,
the DPRC Merger Agreement shall have been entered into and shall be in full
force and effect on the DPRC Acquisition Date.
(c) On the DPRC Acquisition Date, the Borrower or DPRC shall have
terminated the Existing DPRC Credit Facility and shall have repaid all amounts
outstanding thereunder and the lenders thereunder shall have released any and
all Liens and guaranties given in respect thereof and the Agents shall have
received evidence, in form and substance reasonably satisfactory to them, that
the matters set forth above in this Section 5B.04(d) have occurred.
(d) On or prior to the DPRC Acquisition Date, the Agents shall have
received true and correct copies of the DPRC Acquisition Documents, and all of
the terms and conditions thereof shall be in the form delivered to the Agents
prior to the Effective Date, with such changes thereto as may be agreed to from
time to time by the Agents.
5B.05 Adverse Change, etc. (a) (i) Since March 31, 1999, nothing
shall have occurred (and neither of the Agents nor the Lenders shall have become
aware of any facts or conditions not previously known) which either of the
Agents or the Required Lenders shall reasonably determine has had, or could
reasonably be expected to have, a Material Adverse Effect.
(ii) Since July 31, 1998, nothing shall have occurred (and neither
of the Agents nor the Lenders shall become aware of any facts or conditions not
previously known) which either of the Agents or the Required Lenders shall
reasonably determine has had, or could reasonably be expected to have, a
material adverse effect on the business, operations, properties, assets,
liabilities or condition (financial or otherwise) of DPRC and its Subsidiaries
taken as a whole.
(b) On or prior to the DPRC Acquisition Date, all necessary
governmental (domestic and foreign) and material third party approvals and/or
consents in connection with the transactions contemplated by the DPRC
Acquisition Documents and otherwise referred to herein or therein shall have
been obtained and remain in effect (other than the DPRC shareholder vote
necessary to approve the DPRC Merger and the filing of the merger certificate to
effect the DPRC Merger except to the extent that the DPRC Merger is to be
consummated on the DPRC Acquisition Date as contemplated by clause (ii) of
Section 5B.04(a), in which case such shareholder approval and filing shall have
been obtained or made, as the case may be), and all applicable waiting periods
with respect thereto shall have expired without any action being taken
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by any competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of the DPRC Acquisition. Additionally,
there shall not exist any judgment, order, injunction or other restraint issued
or filed or a hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon the
transactions contemplated by the DPRC Acquisition Documents.
5B.06 Litigation. On the DPRC Acquisition Date, there shall be no
actions, suits or proceedings pending or threatened (i) with respect to any DPRC
Acquisition Document or (ii) which either of the Agents or the Required Lenders
shall reasonably determine could reasonably be expected to have (x) a Material
Adverse Effect or (y) a material adverse effect on the business, operations,
properties, assets, liabilities or condition (financial or otherwise) of DPRC
and its Subsidiaries taken as a whole.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
of each Lender to make Loans (including any Loans made on the Effective Date and
on the DPRC Acquisition Date), and the obligation of each Issuing Lender to
issue Letters of Credit, is subject, at the time of each such Credit Event
(except as hereinafter indicated), to the satisfaction of the following
conditions:
6.01 No Default; Representations and Warranties. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Revolving Loan (other than a Revolving Loan made pursuant to a
Mandatory Borrowing), the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.03(a). Prior to the making of
each Swingline Loan, the Swingline Lender shall have received the notice
referred to in Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Lender shall have received a
Letter of Credit Request meeting the requirements of Section 2.03(a).
The acceptance of the benefits of each Credit Event shall constitute
a representation and warranty by the Borrower to each of the Agents and each of
the Lenders that all the conditions specified in Section 5A (with respect to
Credit Events to occur on the Effective Date), in Section 5B (with respect to
Credit Events to occur on the DPRC Acquisition Date), and in this Section 6
(with respect to Credit Events to occur on or after the Effective Date) and
applicable to such Credit Event exist as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5A, Section 5B and in this Section 6, unless otherwise specified, shall
be delivered to the Administrative Agent at the Notice Office for the
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account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance satisfactory to the Agents and the Required Lenders.
SECTION 7. Representations, Warranties and Agreements. In order to
induce the Lenders to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, the Borrower makes
the following representations, warranties and agreements, in each case after
giving effect to the Effective Date, all of which shall survive the execution
and delivery of this Agreement and the Notes and the making of the Loans and
issuance of the Letters of Credit, with the occurrence of each Credit Event on
or after the Effective Date being deemed to constitute a representation and
warranty that the matters specified in this Section 7 are true and correct in
all material respects on and as of the date of each such Credit Event (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
7.01 Organizational Status. Each of the Borrower and each of its
Subsidiaries (i) is a duly organized and validly existing corporation,
partnership or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its organization, except for failures to
be so duly organized, validly existing or in good standing which, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, (ii) has the corporate, partnership or limited
liability company power and authority, as the case may be, to own its property
and assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where the ownership, leasing or
operation of its property or the conduct of its business requires such
qualifications except for failures to be so qualified which, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
7.02 Power and Authority. Each Credit Party has the corporate,
partnership or limited liability company power and authority, as the case may
be, to execute, deliver and perform the terms and provisions of each of the
Documents to which it is party and has taken all necessary corporate,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance by it of each of such
Documents. Each Credit Party has duly executed and delivered each of the
Documents to which it is party, and each of such Documents constitutes its
legal, valid and binding obligation enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
applicable law, statute, rule or regulation or any order, writ, injunction or
decree of any court or governmental instrumentality, (ii) will conflict
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with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of any material indenture, mortgage, deed of trust, credit agreement or
loan agreement, or any other material agreement, contract or instrument, to
which the Borrower or any of its Subsidiaries is a party or by which it or any
of its property or assets is bound or to which it may be subject or (iii) will
violate any provision of the certificate or articles of incorporation or by-laws
(or equivalent organizational documents) of the Borrower or any of its
Subsidiaries.
7.04 Approvals. No order, consent, approval, license, authorization
or validation of, or filing, recording or registration with (except for (x)
those that have otherwise been obtained or made on or prior to the Effective
Date and which remain in full force and effect on the Effective Date and (y) the
receipt of the DPRC shareholder consent to approve the DPRC Merger and the
filing of the merger certificate to effect the DPRC Merger, each of which will
have been obtained or made by the time of the consummation of the DPRC Merger),
or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required by any Credit Party to authorize, or is
required in connection with, (i) the execution, delivery and performance of any
Document by any Credit Party or (ii) the legality, validity, binding effect or
enforceability of any such Document against any Credit Party.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) (i) The audited consolidated balance sheet of
the Borrower and its Subsidiaries for its fiscal year ended on March 31, 1999,
and the related audited consolidated statements of income, cash flows and
shareholders' equity of the Borrower and its Subsidiaries for the fiscal year
ended on such date, copies of which have been furnished to the Agents prior to
the Effective Date, present fairly in all material respects the consolidated
financial position of the Borrower and its Subsidiaries at the date of such
balance sheet and the consolidated results of the operations of the Borrower and
its subsidiaries for the period covered thereby. All of the foregoing financial
statements have been prepared in accordance with generally accepted accounting
principles consistently applied.
(ii) The pro forma consolidated balance sheet of the Borrower and
its Subsidiaries as of March 31, 1999 (after giving effect to the DPRC
Acquisition and the financing therefor), and the related pro forma consolidated
statements of income, cash flows and shareholders' equity of the Borrower and
its Subsidiaries for the twelve month period ended on March 31, 1999 (after
giving effect to the DPRC Acquisition and the financing therefor and assuming
that same had occurred on April 1, 1998), copies of which have been furnished to
the Agents prior to the Effective Date, present fairly in all material respects
the pro forma consolidated financial position of the Borrower and its
Subsidiaries as of March 31, 1999 and the pro forma consolidated results of the
operations of the Borrower and its Subsidiaries for the period covered thereby.
All of the foregoing pro forma financial statements have been prepared on a
basis consistent with the historical financial statements of the Borrower set
forth in the clause (i) of this Section 7.05(a).
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(b) (i) The sum of the assets, at a fair valuation, of each of the
Borrower on a stand-alone basis and of the Borrower and its Subsidiaries taken
as a whole will exceed its debts, (ii) each of the Borrower on a stand-alone
basis and the Borrower and its Subsidiaries taken as a whole has not incurred
and does not intend to incur, and does not believe that it will incur, debts
beyond its ability to pay such debts as such debts mature, and (iii) each of the
Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a
whole will have sufficient capital with which to conduct its business. For
purposes of this Section 7.05(b), "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
(c) Except as fully disclosed in the financial statements (including
the notes thereto) delivered pursuant to Section 7.05(a), there were as of the
Effective Date, no liabilities or obligations with respect to the Borrower or
any of its Subsidiaries (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, could reasonably
be expected to be material to the Borrower and its Subsidiaries taken as a
whole.
(d) On and as of the Effective Date and the DPRC Acquisition Date,
the Projections delivered to the Agents prior to the Effective Date have been
prepared in good faith and are based on reasonable assumptions, and there are no
statements or conclusions in the Projections which are based upon or include
information known to the Borrower to be misleading in any material respect or
which fail to take into account material information known to the Borrower
regarding the matters reported therein. On the Effective Date and the DPRC
Acquisition Date, the Borrower believes that the Projections are reasonable and
attainable, it being recognized by the Lenders, however, that projections as to
future events are not to be viewed as facts and that the actual results during
the period or periods covered by the Projections may differ from the projected
results.
(e) Since March 31, 1999, there has been no change in the business,
operations, properties, assets, liabilities or condition (financial or
otherwise) of the Borrower or any of its Subsidiaries that has had, or could
reasonably be expected to have, a Material Adverse Effect.
7.06 Litigation. There are no actions, suits or proceedings pending
or, to the knowledge of the Borrower, threatened by or before any court, agency
or other governmental instrumentality that could reasonably be expected to,
either individually or in the aggregate, have a Material Adverse Effect.
7.07 True and Complete Disclosure. All factual information (taken as
a whole) furnished by or on behalf of the Borrower in writing to any Agent or
any Lender for purposes of
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or in connection with this Agreement, the other Documents or any transaction
contemplated herein or therein is, and all other such factual information (taken
as a whole) hereafter furnished by or on behalf of the Borrower in writing to
any Agent or any Lender will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any fact necessary to make such information (taken as a
whole) not misleading in any material respect at such time in light of the
circumstances under which such information was provided (it being understood
that (i) the Projections shall not be subject to the representations and
warranties set forth in this Section 7.07 but instead are subject to the
representations and warranties set forth in Section 7.05(d) and (ii) no
representation or warranty is made by the Borrower pursuant to this Section 7.07
to the extent that any such information relates to a Person other than the
Borrower or a Subsidiary thereof and such information was prepared by a Person
other than the Borrower, a Subsidiary thereof or any financial, legal or other
advisor or agent of the Borrower or a Subsidiary thereof).
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the
Loans shall be used (i) to fund the DPRC Acquisition, (ii) to repurchase
outstanding DPRC Convertible Subordinated Notes from and after the DPRC
Acquisition Date, (iii) to pay the fees and expenses related to the foregoing,
(iv) to repay in full the Existing Compuware Credit Facility, (v) to repay in
full the Existing DPRC Credit Facility on the DPRC Acquisition Date and (vi) for
the working capital and general corporate purposes of the Borrower and its
Subsidiaries (including for acquisitions otherwise permitted under this
Agreement).
(b) Neither the making of any Loan nor the use of the proceeds
thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation T, U or X. At the time of each
Credit Event and after giving effect thereto (including after giving effect to
the application of the proceeds therefrom), no more than 25% of the value of the
assets of the Borrower on a consolidated basis shall constitute Margin Stock.
7.09 Tax Returns and Payments. Each of the Borrower and each of its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, except for
those contested in good faith and adequately disclosed and fully provided for on
the financial statements of the Borrower and its Subsidiaries in accordance with
generally accepted accounting principles. There is no action, suit, proceeding,
investigation, audit, or claim now pending or, to the knowledge of the Borrower,
threatened by any authority regarding any taxes relating to the Borrower or any
of its Subsidiaries that, either individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
7.10 Compliance with ERISA. (a) Except as could not, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: each Plan (and each related trust, insurance contract or fund)
is in substantial compliance with its terms and with all applicable laws,
including without limitation ERISA and the Code; each Plan (and each related
trust, if any) which is intended to be qualified under Section 401(a) of the
Code has received a determination letter from the Internal Revenue Service to
the effect that it meets the requirements
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of Sections 401(a) and 501(a) of the Code; no Reportable Event has occurred; no
Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA)
is insolvent or in reorganization; no Plan has an Unfunded Current Liability; no
Plan which is subject to Section 412 of the Code or Section 302 of ERISA has an
accumulated funding deficiency, within the meaning of such sections of the Code
or ERISA, or has applied for or received a waiver of an accumulated funding
deficiency or an extension of any amortization period, within the meaning of
Section 412 of the Code or Section 303 or 304 of ERISA; all contributions
required to be made with respect to a Plan have been made and no liability has
occurred as a result of any failure to make any such contribution in a timely
manner; neither the Borrower nor any Subsidiary of the Borrower nor any ERISA
Affiliate has incurred any liability (including any indirect, contingent or
secondary liability) to or on account of a Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or reasonably expects to incur any such
liability under any of the foregoing sections with respect to any Plan; no
condition exists which presents a material risk to the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate of incurring a liability to or
on account of a Plan pursuant to the foregoing provisions of ERISA and the Code;
no proceedings have been instituted to terminate or appoint a trustee to
administer any Plan which is subject to Title IV of ERISA; no action, suit,
proceeding, hearing, audit or investigation with respect to the administration,
operation or the investment of assets of any Plan (other than routine claims for
benefits) is pending or the Borrower is reasonably expected or threatened; using
actuarial assumptions and computation methods consistent with Part 1 of subtitle
E of Title IV of ERISA, the aggregate liabilities of the Borrower and its
Subsidiaries and its ERISA Affiliates to all Plans which are multiemployer plans
(as defined in Section 4001(a)(3) of ERISA) in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan, could not reasonably be expected to have a Material Adverse Effect;
each group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of the Borrower, any Subsidiary of the Borrower, or any ERISA
Affiliate has at all times been operated in substantial compliance with the
provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the
Code and any failure to so comply would not result in a material liability; no
lien imposed under the Code or ERISA on the assets of the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate exists or is likely to arise
on account of any Plan; and the Borrower and its Subsidiaries may cease
contributions to or terminate any employee benefit plan maintained by any of
them without incurring any liability.
(b) Except as could not either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect: (i) each Foreign
Pension Plan has been maintained in substantial compliance with its terms and
with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing
with applicable regulatory authorities; (ii) all contributions required to be
made with respect to a Foreign Pension Plan have been timely made and no
liability has occurred as a result of any failure to make any such contribution
in a timely manner; (iii) neither the Borrower nor any of its Subsidiaries has
incurred any material obligation in connection with the termination of or
withdrawal from any Foreign Pension Plan; and (iv) the present value of the
accrued benefit liabilities (whether or not vested) under each Foreign Pension
Plan, determined as of the end of
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the Borrower's most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities.
7.11 Properties. Each of the Borrower and each of its Subsidiaries
has good and marketable title to, or a valid leasehold interest in, all of its
material properties, except for any defects that, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
and all such property is free and clear of all Liens, other than Permitted
Liens.
7.12 Year 2000. All Information Systems and Equipment are either
Year 2000 Compliant, or any reprogramming, remediation, or any other corrective
action, including the internal testing of all such Information Systems and
Equipment, will be completed by November 30, 1999, except to the extent that the
failure to be Year 2000 Compliant could not reasonably be expected to result in
a Default, an Event of Default or a Material Adverse Effect. Further, to the
extent that such reprogramming/remediation and testing action is required, the
cost thereof, as well as the cost of the reasonably foreseeable consequences of
failure to become Year 2000 Compliant, to the Borrower and its Subsidiaries
(including, without limitation, reprogramming errors and the failure of other
systems or equipment) will not result in a Default, an Event of Default or a
Material Adverse Effect.
7.13 Subsidiaries. As of the Effective Date, the Borrower has no
Subsidiaries other than those Subsidiaries listed on Schedule III. Schedule III
correctly sets forth, as of the Effective Date, (i) the percentage ownership
(direct or indirect) of the Borrower in each class of capital stock or other
equity of each of its Subsidiaries and also identifies the direct owner thereof
and (ii) the jurisdiction of organization of each such Subsidiary.
7.14 Compliance with Statutes, etc. Each of the Borrower and each of
its Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances as could not, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
7.15 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.16 Public Utility Holding Company Act. Neither the Borrower nor
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
7.17 Environmental Matters. Except to the extent that any matter set
forth or described below in this Section 7.17, either individually or in the
aggregate, could not reasonably
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be expected to have a Material Adverse Effect: each of the Borrower and each of
its Subsidiaries is in compliance with all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws; and there are
no pending or, to the knowledge of the Borrower, threatened Environmental Claims
against the Borrower or any of its Subsidiaries (including any such claim
arising out of the ownership, lease or operation by the Borrower or any of its
Subsidiaries of any Real Property no longer owned, leased or operated by the
Borrower or any of its Subsidiaries) or any Real Property owned, leased or
operated by the Borrower or any of its Subsidiaries.
7.18 Labor Relations. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect. There is (i) no unfair labor practice complaint pending against the
Borrower or any of its Subsidiaries or, to the knowledge of the Borrower,
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Borrower or any of its
Subsidiaries or, to the knowledge of the Borrower, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against the
Borrower or any of its Subsidiaries or, to the knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries and (iii) no union
representation question exists with respect to the employees of the Borrower or
any of its Subsidiaries, except (with respect to any matter specified in clause
(i), (ii) or (iii) above, either individually or in the aggregate) such as could
not, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
7.19 Patents, Licenses, Franchises and Formulas. Each of the
Borrower and each of its Subsidiaries owns or has the right to use all the
patents, trademarks, permits, service marks, trade names, copyrights, licenses,
franchises, proprietary information (including but not limited to rights in
computer programs and databases) and formulas, or rights with respect to the
foregoing, and has obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its business, without any
known conflict with the rights of others which, or the failure to obtain which,
as the case may be, could reasonably be expected to result in a Material Adverse
Effect.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Commitment and
all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder and
thereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to the
Administrative Agent (which will promptly forward same to each Lender):
(a) Quarterly Financial Statements. Within 50 days after the close
of the first three quarterly accounting periods in each fiscal year of the
Borrower, (i) the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarterly accounting period and the related
consolidated statements of income and shareholders' equity and statement
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of cash flows for such quarterly accounting period and for the elapsed portion
of the fiscal year ended with the last day of such quarterly accounting period,
in each case setting forth comparative figures for the related periods in the
prior fiscal year, all of which shall be certified by a Financial Officer of the
Borrower that they fairly present in all material respects in accordance with
generally accepted accounting principles the financial condition of the Borrower
and its Subsidiaries as of the dates indicated and the results of their
operations and changes in their cash flows for the periods indicated, subject to
normal year-end audit adjustments and the absence of footnotes, and (ii)
management's discussion and analysis of the important operational and financial
developments during such quarterly accounting period (it being understood and
agreed that the delivery by the Borrower to the Administrative Agent of the
Borrower's Form 10-Q as filed with the SEC for the respective quarterly
accounting period and within 50 days after the close thereof shall satisfy the
provisions of this clause (a) to the extent, but only to the extent, that such
Form 10-Q contains the information and/or certification required to be delivered
pursuant to this clause (a), and to the extent that any such information and/or
certification is not otherwise contained in such Form 10-Q, such information
and/or certification shall be delivered together with the respective Form 10-Q).
(b) Annual Financial Statements. Within 95 days after the close of
each fiscal year of the Borrower, (i) the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and shareholders' equity and statement of cash
flows for such fiscal year setting forth comparative figures for the preceding
fiscal year and certified by independent certified public accountants of
recognized national standing, together with a report of such accounting firm
(without a "going concern" or like qualification or exception and without any
qualification or exception as to the scope of audit) stating that in the course
of its regular audit of the financial statements of the Borrower and its
Subsidiaries, which audit was conducted in accordance with generally accepted
auditing standards, such accounting firm obtained no knowledge of any Default or
an Event of Default which has occurred and is continuing relating to any
financial accounting matters or, if in the opinion of such accounting firm such
a Default or Event of Default has occurred and is continuing, a statement as to
the nature thereof, and (ii) management's discussion and analysis of the
important operational and financial developments during such fiscal year (it
being understood and agreed that the delivery by the Borrower to the
Administrative Agent of the Borrower's Form 10-K as filed with the SEC for the
respective fiscal year and within 95 days after the close thereof shall satisfy
the provisions of this clause (b) to the extent, but only to the extent, that
such Form 10-K contains the information and/or certification required to be
delivered pursuant to this clause (b), and to the extent that any such
information and/or certification is not otherwise contained in such Form 10-K,
such information and/or certification shall be delivered together with the
respective Form 10-K).
(c) Officers Certificates. At the time of delivery of the financial
statements provided for in Sections 8.01(a) and (b), a certificate of a
Financial Officer of the Borrower to the effect that, to the best of such
officer's knowledge, no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof, which certificate shall
set forth in reasonable detail the calculations required to establish whether
the Borrower and its Subsidiaries were in compliance
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with the provisions of 9.02, 9.04, 9.05 and 9.07 through 9.09, inclusive, at the
end of such fiscal quarter or year, as the case may be.
(d) Notice of Default or Litigation. Promptly upon, and in any event
within five Business Days after, any officer of the Borrower obtains knowledge
thereof, notice of (i) the occurrence of any event which constitutes a Default
or an Event of Default, (ii) any litigation or governmental investigation or
proceeding pending against the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or (iii) any other
development that has had, or could reasonably be expected to have, a Material
Adverse Effect.
(e) Other Reports and Filings. Promptly after the filing or delivery
thereof, copies of all reports on Forms 10-K, 10-Q and 8-K and all proxy
materials, if any, which the Borrower or any of its Subsidiaries shall publicly
file with the Securities and Exchange Commission or any successor thereto (the
"SEC").
(f) Environmental Matters. Promptly after any officer of the
Borrower obtains knowledge thereof, notice in reasonable detail of one or more
of the following environmental matters, unless such environmental matters could
not, individually or when aggregated with all other such environmental matters,
be reasonably expected to have a Material Adverse Effect:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned, leased or
operated by the Borrower or any of its Subsidiaries; or
(ii) any condition or occurrence on or arising from any Real
Property owned, leased or operated by the Borrower or any of its
Subsidiaries that (I) results in noncompliance by the Borrower or any of
its Subsidiaries with any applicable Environmental Law or (II) could be
expected to form the basis of an Environmental Claim against the Borrower
or any of its Subsidiaries or any such Real Property;
(g) Debt Rating. Promptly upon, and in any event within three
Business Days after, any officer of the Borrower obtains knowledge of any change
by Moody's or S&P in the Borrower's Debt Rating, notice of such change.
(h) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to the Borrower or any of its
Subsidiaries as any Agent or Lender may reasonably request.
8.02 Books, Records and Inspections. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and accounts in
which full, true and correct entries sufficient to prepare the financial
statements required to be delivered pursuant to this Agreement in conformity
with generally accepted accounting principles and all requirements of law shall
be made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to,
permit officers and designated representatives of any Agent or any Lender to
visit and inspect, under guidance of officers of the Borrower or such
Subsidiary, any of the properties of the Borrower or such Subsidiary, and to
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examine the books of account of the Borrower or such Subsidiary and discuss the
affairs, finances and accounts of the Borrower or such Subsidiary with, and be
advised as to the same by, its and their officers and independent accountants,
all at such reasonable times and intervals and to such reasonable extent as such
Agent or such Lender may reasonably request.
8.03 Maintenance of Insurance. The Borrower will, and will cause
each of its Subsidiaries to, maintain with financially sound and reputable
insurance companies insurance in at least such amounts and against at least such
risks as is consistent and in accordance with industry practice for companies
similarly situated owning similar properties in the same general areas in which
the Borrower or any of its Subsidiaries operates.
8.04 Corporate Franchises. The Borrower will, and will cause each of
its Subsidiaries to, do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, licenses and patents; provided, however, that nothing in this
Section 8.04 shall prevent (i) sales of assets and other transactions by the
Borrower or any of its Subsidiaries in accordance with Section 9.03 or (ii) the
withdrawal by the Borrower or any of its Subsidiaries of its qualification as a
foreign corporation, partnership or limited liability company, as the case may
be, in any jurisdiction where such withdrawal could not, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
8.05 Compliance with Statutes, etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business, the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
8.06 Compliance with Environmental Laws. The Borrower will, and will
cause each of its Subsidiaries to, comply in all respects with all Environmental
Laws applicable to the ownership or use of its Real Property now or hereafter
owned, leased or operated by the Borrower or any of its Subsidiaries, will
promptly pay or cause to be paid all costs and expenses incurred in connection
with such compliance, and will keep or cause to be kept all such Real Property
free and clear of any Liens imposed pursuant to such Environmental Laws, except
such noncompliances as could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
8.07 ERISA. As soon as possible and, in any event, within fifteen
(15) days after the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate knows or has reason to know of the occurrence of any of the following
(but only to the extent that any of the following, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect), the
Borrower will deliver to each of the Lenders a certificate of a Financial
Officer of the Borrower setting forth the full details as to such occurrence and
the action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate
is required or proposes to take, together with
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any notices required or proposed to be given to or filed by the Borrower, such
Subsidiary, the Plan administrator or such ERISA Affiliate to or with the PBGC
or any other governmental agency, or a Plan participant and any notices received
by the Borrower, such Subsidiary or ERISA Affiliate from the PBGC or any other
government agency, or a Plan participant with respect thereto: that a Reportable
Event has occurred (except to the extent that the Borrower has previously
delivered to the Lenders a certificate and notices (if any) concerning such
event pursuant to the next clause hereof); that a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA
is subject to the advance reporting requirement of PBGC Regulation Section
4043.61 (without regard to subparagraph (b)(1) thereof), and an event described
in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section
4043 is reasonably expected to occur with respect to such Plan within the
following 30 days; that an accumulated funding deficiency, within the meaning of
Section 412 of the Code or Section 302 of ERISA, has been incurred or an
application may be or has been made for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code or Section 303 or 304
of ERISA with respect to a Plan; that any contribution required to be made with
respect to a Plan or Foreign Pension Plan has not been timely made; that a Plan
covered by Title IV of ERISA has been or may be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has an
Unfunded Current Liability; that proceedings may be or have been instituted to
terminate or appoint a trustee to administer a Plan which is subject to Title IV
of ERISA; that a proceeding has been instituted pursuant to Section 515 of ERISA
to collect a delinquent contribution to a Plan; that the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate will or may incur any
liability (including any indirect, contingent, or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under
Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or
502(l) of ERISA or with respect to a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code; or that the Borrower or any Subsidiary of the Borrower may incur any
liability pursuant to any employee welfare benefit plan (as defined in Section
3(1) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any Plan or any
Foreign Pension Plan.
8.08 Payment of Taxes. The Borrower will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it prior to the date on
which penalties attach thereto, and all material lawful claims for sums that
have become due and payable which, if unpaid, might become a Lien not otherwise
permitted under Section 9.01(i); provided, that neither the Borrower nor any of
its Subsidiaries shall be required to pay any such tax, assessment, charge, levy
or claim which is being contested in good faith and by proper proceedings if it
has maintained adequate reserves with respect thereto in accordance with
generally accepted accounting principles.
8.09 Good Repair. The Borrower will, and will cause each of its
Subsidiaries to, ensure that all property and equipment that are material to the
conduct of its business are kept in good repair, working order and condition
(ordinary wear and tear excepted), and that from time
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to time there are made in such properties and equipment all needful and proper
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, to the extent and in the manner useful or customary for
companies in similar businesses.
8.10 Use of Proceeds. All proceeds of the Loans will be used as
provided in Section 7.08.
8.11 Additional Subsidiary Guarantors. With respect to any Person
which becomes a Material Wholly-Owned Domestic Subsidiary of the Borrower after
the Effective Date, the Borrower will promptly, but in any event within ten days
thereafter, notify the Administrative Agent thereof and cause such Subsidiary
(i) to execute a counterpart of the Subsidiaries Guaranty and thereby become a
Subsidiary Guarantor thereunder and (ii) to deliver to the Administrative Agent
such certificates, opinions of counsel and other relevant documentation of the
type described in Section 5A as such new Subsidiary would have had to deliver if
it were a Subsidiary Guarantor on the Effective Date.
8.12 The DPRC Merger. As soon as practicable following the
consummation of the DPRC Tender Offer (to the extent that same is consummated),
but no later than 60 days thereafter, the Borrower will cause the DPRC Merger to
be consummated in accordance with the terms of the DPRC Merger Documents and all
applicable laws.
8.13 DPRC Convertible Subordinated Notes. Following the DPRC
Acquisition Date, the Borrower shall have commenced an offer to repurchase all
outstanding DPRC Convertible Subordinated Notes in accordance with the terms and
conditions of the Indenture governing the DPRC Convertible Subordinated Notes.
SECTION 9. Negative Covenants. The Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Commitment and
all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder and
thereunder, are paid in full:
9.01 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter acquired
without making effective provision, and the Borrower in each such case will make
effective provision, whereby the Obligations shall be secured by such Lien
equally and ratably with any and all other Indebtedness or obligations thereby
secured, so long as such other Indebtedness or obligations shall be so secured;
provided, however, that the foregoing shall not apply to any of the following
(Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes, assessments or governmental
charges or levies being contested in good faith and by appropriate
proceedings for which adequate reserves have been established in
accordance with generally accepted accounting principles;
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(ii) Liens in respect of property or assets of the Borrower or any
of its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money,
such as carriers', warehousemen's, materialmen's and mechanics' liens and
other similar Liens arising in the ordinary course of business, and (x)
which do not in the aggregate materially detract from the value of the
Borrower's or such Subsidiary's property or assets or materially impair
the use thereof in the operation of the business of the Borrower or such
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and
the property subject thereto described, in Schedule IV, but only to the
respective date, if any, set forth in such Schedule IV for the removal,
replacement and termination of any such Liens, plus renewals,
replacements and extensions of such Liens to the extent set forth on such
Schedule IV, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that
amount outstanding at the time of any such renewal, replacement or
extension and (y) any such renewal, replacement or extension does not
encumber any additional assets or properties of the Borrower or any of
its Subsidiaries (it being understood and agreed that the Borrower shall
not be required to schedule Liens in existence on the Effective Date to
the extent, but only to the extent, that such Liens are otherwise
permitted to independently exist pursuant to the other clauses of this
Section 9.01 (other than clauses (v), (vi), (xiii) and (xiv) );
(iv) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower or any of
its Subsidiaries;
(v) Liens upon assets of the Borrower or any of its Subsidiaries
subject to Capitalized Lease Obligations to the extent such Capitalized
Lease Obligations are permitted by Section 9.04(iv), provided that (x)
such Liens only serve to secure the payment of Indebtedness arising under
such Capitalized Lease Obligation and (y) the Lien encumbering the asset
giving rise to the Capitalized Lease Obligation does not encumber any
other asset of the Borrower or any Subsidiary of the Borrower;
(vi) Liens placed upon equipment, machinery or Real Property
acquired or constructed after the Effective Date and used in the ordinary
course of business of the Borrower or any of its Subsidiaries at the time
of the acquisition or construction thereof by the Borrower or any such
Subsidiary or within 90 days thereafter to secure Indebtedness incurred
to pay all or a portion of the purchase or construction price or to
secure Indebtedness incurred solely for the purpose of financing the
acquisition or construction of any such equipment, machinery or Real
Property or extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided that (x) such Indebtedness is
permitted by Section 9.04(iv) and (y) in all events, the Lien encumbering
the asset so acquired or acquired does not encumber any other asset of
the Borrower or such Subsidiary, as the case may be;
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(vii) easements, rights-of-way, zoning restrictions, encroachments
and other similar charges or encumbrances, and minor title deficiencies,
in each case not securing Indebtedness and not materially interfering
with the conduct of the business of the Borrower or any of its
Subsidiaries;
(viii) Liens arising from precautionary UCC financing statement
filings regarding operating leases;
(ix) Liens arising out of the existence of judgments or awards not
constituting an Event of Default under Section 10.08, provided that the
aggregate amount of all cash and the fair market value of all other
property pledged or deposited to secure all such judgments or awards
shall not exceed $20,000,000 at any time outstanding;
(x) statutory and common law landlords' liens under leases to which
the Borrower or any of its Subsidiaries is a party;
(xi) Liens (other than Liens imposed under ERISA) incurred in the
ordinary course of business in connection with workers compensation
claims, unemployment insurance and social security benefits;
(xii) Liens securing (x) the performance of bids, tenders, leases
and contracts in the ordinary course of business and consistent with past
practices and (y) statutory obligations, surety bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business and consistent with past practices (exclusive of obligations in
respect of the payment for borrowed money);
(xiii) Liens arising in connection with Sale-Leaseback Transactions
permitted by Section 9.02 so long as the only property subject to such
Liens is the equipment or Real Property the subject of such
Sale-Leaseback Transaction;
(xiv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower or
existing on any property or asset of any Person that becomes a Subsidiary
of the Borrower after the Effective Date prior to the time such Person
becomes a Subsidiary of the Borrower, provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary of the Borrower, as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary of the Borrower and (iii) such Lien shall
secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary of the Borrower,
as the case may be and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof;
(xv) Liens in favor of the United States or any State thereof, or
any department, agency or political subdivision of the United States or
any State thereof, to secure partial, progress, advance or other payments
pursuant to any contract or statute or to secure any
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Indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of constructing or improving the property
subject to such Liens;
(xvi) Liens in favor of any customer arising in respect of
performance deposits and partial, progress, advance or other payments
made by or on behalf of such customer for goods produced or to be
produced or for services rendered or to be rendered to such customer in
the ordinary course of business, which Liens shall not exceed the amount
of such deposits or payments; and
(xvii) other Liens incidental to the conduct of the business or the
ownership of the assets of the Borrower or any Subsidiary that (a) were
not incurred in connection with borrowed money and (b) do not secure
obligations in excess of $10,000,000 in the aggregate for all such Liens.
9.02 Sale-Leaseback Transactions. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any arrangement with any
Person providing for the leasing by the Borrower and/or one or more Subsidiaries
of the Borrower of any equipment or Real Property (except for temporary leases
for a term, including any renewal thereof, of not more than one year and except
for leases between the Borrower and one or more Subsidiaries of the Borrower or
between Subsidiaries of the Borrower) which equipment or Real Property has been
or is to be sold or transferred by the Borrower and/or such Subsidiary or
Subsidiaries to such Person (a "Sale-Leaseback Transaction") unless (i) the
Borrower and/or such Subsidiary or Subsidiaries would be entitled to incur
Indebtedness secured by a Lien on such equipment or Real Property without
equally and ratably securing the Obligations pursuant to the provisions of
Section 9.01 and (ii) the Borrower applies or causes to be applied an amount
equal to the Value of such Sale-Leaseback Transaction within 180 days of the
effective date of any arrangement either (x) to the purchase of other property
to be used in the business of the Borrower and its subsidiaries having a fair
value in the opinion of the Board of Directors of the Borrower at least equal to
the Value of such Sale-Leaseback Transaction and/or (y) to effect a permanent
reduction in the Total Commitment pursuant to Section 3.02(a).
Notwithstanding the provisions of Section 9.01 and this Section
9.02, (i) except for the Sale-Leaseback Transaction of the Farmington Hills
Property, the aggregate amount of all such Liens and Sale-Leaseback Transactions
permitted by this Section 9.02 at any time outstanding (as measured by the sum
of (I) all Indebtedness or other obligations secured by all such Liens then
outstanding or to be so created or assumed, and (II) the Value of all such
Sale-Leaseback Transactions then outstanding or to be so entered into) shall not
exceed 5% of Net Tangible Assets and (ii) the Borrower may consummate a
Sale-Leaseback Transaction of the Farmington Hills Property so long as the Total
Commitment is permanently reduced pursuant to Section 3.03(e) by an amount equal
to the Value of such Sale-Leaseback Transaction.
9.03 Fundamental Changes. The Borrower will not, and will not permit
any of its Subsidiaries to, consolidate with, merge into, or sell all or
substantially all of the assets of the Borrower and its Subsidiaries taken as a
whole (whether in a single transaction or in a series of
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related transactions) to any other Person or permit any other Person to merge
into it, except that the following shall be permitted:
(i) any Subsidiary of the Borrower may merge or consolidate with
another Subsidiary of the Borrower or with the Borrower so long as (x) in
the case of a merger or consolidation involving a Subsidiary Guarantor,
the Subsidiary Guarantor is the surviving Person, and (y) in the case of
a merger or consolidation involving the Borrower, the Borrower is the
surviving Person;
(ii) any Person may merge or consolidate with any Subsidiary of the
Borrower so long as (i) the surviving Person is, or as a result of such
merger or consolidation becomes, a Subsidiary of the Borrower, and (ii)
both before and immediately after giving effect to such merger or
consolidation, no Default or Event of Default shall have occurred and be
continuing; and
(iii) any Person may merge or consolidate with the Borrower so long
as (i) the Borrower is the surviving corporation, and (ii) both before
and immediately after giving effect to such merger or consolidation, no
Default or Event of Default shall have occurred and be continuing.
9.04 Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Indebtedness outstanding on the Effective Date and listed on
Schedule V, and giving effect to any subsequent extension, renewal or
refinancing thereof, provided that the aggregate principal amount of the
Indebtedness to be extended, renewed or refinanced does not increase from
that amount outstanding at the time of any such extension, renewal or
refinancing (it being understood and agreed that the Borrower shall not
be required to schedule Indebtedness in existence on the Effective Date
to the extent, but only to the extent, that such Indebtedness is
otherwise permitted to independently exist pursuant to the other clauses
of this Section 9.04 (other than clauses (iv), (viii) and (xiv));
(iii) Indebtedness under Interest Rate Protection Agreements entered
into with respect to other Indebtedness permitted under this Section
9.04;
(iv) Indebtedness of the Borrower and its Subsidiaries evidenced by
Capitalized Lease Obligations and purchase money Indebtedness of the type
described in Section 9.01(vi), provided that in no event shall the sum of
(I) the aggregate principal amount of all Capitalized Lease Obligations
and (II) the aggregate principal amount of all such purchase money
Indebtedness exceed $25,000,000 at any time outstanding;
(v) intercompany Indebtedness among the Borrower and its
Subsidiaries;
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(vi) subject to clause (xiii) of this Section 9.04, Indebtedness
consisting of guaranties by the Borrower and its Subsidiaries of other
Indebtedness of the Borrower and its Subsidiaries otherwise permitted to
be incurred under this Section 9.04;
(vii) Indebtedness under Other Hedging Agreements providing
protection against fluctuations in currency values in connection with the
Borrower's or any of its Subsidiaries' operations so long as management
of the Borrower or such Subsidiary, as the case may be, has determined in
good faith that the entering into of such Other Hedging Agreements are
bona fide hedging activities and are not for speculative purposes;
(viii) Indebtedness of a Subsidiary existing at the time of
acquisition thereof by the Borrower or a Subsidiary thereof (or
Indebtedness assumed at the time of such an acquisition of an asset
securing such Indebtedness), provided that such Indebtedness was not
incurred in connection with, or in contemplation of, such acquisition;
(ix) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business, so long as such
Indebtedness not otherwise constituting Indebtedness permitted under this
Section 9.04 is extinguished within five Business Days of the incurrence
thereof;
(x) Indebtedness in respect of bid, performance, advance payment or
surety bonds entered into in the ordinary course of business and
consistent with past practices;
(xi) Indebtedness of the Borrower or a Subsidiary thereof issued to
sellers as partial consideration for an acquisition by the Borrower or
such Subsidiary otherwise permitted under this Agreement so long as the
aggregate outstanding principal amount of all such Indebtedness permitted
under this clause (xi) does not exceed $25,000,000 at any time;
(xii) Indebtedness of the Borrower or a Subsidiary thereof under
royalty arrangements entered into by the Borrower or such Subsidiary so
long as (i) the aggregate outstanding amount of all such Indebtedness at
any time does not exceed $200,000,000 and (ii) no more than $25,000,000
in the aggregate of such Indebtedness is required to be repaid or prepaid
in any fiscal year of the Borrower;
(xiii) Indebtedness of the Borrower under Permitted Designated
Indebtedness so long as (i) at the time of each issuance of such
Permitted Designated Indebtedness, no Default or Event of Default then
exists or would result therefrom, (ii) such Permitted Designated
Indebtedness is unsecured and does not have any required maturity,
redemption, amortization or sinking fund obligations prior to the five
year anniversary of the Effective Date, (iii) such Permitted Designated
Indebtedness is not guarantied by any Subsidiary of the Borrower other
than a Subsidiary Guarantor, (iv) such Permitted Designated Indebtedness
is issued pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144A promulgated thereunder, (v) all
of the covenants and events of default governing such Permitted
Designated Indebtedness are
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customary for similar transactions and issuers and (vi) no more than
$500,000,000 in aggregate principal amount of all such Permitted
Designated Indebtedness may be outstanding at any time;
(xiv) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower may enter into an additional Capitalized
Lease Obligation in connection with a Sale-Leaseback Transaction of the
Farmington Hills Property; and
(xv) additional Indebtedness incurred by the Borrower and its
Subsidiaries in an aggregate principal amount not to exceed $25,000,000
at any time outstanding.
9.05 Investments. The Borrower will not, and will not permit any of
its Subsidiaries to, directly or indirectly, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person (collectively, "Investments"), except that the following shall
be permitted:
(i) Investments in the ordinary course of business and consistent
with past practices;
(ii) Intercompany Investments;
(iii) Investments existing on the Effective Date;
(iv) Investments by DPRC and its Subsidiaries existing on the DPRC
Acquisition Date and otherwise permitted pursuant to the terms of the
DPRC Merger Agreement; and
(v) other Investments in an aggregate amount not to exceed
$20,000,000 in any fiscal year of the Borrower (determined without regard
to any write-downs or write-offs thereof), net of cash payments of
principal in the case of loans and cash equity returns (whether as a
dividend or redemption) in the case of equity investments which (in
either case) are received in such fiscal year with respect to Investments
theretofore made in such fiscal year.
9.06 Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (i) in the ordinary course of business and at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties, (ii)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliate and (iii) any issuance of securities or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by
the Borrower and any loans or advances to officers, directors and employees of
the Borrower or its Subsidiaries in the ordinary course of business.
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9.07 Consolidated Interest Coverage Ratio. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any Test Period to be less
than 6.00:1.00.
9.08 Maximum Consolidated Leverage Ratio. The Borrower will not
permit the Consolidated Leverage Ratio at any time to exceed 2.25:1.00.
9.09 Minimum Consolidated Shareholders' Equity. The Borrower will
not permit Consolidated Shareholders' Equity at any time to be less than the
Minimum Consolidated Shareholders' Equity at such time.
9.10 Limitation on Restrictive Agreements. The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on (a) the ability of any Subsidiary of the Borrower to pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or any Subsidiary
of the Borrower, (b) the ability of any Subsidiary of the Borrower to make loans
or advances to the Borrower or any Subsidiary of the Borrower, (c) the ability
of any Subsidiary of the Borrower to transfer any of its properties or assets to
the Borrower or any Subsidiary of the Borrower, (d) the ability of the Borrower
or any Subsidiary of the Borrower to create, incur or permit to exist any Lien
on any of its property or assets or (e) the ability of any Subsidiary of the
Borrower to guaranty any Indebtedness of the Borrower or any other Subsidiary of
the Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary non-assignment, subletting or restriction on transfer
or net worth provisions of any contract, license or lease governing a leasehold
interest of any Subsidiary of the Borrower, (iv) any instrument governing
Indebtedness described in Section 9.04(viii), which restriction is not
applicable to any Person, or the property or assets of any Person, other than
the Person or the properties or assets acquired pursuant to the respective
acquisition, (v) agreements existing on the Effective Date to the extent and in
the manner such agreements are in effect on the Effective Date, (vi) any
agreement for the sale or disposition of capital stock or assets of any
Subsidiary of the Borrower pending the closing of such sale, provided that such
encumbrances and restrictions are only applicable to such Subsidiary or assets,
as applicable, and (vii) restrictions on the transfer of any asset subject to a
Lien permitted by Sections 9.01(iii), (v), (vi), (xiii) and (xiv).
9.11 Business; etc. The Borrower will not, and will not permit any
of its Subsidiaries to, engage in any businesses other than the businesses
engaged in by the Borrower and its Subsidiaries as of the Effective Date and
reasonable extensions thereof and other businesses that are complimentary or
reasonably related thereto.
9.12 End of Fiscal Years; Fiscal Quarters. The Borrower will not,
for financial reporting purposes, change its fiscal year end or its fiscal
quarter ends unless the Borrower shall have first given the Agents at least 45
days' prior written notice thereof and the Borrower, to the extent requested by
the Agents, shall have entered into an appropriate amendment to this
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Agreement to ensure that the financial covenants contained in Sections 9.07,
9.08 and 9.09 are measured on substantially the same basis as such covenants are
measured on the Effective Date.
SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when
due of any principal of any Loan or any Note or (ii) default, and such default
shall continue unremedied for three or more Business Days, in the payment when
due of any interest on any Loan or Note, any Unpaid Drawing (or any interest
thereon) or any Fees or any other amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any other Credit
Document or in any certificate delivered to any Agent or any Lender pursuant
hereto or thereto shall prove to be untrue in any material respect on the date
as of which made or deemed made; or
10.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(d)(i), 8.10, 8.12 or Section 9, or (ii) default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement or any other Credit Document (other than those set
forth in Sections 10.01 and 10.02) and such default shall continue unremedied
for a period of 30 days after written notice thereof to the defaulting party by
the Administrative Agent or the Required Lenders; or
10.04 Default Under Other Agreements. (i) The Borrower or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (y) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required), any such Indebtedness to
become due prior to its stated maturity, or (ii) any Indebtedness (other than
the Obligations) of the Borrower or any of its Subsidiaries shall be declared to
be (or shall become) due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof,
provided that it shall not be a Default or an Event of Default under this
Section 10.04 unless the aggregate principal amount of all Indebtedness as
described in preceding clauses (i) and (ii) is at least $20,000,000; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the
Borrower or any of its Subsidiaries, and the petition is not controverted within
10 days, or is not dismissed within 60 days, after
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commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Subsidiaries, or the Borrower or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower or any of its Subsidiaries, or there is
commenced against the Borrower or any of its Subsidiaries any such proceeding
which remains undismissed for a period of 60 days, or the Borrower or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or the Borrower or any of its Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Foreign Pension Plan has not been timely made, the Borrower or any Subsidiary of
the Borrower or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code, or the Borrower or any Subsidiary of the Borrower has incurred or is
likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or Plans or Foreign Pension Plans a "default," within the meaning of
Section 4219(c)(5) of ERISA, shall occur with respect to any Plan; any
applicable law, rule or regulation is adopted, changed or interpreted, or the
interpretation or administration thereof is changed, in each case after the date
hereof, by any governmental authority or agency or by any court (a "Change in
Law"), or, as a result of a Change in Law, an event occurs following a Change in
Law, with respect to or otherwise affecting any Plan; (b) there shall result
from any such event or events the imposition of a lien, the granting of a
security interest, or a liability or a material risk of incurring a liability;
and (c) such lien, security interest or liability, either
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individually and/or in the aggregate, has had, or could reasonably be expected
to have, a Material Adverse Effect; or
10.07 Subsidiaries Guaranty. The Subsidiaries Guaranty or any
provision thereof shall cease to be in full force or effect as to any Subsidiary
Guarantor, or any Subsidiary Guarantor or any Person acting by or on behalf of
such Subsidiary Guarantor shall deny or disaffirm such Subsidiary Guarantor's
obligations under the Subsidiaries Guaranty or such Subsidiary Guarantor shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to the Subsidiaries Guaranty;
or
10.08 Judgments. One or more judgments or decrees shall be entered
against the Borrower or any Subsidiary of the Borrower involving in the
aggregate for the Borrower and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments equals or exceeds
$20,000,000; or
10.09 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Administrative
Agent, any Lender or the holder of any Note to enforce its claims against any
Credit Party (provided, that, if an Event of Default specified in Section 10.05
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment terminated, whereupon the Commitment of each
Lender shall forthwith terminate immediately and any accrued and unpaid
Commitment Commission shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; (iii) terminate any Letter of Credit which
may be terminated in accordance with its terms; (iv) direct the Borrower to pay
(and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower, it will pay) to the Administrative Agent at the Payment Office such
additional amount of cash and/or Cash Equivalents, to be held as security by the
Administrative Agent, as is equal to the aggregate Stated Amount of all Letters
of Credit issued for the account of the Borrower and then outstanding; and (v)
apply any cash collateral held by the Administrative Agent pursuant to Section
4.02 to the repayment of the Obligations.
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SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Administrative Agent" shall mean Comerica, in its capacity as
Administrative Agent for the Lenders hereunder, and shall include any successor
to the Administrative Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all directors
and officers of such Person), controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to control another Person if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agents" shall mean and include the Lead Arranger and the
Administrative Agent.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended, renewed, refinanced or replaced from time to time.
"Applicable Commitment Commission Percentage" and "Applicable
Margin" shall mean, (i) with respect to Commitment Commission, the respective
percentage per annum set forth below under the column "Applicable Commitment
Commission Percentage" and opposite the respective Level (i.e., Level 1, Level
2, Level 3 or Level 4, as the case may be) that is currently then in effect
based on the Borrower's Debt Rating, and (ii) with respect to Revolving Loans
and Swingline Loans, the respective percentage per annum set forth below under
the column for the respective Type of Revolving Loans or Swingline Loans and
opposite the respective Level (i.e., Level 1, Level 2, Level 3 or Level 4, as
the case may be) that is currently then in effect based on the Borrower's Debt
Rating:
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<TABLE>
<CAPTION>
Applicable Applicable
Debt Margin for Margin for
Rating of Borrower Eurodollar Base Rate Applicable Commitment
Level Moody's/S&P Loans Loans Commission Percentage
----- ------------------ ----------- ---------- ---------------------
<S> <C> <C> <C> <C>
4 Baa1/BBB+ or higher 1.00% 0% .200%
3 Baa2/BBB 1.25% .25% .250%
2 Baa3/BBB- 1.50% .50% .300%
1 Ba1/BB+ or below 1.75% .75% .375%
</TABLE>
provided, however, (i) if there is a difference between the Debt Rating of
Moody's and S&P, the Level shall be determined by reference to the lower Debt
Rating, (ii) if there is only one Debt Rating, the Level shall be determined by
reference to that Debt Rating, (iii) if at any time no Debt Rating is available,
Level 1 pricing shall be in effect and (iv) notwithstanding the foregoing, Level
3 pricing shall apply for the period from the Effective Date through and
including February 3, 2000. Any change in the Applicable Commitment Commission
Percentage or in the Applicable Margin due to a change in the applicable Debt
Rating shall be effective on the effective date of such change in the applicable
Debt Rating.
"Assignment and Assumption Agreement" shall mean an Assignment and
Assumption Agreement substantially in the form of Exhibit H (appropriately
completed).
"Available Commitment" shall mean, at any time and for any Lender,
the Commitment of such Lender as then in effect less such Lender's Percentage of
the amount of the Blocked Commitment, if any, at such time.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" shall mean, at any time, the higher of (i) the Prime
Lending Rate and (ii) 1/2 of 1% in excess of the Federal Funds Rate at such
time.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) each
Revolving Loan designated or deemed designated as such by the Borrower at the
time of the incurrence thereof or conversion thereto.
"Blocked Commitment" shall mean (i) for the period from and
including the Effective Date through but not including the earliest of (x) the
DPRC Acquisition Date, (y) the date on which the Borrower has notified the
Agents in writing that the Borrower is no longer pursuing the DPRC Acquisition
and (z) October 15, 1999, $470,000,000, and (ii) for the period thereafter, $0.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
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"Borrowing" shall mean the borrowing of one Type of Revolving Loan
from all the Lenders (or from the Swingline Lender in the case of Swingline
Loans) on a given date (or resulting from a conversion or conversions on such
date) having in the case of Eurodollar Loans the same Interest Period, provided
that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered
part of the related Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York City, New York or Detroit, Michigan, a legal holiday or a day on
which banking institutions are authorized or required by law or other government
action to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (i) above and which is also
a day for trading by and between banks in the interbank Eurodollar market.
"Calculation Period" shall mean the Test Period most recently ended
on or prior to the date that the respective Material Acquisition is consummated.
"Capitalized Lease Obligations" shall mean, with respect to any
Person, all rental obligations of such Person which, under generally accepted
accounting principles, are or will be required to be capitalized on the books of
such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with such principles.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 et seq.
"Change of Control" shall mean (i) any Person or "group" (within the
meaning of Sections 13(d) and 14(d) under the Securities Exchange Act, as in
effect on the Effective Date), shall have (A) acquired beneficial ownership (as
such term is used in Rule 13d-3 under the Securities Exchange Act, as in effect
of the Effective Date) of 33% or more on a fully diluted basis of the voting
interest in the Borrower's voting capital stock or (B) obtained the power
(whether or not exercised) to elect a majority of the Borrower's directors or
(ii) the Board of Directors of the Borrower shall cease to consist of a majority
of Continuing Directors.
"Change of Law" shall have the meaning provided in Section 10.06.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect on the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"Comerica" shall mean Comerica Bank, in its individual capacity, and
any successor corporation thereto by merger, consolidation or otherwise.
"Commitment" shall mean, for each Lender, the amount set forth
opposite such Lender's name in Schedule I directly below the column entitled
"Commitment," as same may be
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(x) reduced from time to time pursuant to Sections 3.02, 3.03 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 13.04(b).
"Commitment Commission" shall have the meaning set forth in Section
3.01(a).
"Consolidated EBIT" shall mean, for any period, Consolidated Net
Income for such period before consolidated interest expense of the Borrower and
its Subsidiaries for such period and provision for taxes for such period and
without giving effect (x) to any extraordinary gains or losses and (y) to any
gains or losses from sales of assets other than from sales of inventory sold in
the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by adding thereto the amount of all amortization of
intangibles and depreciation that were deducted in arriving at Consolidated EBIT
for such period.
"Consolidated Indebtedness" shall mean, at any time, the amount of
all Indebtedness of the Borrower and its Subsidiaries as would be required to be
reflected on the liability side of a balance sheet of the Borrower at such time
in accordance with generally accepted accounting principles as determined on a
consolidated basis.
"Consolidated Interest Coverage Ratio" shall mean, for any period,
the ratio of Consolidated EBITDA to Consolidated Interest Expense for such
period.
"Consolidated Interest Expense" shall mean, for any period, the
total consolidated interest expense of the Borrower and its Subsidiaries for
such period plus, without duplication, the amount of any interest that is
required to be capitalized for such period; provided that the amortization of
deferred financing costs with respect to this Agreement shall be excluded from
Consolidated Interest Expense to the extent same would otherwise have been
included therein.
"Consolidated Leverage Ratio" shall mean, at any time, the ratio of
Consolidated Indebtedness at such time to Consolidated EBITDA for the Test
Period then most recently ended.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period, determined on a
consolidated basis; provided that (i) the net income of any other Person which
is not a Subsidiary of the Borrower or is accounted for by the Borrower by the
equity method of accounting shall be included only to the extent of the payment
of cash dividends or cash distributions by such other Person to the Borrower or
a Subsidiary thereof during such period, (ii) the net income of any Subsidiary
of the Borrower shall be excluded to the extent that the declaration or payment
of cash dividends or similar distributions by that Subsidiary of that income is
not at the time permitted by operation of the terms of its charter or any
agreement, instrument or law applicable to such Subsidiary and (iii) the net
income (or loss) of any other Person acquired by such specified Person or a
Subsidiary of such Person in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded.
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"Consolidated Shareholders' Equity" shall mean, at any time, the
amount which would appear as shareholders' equity on a consolidated balance
sheet of the Borrower and its Subsidiaries at such time in accordance with
generally accepted accounting principles.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person as a result of such Person being a general partner of the other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such primary
obligation or (y) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Continuing Directors" shall mean the directors of the Borrower on
the Effective Date and each other director if such director's nomination for
election to the Board of Directors of the Borrower is recommended by a majority
of the then Continuing Directors.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note and the Subsidiaries Guaranty.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary
Guarantor.
"Debt Rating" shall mean, on any date, the rating of the Borrower's
senior unsecured long-term Indebtedness, as most recently publicly announced by
Moody's and S&P.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
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<PAGE> 60
"Documents" shall mean the Credit Documents and after the execution
thereof, the DPRC Acquisition Documents.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower
that is incorporated under the laws of the United States or any State thereof.
"DPRC" shall mean Data Processing Resources Corporation, a
California corporation.
"DPRC Acquisition" shall mean, collectively, the DPRC Tender Offer
and the DPRC Merger.
"DPRC Acquisition Date" shall mean either (i) the date on which the
DPRC Tender Offer is consummated in accordance with the terms and conditions of
the DPRC Tender Offer Documents or (ii) in the event that the DPRC Tender Offer
expires without the Borrower or a Wholly-Owned Domestic Subsidiary thereof
consummating same in accordance with the terms of this Agreement, the date on
which the DPRC Merger is consummated in accordance with the terms and conditions
of the DPRC Merger Agreement.
"DPRC Acquisition Documents" shall mean the DPRC Tender Offer
Documents and the DPRC Merger Documents.
"DPRC Convertible Subordinated Notes" shall mean DPRC's $115,000,000
of 51/4% Convertible Subordinated Notes due 2005.
"DPRC Merger" shall mean the merger of a Wholly-Owned Domestic
Subsidiary of the Borrower with and into DPRC pursuant to the DPRC Merger
Agreement, with DPRC being the surviving corporation of such merger.
"DPRC Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of June 23, 1999, by and among the Borrower, a Wholly-Owned Domestic
Subsidiary thereof and DPRC.
"DPRC Merger Documents" shall mean the DPRC Merger Agreement, the
related certificate of merger and all other agreements and documents relating to
the DPRC Merger.
"DPRC Tender Offer" shall mean the offer by a Wholly-Owned Domestic
Subsidiary of the Borrower to purchase for cash all shares of common stock of
DPRC pursuant to the DPRC Tender Offer Documents.
"DPRC Tender Offer Documents" shall mean the Offer to Purchase,
dated June 30, 1999, delivered by a Wholly-Owned Domestic Subsidiary of the
Borrower with respect to the DPRC Tender Offer and all other documents and
agreements relating to the DPRC Tender Offer.
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"Drawing" shall have the meaning provided in Section 2.05(b).
"Effective Date" shall have the meaning provided in Section 13.10.
"Eligible Transferee" shall mean and include a commercial bank,
finance company, insurance company, financial institution, any fund that invests
in loans or any other "accredited investor" (as defined in Regulation D of the
Securities Act).
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
employee health and safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act of 1990, 33
U.S.C. Section 2701 et seq.; the Emergency Planning and the Community
Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Hazardous
Material Transportation Act, 49 U.S.C. Section 1801 et seq; the Occupational
Safety and Health Act, 29 U.S.C. Section 651 et seq.; and any state and local or
foreign counterparts or equivalents, in each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect on the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary
of the Borrower being or having been a general partner of such person.
"Eurodollar Loan" shall mean each Revolving Loan designated as such
by the Borrower at the time of the incurrence thereof or conversion thereto.
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"Eurodollar Rate" shall mean (a) the offered quotation by prime
banks in the interbank Eurodollar market to Comerica for Dollar deposits of
amounts in immediately available funds comparable to the outstanding principal
amount of the Eurodollar Loan of Comerica with maturities comparable to the
Interest Period applicable to such Eurodollar Loan commencing two Business Days
thereafter as of 11:00 A.M. (Detroit, Michigan time) on the date which is two
Business Days prior to the commencement of such Interest Period, divided (and
rounded upward to the nearest 1/16 of 1%) by (b) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves required by applicable law) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Existing Compuware Credit Facility" shall mean the Borrower's
existing $100,000,000 line of credit with Comerica.
"Existing DPRC Credit Facility" shall mean DPRC's existing
$60,000,000 term loan and revolving credit agreement (or any successor or
replacement facility).
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Farmington Hills Property" shall mean the Borrower's current
headquarters located at 31440 Northwestern Highway, Farmington Hills, Michigan.
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to 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 for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Final Maturity Date" shall mean August 3, 2003.
"Financial Officer" shall mean any of the chief financial officer,
the principal accounting officer or the treasurer of the Borrower.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States by the Borrower or any one or more of its
Subsidiaries primarily for the benefit of employees of the Borrower or such
Subsidiaries residing outside the United States, which plan, fund or other
similar program provides, or results in, retirement income, a deferral of income
in
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contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance the Release of which is prohibited, limited or
regulated by any governmental authority.
"Indebtedness" shall mean, as to any Person, without duplication,
(i) all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn under all letters of
credit issued for the account of such Person and all unpaid drawings in respect
of such letters of credit, (iii) all Indebtedness of the types described in
clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any
Lien on any property owned by such Person, whether or not such Indebtedness has
been assumed by such Person (provided that, if the Person has not assumed or
otherwise become liable in respect of such Indebtedness, such Indebtedness shall
be deemed to be in an amount equal to the fair market value of the property to
which such Lien relates as determined in good faith by such Person), (iv) the
aggregate amount required to be capitalized under leases under which such Person
is the lessee, (v) all obligations of such Person to pay a specified purchase
price for goods or services, whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vi) all Contingent Obligations of such
Person and (vii) all obligations under any Interest Rate Protection Agreement,
any Other Hedging Agreement or under any similar type of agreement.
Notwithstanding the foregoing, Indebtedness shall not include trade payables and
accrued expenses incurred by any Person in accordance with customary practices
and in the ordinary course of business of such Person.
"Information Systems and Equipment" shall mean all computer
hardware, firmware and software, as well as other information processing
systems, or any equipment containing embedded microchips, whether directly
owned, licensed, leased, operated or otherwise controlled by the Borrower or any
of its Subsidiaries, including through third-party service providers, and which,
in whole or in part, are used by, operated in, relied upon, or integral to, the
Borrower's or any of its Subsidiaries' conduct of their business.
"Intercompany Investment" shall mean (i) any Investment by the
Borrower in one or more of its Subsidiaries or in one or more other Persons
which, upon the making of such Investment, will become a Subsidiary of the
Borrower, (ii) any Investment by a Subsidiary of the Borrower in another
Subsidiary of the Borrower or in one or more other Persons which, upon the
making of such Investment, will become a Subsidiary of the Borrower or (iii) any
Investment by a Subsidiary of the Borrower in the Borrower.
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"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate
swap agreement, interest rate cap agreement, interest collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Investments" shall have the meaning provided in Section 9.05.
"Issuing Lender" shall mean Comerica and any other Lender which at
the request of the Borrower and with the consent of the Administrative Agent
agrees, in such Lender's sole discretion, to become an Issuing Lender for the
purpose of issuing Letters of Credit pursuant to Section 2.
"L/C Supportable Obligations" shall mean (i) obligations of the
Borrower or any of its Subsidiaries with respect to workers compensation, surety
bonds and other similar statutory obligations and (ii) such other obligations of
the Borrower or any of its Subsidiaries as are reasonably acceptable to the
respective Issuing Lender and otherwise permitted to exist pursuant to the terms
of this Agreement.
"Lead Arranger" shall have the meaning provided in the first
paragraph of this Agreement.
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed on Schedule I,
as well as any Person which becomes a "Lender" hereunder pursuant to Section
1.13 or 13.04(b).
"Lender Default" shall mean (i) the refusal (which has not been
retracted) or the failure of a Lender to make available its portion of any
Borrowing required to be made available by it hereunder (including any Mandatory
Borrowing) or to fund its portion of any unreimbursed payment under Section
2.04(c) or (ii) a Lender having notified in writing the Borrower and/or the
Administrative Agent that such Lender does not intend to comply with its
obligations under Section 1.01(a), 1.01(c) or 2, in the case of either clause
(i) or (ii) as a result of any takeover or control (including, without
limitation, as a result of the occurrence of any event of the type described in
Section 10.05 with respect to such Lender) of such Lender by any regulatory
authority or agency.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
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"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit at such
time and (ii) the amount of all Unpaid Drawings at such time.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Acquisition" shall mean the acquisition of any asset or
capital stock of any Person in which the aggregate cash purchase price
(including the amount of any Indebtedness being assumed or refinanced in
connection therewith) equals or exceeds $150,000,000.
"Material Adverse Effect" shall mean (i) a material adverse effect
on the business, operations, properties, assets, liabilities or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole
or (ii) a material adverse effect (x) on the rights or remedies of the Lenders
or the Administrative Agent hereunder or under any other Credit Document or (y)
on the ability of any Credit Party to perform its obligations to the Lenders or
the Administrative Agent hereunder or under any other Credit Document.
"Material Wholly-Owned Domestic Subsidiary" shall mean (i) the
Wholly-Owned Domestic Subsidiaries of the Borrower on the Effective Date, (ii)
from and after the consummation of the DPRC Merger, DPRC and its Wholly-Owned
Domestic Subsidiaries, (iii) from and after such time (if any) as Viasoft, Inc.
becomes a Wholly-Owned Domestic Subsidiary of the Borrower, Viasoft, Inc. and
its Wholly-Owned Domestic Subsidiaries, (iv) from and after such time (if any)
as PC becomes a Wholly-Owned Domestic Subsidiary of the Borrower, PC and its
Wholly-Owned Domestic Subsidiaries, and (v) each other Wholly-Owned Domestic
Subsidiary of the Borrower which, together with its Subsidiaries, accounts for
at least 5% of the consolidated revenues of the Borrower and its Subsidiaries
for the most recently ended fiscal quarter of the Borrower or has at least 5% of
the consolidated assets of the Borrower and its Subsidiaries as at the end of
the most recently ended fiscal quarter of the Borrower.
"Maximum Swingline Amount" shall mean $50,000,000.
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"Minimum Borrowing Amount" shall mean (i) for Revolving Loans,
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii) for
Swingline Loans, $1,000,000 or an integral multiple of $1,000,000 in excess
thereof.
"Minimum Consolidated Shareholders' Equity" shall mean, at any time,
the sum of (I) $636,750,000 plus (II) 50% of Consolidated Net Income, if
positive, for each quarterly accounting period of the Borrower (commencing with
its quarterly accounting period ending on September 30, 1999), it being
understood that any increase to the Minimum Consolidated Shareholders' Equity
shall be effective as of the last day of each quarterly accounting period of the
Borrower.
"Moody's" shall mean Moody's Investor Services, Inc.
"MSSF" shall mean Morgan Stanley Senior Funding, Inc., in its
individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise.
"NAIC" shall mean the National Association of Insurance
Commissioners.
"Net Tangible Assets" shall mean, at any date, the aggregate amount
of assets, after deducting therefrom (i) all current liabilities, and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expenses and other like intangibles, all of the foregoing as set forth on the
then most recent consolidated balance sheet of the Borrower and its Subsidiaries
and computed in accordance with generally accepted accounting principles.
"Non-Defaulting Lender" shall mean and include each Lender other
than a Defaulting Lender.
"Note" shall mean each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at 500 Woodward Avenue, Detroit, Michigan 48226, Attention: Nekold
Oliphant or such other office or individual as the Administrative Agent may
hereafter designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to each Agent, each
Issuing Lender, the Swingline Lender or any Lender pursuant to the terms of this
Agreement or any other Credit Document.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.04(a).
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"Payment Office" shall mean the office of the Administrative Agent
located at 500 Woodward Avenue, Detroit, Michigan 48226, or such other office as
the Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"PC" shall mean a Massachusetts corporation previously identified to
the Agents and the Lenders.
"Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Commitment of such
Lender at such time and the denominator of which is the Total Commitment at such
time, provided that if the Percentage of any Lender is to be determined after
the Total Commitment has been terminated, then the Percentages of the Lenders
shall be determined immediately prior (and without giving effect) to such
termination.
"Permitted Designated Indebtedness" shall mean any issue of
unsecured senior notes, unsecured senior subordinated notes and/or unsecured
subordinated notes (all of which may be convertible into common stock of the
Borrower) issued pursuant to, and satisfying the requirements of, Section
9.04(xiii).
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, limited liability company, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five-year period immediately
following the latest date on which the Borrower, or a Subsidiary of the Borrower
or an ERISA Affiliate, maintained, contributed to or had an obligation to
contribute to such plan.
"Prime Lending Rate" shall mean the rate which the Administrative
Agent announces from time to time as its prime lending rate, the Prime Lending
Rate to change when and as such prime lending rate changes. The Prime Lending
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. The Administrative Agent may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Pro Forma Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to any Material Acquisition, if
any, then being consummated as well as any other Material Acquisition
consummated after the first day of the relevant Calculation Period and on or
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prior to the date of the respective Material Acquisition then being effected,
with the following rules to apply in connection therewith:
(i) all Indebtedness (x) incurred to finance a Material Acquisition
to refinance Indebtedness associated with such Material Acquisition (including,
in either case, proceeds of Loans) or assumed in connection with such Material
Acquisition shall be deemed to have been incurred, issued or assumed (and the
proceeds thereof applied) on the first day of the respective Calculation Period
and have remained outstanding through the date of determination and (y)
permanently retired or redeemed as part of such Material Acquisition shall be
deemed to have been retired or redeemed on the first day of the respective
Calculation Period and remain retired through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest at (x) the rate
applicable thereto, in the case of fixed rate indebtedness or (y) the rates
which would have been applicable thereto during the respective period when same
was deemed outstanding, in the case of floating rate Indebtedness (although
interest expense with respect to any Indebtedness for periods while same was
actually outstanding during the respective period shall be calculated using the
actual rates applicable thereto while same was actually outstanding);
(iii) in making any determination of Consolidated EBITDA, pro forma
effect shall be given to any Material Acquisition for the periods described
above.
"Projections" shall mean the projections of the Borrower and its
Subsidiaries through its fiscal year ending March 31, 2003, which are dated July
16, 1999 and were delivered to the Agents prior to the Effective Date, which
projections were prepared after giving effect to the DPRC Acquisition (and the
related financing therefor).
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December occurring after the Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Register" shall have the meaning provided in Section 13.15.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
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"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" shall mean Non-Defaulting Lenders the sum of
whose Commitments (or after the termination thereof, outstanding Revolving Loans
and Percentages of (x) outstanding Swingline Loans and (y) Letter of Credit
Outstandings) represent an amount greater than 50% of the sum of the Total
Commitment less the Commitments of all Defaulting Lenders (or after the
termination thereof, the sum of the then total outstanding Revolving Loans of
all Non-Defaulting Lenders and the aggregate Percentages of all Non-Defaulting
Lenders of the total (x) outstanding Swingline Loans and (y) Letter of Credit
Outstandings at such time).
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"S&P" shall mean Standard & Poor's Rating Services.
"Sale-Leaseback Transaction" shall have the meaning provided in
Section 9.02.
"Scheduled Commitment Reduction" shall have the meaning provided in
Section 3.03(b).
"SEC" shall have the meaning provided in Section 8.01(e).
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
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"Stated Amount" of each Letter of Credit shall mean, at any time,
the maximum amount available to be drawn thereunder (in each case determined
without regard to whether any conditions to drawing could then be met).
"Subsidiaries Guaranty" shall have the meaning provided in Section
5A.08.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"Subsidiary Guarantor" shall mean each Material Wholly-Owned
Domestic Subsidiary of the Borrower.
"Swingline Expiry Date" shall mean that date which is two Business
Days prior to the Final Maturity Date.
"Swingline Lender" shall mean Comerica.
"Swingline Loan" shall have the meaning provided in Section 1.01(b).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Period" shall mean the four consecutive fiscal quarters of the
Borrower then last ended (taken as one accounting period).
"Total Available Commitment" shall mean, at any time, the Total
Commitment at such time less the Blocked Commitment, if any, at such time..
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Lenders at such time.
"Total Unutilized Commitment" shall mean, at any time, an amount
equal to the remainder of (x) the Total Commitment then in effect less (y) the
sum of the aggregate principal amount of all Revolving Loans and Swingline Loans
then outstanding plus the then aggregate amount of all Letter of Credit
Outstandings at such time.
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
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"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan determined on a plan termination basis in accordance with actuarial
assumptions at such time consistent with those prescribed by the PBGC for
purposes of Section 4044 of ERISA exceeds the market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided for in Section
2.05(a).
"Unutilized Commitment" shall mean, with respect to any Lender at
any time, such Lender's Commitment at such time less the sum of (i) the
aggregate outstanding principal amount of all Revolving Loans made by such
Lender at such time and (ii) such Lender's Percentage of the Letter of Credit
Outstandings at such time.
"Value" shall mean, with respect to a Sale-Leaseback Transaction, as
of any particular time, the amount equal to the greater of (a) the net proceeds
of the sale or transfer of the property leased pursuant to such Sale-Leaseback
Transaction or (b) the fair value in the opinion of the Board of Directors of
the Borrower of such property at the time of entering into such Sale-Leaseback
Transaction, in either case divided first by the number of full years of the
term of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
"Wholly-Owned Domestic Subsidiary" shall mean each Domestic
Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of the
Borrower.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person (other than
director's qualifying shares) and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest
at such time.
"Year 2000 Compliant" shall mean that all Information Systems and
Equipment accurately process date data (including, but not limited to,
calculating, comparing and sequencing), before, during and after the year 2000,
as well as same and multi-century dates, or between the years 1999 and 2000,
taking into account all leap years, including the fact that the year 2000 is a
leap year, and further, that when used in combination with, or interfacing with,
other Information Systems and Equipment, shall accurately accept, release and
exchange date data, and shall in all material respects continue to function in
the same manner as it performs on the Effective Date and shall not otherwise
impair the accurate or functionality of Information Systems and Equipment.
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SECTION 12. The Administrative Agent and the Lead Arranger.
12.01 Appointment. The Lenders hereby designate Comerica as
Administrative Agent to act as specified herein and in the other Credit
Documents. Each Lender hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent and the Lead Arranger to take such action on their
behalf under the provisions of this Agreement, the other Credit Documents and
any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent or the Lead
Arranger by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent and the Lead Arranger may perform
any of their duties hereunder by or through its officers, directors, agents,
employees or affiliates.
12.02 Nature of Duties. Neither the Administrative Agent nor the
Lead Arranger shall have any duties or responsibilities except those expressly
set forth in this Agreement and in the other Credit Documents. Neither the
Administrative Agent, the Lead Arranger nor any of its officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by them hereunder or under any other Credit Document or in connection herewith
or therewith, unless caused by its or their gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision). The duties of the Administrative Agent and the Lead
Arranger shall be mechanical and administrative in nature; neither the
Administrative Agent nor the Lead Arranger shall have by reason of this
Agreement or any other Credit Document a fiduciary relationship in respect of
any Lender or the holder of any Note; and nothing in this Agreement or any other
Credit Document, expressed or implied, is intended to or shall be so construed
as to impose upon the Administrative Agent or the Lead Arranger any obligations
in respect of this Agreement or any other Credit Document except as expressly
set forth herein or therein.
12.03 Lack of Reliance on the Administrative Agent and the Lead
Arranger. Independently and without reliance upon the Administrative Agent or
the Lead Arranger, each Lender and the holder of each Note, to the extent it
deemed or deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii)
its own appraisal of the creditworthiness of the Borrower and its Subsidiaries
and, except as expressly provided in this Agreement, neither the Administrative
Agent nor the Lead Arranger shall have any duty or responsibility, either
initially or on a continuing basis, to provide any Lender or the holder of any
Note with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter. Neither the Administrative Agent nor the Lead Arranger shall be
responsible to any Lender or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectability, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the
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Borrower or any of its Subsidiaries or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Credit Document, or the financial
condition of the Borrower or any of its Subsidiaries or the existence or
possible existence of any Default or Event of Default.
12.04 Certain Rights of the Agents. If any Agent shall request
instructions from the Required Lenders or all of the Lenders, as applicable,
with respect to any act or action (including failure to act) in connection with
this Agreement or any other Credit Document, such Agent shall be entitled to
refrain from such act or taking such action unless and until such Agent shall
have received instructions from the Required Lenders or all of the Lenders, as
applicable; and such Agent shall not incur liability to any Lender by reason of
so refraining. Without limiting the foregoing, no Lender nor the holder of any
Note shall have any right of action whatsoever against any Agent as a result of
such Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Lenders or all of
the Lenders, as applicable.
12.05 Reliance. The Administrative Agent and the Lead Arranger shall
be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone
message signed, sent or made by any Person that the Administrative Agent or the
Lead Arranger believed to be the proper Person, and, with respect to all legal
matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by the
Administrative Agent or the Lead Arranger, as the case may be.
12.06 Indemnification. To the extent the Administrative Agent or the
Lead Arranger is not reimbursed and indemnified by the Borrower or any of its
Subsidiaries, the Lenders will reimburse and indemnify the Administrative Agent
and the Lead Arranger in proportion to their respective "percentage" as used in
determining the Required Lenders (determined as if there were no Defaulting
Lenders) for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Administrative Agent or the Lead Arranger in performing its duties
hereunder or under any other Credit Document or in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's or the Lead Arranger's gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
12.07 The Administrative Agent and the Lead Arranger in their
Individual Capacity. With respect to their obligation to make Loans, or issue or
participate in Letters of Credit, under this Agreement, the Administrative Agent
and the Lead Arranger shall have the rights and powers specified herein for a
"Lender" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Lenders," "Required
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Lenders," "holders of Notes" or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent and the Lead
Arranger in their respective individual capacities. The Administrative Agent and
the Lead Arranger and their affiliates may accept deposits from, lend money to,
and generally engage in any kind of banking, investment banking, trust or other
business with, or provide debt financing, equity capital or other services
(including financial advisory services) to, any Credit Party or any Affiliate of
any Credit Party (or any Person engaged in a similar business with any Credit
Party or any Affiliate thereof) as if they were not performing the duties
specified herein, and may accept fees and other consideration from any Credit
Party or any Affiliate of any Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
12.08 Holders. Any Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice of
the assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Administrative Agent. Any request, authority or consent of
any Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or indorsee, as the case may be, of such
Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by, and Removal of the Administrative Agent and
the Lead Arranger. (a) The Administrative Agent and/or the Lead Arranger may
resign from the performance of all its respective functions and duties hereunder
and/or under the other Credit Documents at any time by giving 15 Business Days'
prior written notice to the Lenders, and the Required Lenders may at any time
remove the Administrative Agent with or without cause by giving 15 Business
Days' prior written notice thereof to the Administrative Agent and the Lead
Arranger. Such resignation or removal, in the case of the Administrative Agent,
shall take effect upon the appointment of a successor Administrative Agent
pursuant to clauses (b) and (c) below or as otherwise provided below, and such
resignation, in the case of the Lead Arranger, shall take effect immediately.
(b) Upon any such notice of resignation by, or removal of the,
Administrative Agent, the Required Lenders shall appoint a successor
Administrative Agent hereunder or thereunder who shall be a commercial bank,
trust company or other financial institution reasonably acceptable to the
Borrower, which acceptance shall not be unreasonably withheld or delayed
(provided that the Borrower's approval shall not be required if an Event of
Default then exists).
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed, provided that the Borrower's consent shall not be required if an Event
of Default then exists), shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided above.
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(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 20th Business Day after the date such notice
of resignation was given, or such notice of removal was received, by the
Administrative Agent, the Administrative Agent's resignation or removal shall
become effective and the Required Lenders shall thereafter perform all the
duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i) whether or
not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents (including, without limitation,
the reasonable fees and disbursements of White & Case LLP) in connection with
the preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the Agents in
connection with their syndication efforts with respect to this Agreement and of
the Agents and, after the occurrence of an Event of Default, each of the Lenders
in connection with the enforcement of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein or in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or pursuant to any
insolvency or bankruptcy proceedings (including, without limitation, in each
case the reasonable fees and disbursements of counsel and consultants for the
Agents and, after the occurrence of an Event of Default, counsel for each of the
Lenders); (ii) pay and hold each of the Lenders harmless from and against any
and all present and future stamp, excise and other similar documentary taxes
with respect to the foregoing matters and save each of the Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iii) indemnify each Agent and each Lender, and each of their
respective officers, directors, employees, representatives, agents and
affiliates from and hold each of them harmless against any and all liabilities,
obligations (including removal or remedial actions), losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys' and consultants' fees and disbursements) incurred by,
imposed on or assessed against any of them as a result of, or arising out of, or
in any way related to, or by reason of, (a) any investigation, litigation or
other proceeding (whether or not any Agent or any Lender is a party thereto and
whether or not such investigation, litigation or other proceeding is brought by
or on behalf of any Credit Party) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any
Letter of Credit or the proceeds of any Loans hereunder or the consummation of
any of the transactions contemplated herein or in any other Credit Document or
the exercise of any of their rights or remedies provided herein or in the other
Credit Documents, or (b) the actual or alleged presence of Hazardous Materials
in the air, surface water or groundwater or on the surface or subsurface of any
Real Property owned, leased or at any time operated by the Borrower or any of
its Subsidiaries, the generation, storage, transportation, handling, release or
disposal of Hazardous Materials by the Borrower or any of its Subsidiaries at
any location, whether or not owned, leased or operated by the Borrower or any of
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its Subsidiaries, the non-compliance of any Real Property owned, leased or at
any time operated by the Borrower or any of its Subsidiaries with foreign,
federal, state and local laws, regulations, and ordinances (including applicable
permits thereunder) applicable to any Real Property, or any Environmental Claim
asserted against the Borrower, any of its Subsidiaries or any Real Property
owned, leased or at any time operated by the Borrower or any of its
Subsidiaries, including, in each case, without limitation, the reasonable fees
and disbursements of counsel and other consultants incurred in connection with
any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified (as determined by a court of competent jurisdiction in a final and
non-appealable decision)). To the extent that the undertaking to indemnify, pay
or hold harmless any Agent or any Lender set forth in the preceding sentence may
be unenforceable because it is violative of any law or public policy, the
Borrower shall make the maximum contribution to the payment and satisfaction of
each of the indemnified liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Agent and each Lender is hereby authorized at any time or from
time to time, without presentment, demand, protest or other notice of any kind
to any Credit Party or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by
such Agent or Lender (including, without limitation, by branches and agencies of
such Agent or Lender wherever located) to or for the credit or the account of
any Credit Party against and on account of the Obligations and liabilities of
the Credit Parties to such Agent or Lender under this Agreement or under any of
the other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Lender pursuant to Section 13.06(b), and all other
claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such
Agent or Lender shall have made any demand hereunder and although said
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
13.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents; if to any Lender, at its address specified on Schedule II; and
if to the Administrative Agent, at the Notice Office; or, as to any Credit Party
or the Administrative Agent, at such other address as shall be designated by
such party in a written notice to the other parties hereto and, as to each
Lender, at such other address as shall be designated by such Lender in a written
notice to the Borrower and the Administrative Agent. All such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent, the Lead Arranger and the Borrower
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shall not be effective until received by the Administrative Agent, the Lead
Arranger or the Borrower, as the case may be.
13.04 Benefit of Agreement; Assignments; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto; provided,
however, the Borrower may not assign or transfer any of its rights, obligations
or interest hereunder without the prior written consent of each of the Lenders
and, provided further, that, although any Lender may transfer, assign or grant
participations in its rights hereunder, such Lender shall remain a "Lender" for
all purposes hereunder (and may not transfer or assign all or any portion of its
Loans or Commitment hereunder except as provided in Sections 1.13 and 13.04(b))
and the transferee, assignee or participant, as the case may be, shall not
constitute a "Lender" hereunder and, provided further, that no Lender shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Revolving Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the Final Maturity Date) in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment, shall not constitute a change in the terms of such
participation, and that an increase in the Commitment of any Lender shall be
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof) or (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement. In the case of any such participation, the participant
shall not have any rights under this Agreement or any of the other Credit
Documents (the participant's rights against such Lender in respect of such
participation to be those set forth in the agreement executed by such Lender in
favor of the participant relating thereto) and all amounts payable by the
Borrower hereunder shall be determined as if such Lender had not sold such
participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may (x) assign all or a portion of its
Commitment and related outstanding Obligations hereunder to (i) its parent
company and/or any affiliate of such Lender which is at least 50% owned by such
Lender or its parent company or to one or more Lenders or (ii) in the case of
any Lender that is a fund that invests in loans, any other fund that invests in
loans and is managed or advised by the same investment advisor of such Lender or
by an Affiliate of such investment advisor or (y) assign all, or if less than
all, a portion equal to at least $5,000,000 in the aggregate for the assigning
Lender or assigning Lenders, of such Commitment or Commitments and related
outstanding Obligations hereunder to one or more Eligible Transferees (treating
any fund that invests in loans and any other fund that invests in loans and is
managed or advised by the same investment advisor of such fund or by an
Affiliate of such investment advisor as a single Eligible Transferee), each of
which assignees shall become a party to this Agreement as a Lender by execution
of an Assignment and Assumption Agreement, provided that, (i) at such time
Schedule I shall be deemed modified to reflect the Commitments and/or
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outstanding Revolving Loans, as the case may be, of such new Lender and of the
existing Lenders, (ii) upon the surrender of the relevant Revolving Note by the
assigning Lender (or, upon such assigning Lenders indemnifying the Borrower for
any lost Revolving Note pursuant to a customary indemnification agreement) a new
Revolving Note will be issued, at the Borrower's expense, to such new Lender and
to the assigning Lender upon the request of such new Lender or assigning Lender,
such new Revolving Note to be in conformity with the requirements of Section
1.05 (with appropriate modifications) to the extent needed to reflect the
revised Commitments and/or outstanding Revolving Loans, as the case may be,
(iii) the consent of the Administrative Agent and, so long as no Default or
Event of Default then exists, the consent of the Borrower, shall be required in
connection with any assignment to an Eligible Transferee pursuant to clause (y)
above (each of which consents shall not be unreasonably withheld or delayed),
(iv) the Administrative Agent shall receive at the time of each such assignment,
from the assigning or assignee Lender, the payment of a non-refundable
assignment fee of $3,500 (or $1,500 in the case of an assignment between or
among existing Lenders and/or their affiliates) and (v) no such transfer or
assignment will be effective until recorded by the Administrative Agent on the
Register pursuant to Section 13.15. To the extent of any assignment pursuant to
this Section 13.04(b), the assigning Lender shall be relieved of its obligations
hereunder with respect to its assigned Commitment and outstanding Revolving
Loans. At the time of each assignment pursuant to this Section 13.04(b) to a
Person which is not already a Lender hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for Federal
income tax purposes, the respective assignee Lender shall, to the extent legally
entitled to do so, provide to the Borrower the appropriate Internal Revenue
Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate) described
in Section 4.04(b). To the extent that an assignment of all or any portion of a
Lender's Commitment and related outstanding Obligations pursuant to Section 1.13
or this Section 13.04(b) would, at the time of such assignment, result in
increased costs under Section 1.10, 2.06 or 4.04 from those being charged by the
respective assigning Lender prior to such assignment, then the Borrower shall
not be obligated to pay such increased costs (although the Borrower, in
accordance with and pursuant to the other provisions of this Agreement, shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit (i) any
Lender from pledging its Revolving Loans and Revolving Note hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank or (ii) any Lender which is a fund from pledging all or any
portion of its Revolving Loans and Revolving Note to its trustee in support of
its obligations to its trustee. No pledge pursuant to this clause (c) shall
release the transferor Lender from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the
part of any Agent, any Issuing Lender, the Swingline Lender or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit Party
and any Agent, any Issuing Lender, the Swingline Lender or any Lender shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder.
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The rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which any Agent, any Issuing Lender, the Swingline Lender or any Lender would
otherwise have. No notice to or demand on any Credit Party in any case shall
entitle any Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of any Agent, any
Issuing Lender, the Swingline Lender or any Lender to any other or further
action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its pro rata share of any such
payment) pro rata based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Revolving Loans, Unpaid Drawings, Commitment Commission or Letter of
Credit Fees, of a sum which with respect to the related sum or sums received by
other Lenders is in a greater proportion than the total of such Obligation then
owed and due to such Lender bears to the total of such Obligation then owed and
due to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the respective
Credit Party to such Lenders in such amount as shall result in a proportional
participation by all the Lenders in such amount; provided that if all or any
portion of such excess amount is thereafter recovered from such Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations; Accounting Terms. (a) The
financial statements to be furnished to the Lenders pursuant hereto shall be
made and prepared in accordance with generally accepted accounting principles in
the United States consistently applied throughout the periods involved (except
as set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Lenders); provided that, except as otherwise specifically
provided herein, (x) all computations and all definitions used in determining
compliance with Sections 9.02 and 9.07 through 9.09, inclusive, shall utilize
accounting principles and policies in conformity with those used to prepare the
historical financial statements of the Borrower referred to in Section 7.05(a)
(i), and (y) all computations and all definitions used in determining
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compliance with Sections 9.07 and 9.08 shall be determined on a Pro Forma Basis
to give effect to any Material Acquisition.
(b) All computations of interest, Commitment Commission and other
Fees hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including (in each case) the first day but excluding the last
day; except that in the case of Letter of Credit Fees and Facing Fees, the last
day shall be included) occurring in the period for which such interest,
Commitment Commission or other Fees are payable; provided that interest in
respect of Base Rate Loans determined by reference to the Prime Lending Rate
shall be made on the basis of a year of 365 or 366 days, as the case may be, for
the actual number of days occurring in the period for which such interest is
payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK IN EACH CASE WHICH ARE LOCATED IN THE CITY
OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT
ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER IT, AND AGREES NOT TO PLEAD OR
CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH
COURTS LACK PERSONAL JURISDICTION OVER IT. THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS
AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE
OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.
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(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the
date (the "Effective Date") on which (i) the Borrower, the Agents and the
Lenders shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Administrative Agent at
the Notice Office or, in the case of the Lenders, shall have given to the
Administrative Agent telephonic (confirmed in writing), written or telex notice
(actually received) at such office that the same has been signed and mailed to
it, and (ii) the conditions contained in Section 5A are met to the satisfaction
of the Agents. The Administrative Agent will give the Borrower and each Lender
prompt written notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected in the case of following clause (i)), (i)
extend the final scheduled maturity of any Loan or Note or extend the stated
expiration date of any Letter of Credit beyond the Final Maturity Date, or
reduce the rate or extend the time of payment of interest or Fees thereon, or
reduce the principal amount thereof (except in connection with a waiver of
applicability of any post-default increase in interest rates), (ii) release all
or
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substantially all of the Subsidiary Guarantors under the Subsidiaries Guaranty
(except in connection with a sale of such Subsidiary Guarantor in accordance
with the terms of this Agreement), (iii) amend, modify or waive any provision of
this Section 13.12 (except for technical amendments with respect to additional
extensions of credit under this Agreement of the type which afford the
protections to such additional extensions of credit provided to the Commitments
on the Effective Date), (iv) reduce the percentage specified in the definition
of Required Lenders (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the same
basis as the Commitments are included on the Effective Date) or (v) consent to
the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement; provided further, that no such change, waiver, discharge
or termination shall (1) increase the Commitment of any Lender over the amount
thereof then in effect without the consent of such Lender (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Lender, and that an increase in
the available portion of the Commitment of any Lender shall not constitute an
increase of the Commitment of such Lender), (2) without the consent of the
respective Issuing Lender, amend, modify or waive any provision of Section 2 or
alter its rights or obligations with respect to Letters of Credit, (3) without
the consent of the Swingline Lender, alter the Swingline Lender's rights or
obligations with respect to Swingline Loans, or (4) without the consent of the
respective Agent, amend, modify or waive any provision of Section 12 or any
other provision as same relates to the rights or obligations of such Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clauses (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders with
one or more Replacement Lenders pursuant to Section 1.13 so long as at the time
of such replacement, each such Replacement Lender consents to the proposed
change, waiver, discharge or termination or (B) terminate such non-consenting
Lender's Commitment and/or repay the outstanding Revolving Loans of such Lender
and cash collateralize its applicable Percentage of the Letter of Credit
Outstandings in accordance with Sections 3.02(b) and 4.01(b), provided that,
unless the Commitment that is terminated, and Revolving Loans repaid, pursuant
to preceding clause (B) are immediately replaced in full at such time through
the addition of new Lenders or the increase of the Commitments and/or
outstanding Revolving Loans of existing Lenders (who in each case must
specifically consent thereto), then in the case of any action pursuant to
preceding clause (B) the Required Lenders (determined after giving effect to the
proposed action) shall specifically consent thereto, provided further, that in
any event the Borrower shall not have the right to replace a Lender, terminate
its Commitment or repay its Revolving Loans solely as a result of the exercise
of such Lender's rights (and the withholding of any required consent by such
Lender) pursuant to the second proviso to Section 13.12(a).
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13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall survive
the execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Obligations.
13.14 Domicile of Loans. Each Lender may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or Affiliate of such
Lender. Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 13.14 would, at the time of
such transfer, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04
from those being charged by the respective Lender prior to such transfer, then
the Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 Register. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's Administrative Agent, solely for purposes of
this Section 13.15, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Lenders, the Loans made
by each of the Lenders and each repayment in respect of the principal amount of
the Loans of each Lender. Failure to make any such recordation, or any error in
such recordation, shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitment of such Lender
and the rights to the principal of, and interest on, any Revolving Loan made
pursuant to such Commitment shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitment and Revolving Loans and prior to such recordation
all amounts owing to the transferor with respect to such Commitment and
Revolving Loans shall remain owing to the transferor. The registration of
assignment or transfer of all or part of any Commitments and Revolving Loans
shall be recorded by the Administrative Agent on the Register only upon the
acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 13.04(b). Coincident
with the delivery of such an Assignment and Assumption Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Revolving Loan, or as soon thereafter as practicable, the
assigning or transferor Lender shall surrender the Revolving Note evidencing
such Revolving Loan, and thereupon one or more new Revolving Notes in the same
aggregate principal amount shall be issued to the assigning or transferor Lender
and/or the new Lender. The Borrower agrees to indemnify the Administrative Agent
from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.15.
13.16 Confidentiality. (a) Subject to the provisions of clause (b)
of this Section 13.16, each Agent and each Lender agrees that it will use its
reasonable efforts not to disclose without the prior consent of the Borrower
(other than to its employees, auditors, advisors or counsel or to another Lender
if such Agent or Lender or such Agent's or Lender's holding or parent company in
its sole discretion determines that any such party should have access to such
information, provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Agent or Lender) any information with
respect to the Borrower or any of its
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Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Credit Document and which is designated by the Borrower to the
Agents and Lenders in writing as confidential, provided that the Agents and the
Lenders may disclose any such information (i) as has become generally available
to the public other than by virtue of a breach of this Section 13.16(a) by the
Agents or the respective Lender, (ii) as may be required or appropriate in any
report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Agent or
Lender or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or elsewhere)
or their successors, (iii) as may be required or appropriate in respect to any
summons or subpoena or in connection with any litigation, (iv) in order to
comply with any law, order, regulation or ruling applicable to such Agent or
Lender, (v) to each of the Agents and (vi) to any prospective or actual
transferee or participant in connection with any contemplated transfer or
participation of any of the Revolving Notes or Commitments or any interest
therein by such Lender, provided that such prospective transferee or participant
agrees to be bound by the confidentiality provisions contained in this Section
13.16.
(b) The Borrower hereby acknowledges and agrees that each Agent and
each Lender may share with any of its affiliates any information related to the
Borrower or any of its Subsidiaries (including, without limitation, any
nonpublic customer information regarding the creditworthiness of the Borrower
and its Subsidiaries), provided such Persons shall be subject to the provisions
of this Section 13.16 to the same extent as such Agent or Lender.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
31440 Northwestern Highway COMPUWARE CORPORATION
Farmington Hills, MI 48334-2534
Telephone: 248-737-7557
Telecopier: 248-737-1822 By: /s/ Eliot R. Stark
Attention: Eliot R. Stark -------------------------------
Title: Executive Vice President
<PAGE> 86
MORGAN STANLEY SENIOR FUNDING, INC.,
Individually, and as Lead Arranger,
Syndication Agent and Book Manager
By: /s/ R. Bram Smith
------------------------
Title: Managing Director
<PAGE> 87
COMERICA BANK,
Individually, and as Administrative
Agent and Co-Arranger
By: /s/ Gregory N. Block
----------------------
Title: Vice President
<PAGE> 88
SCHEDULE I
COMMITMENTS
<TABLE>
<CAPTION>
Lender Commitment
- ------ ------------------
<S> <C>
Morgan Stanley Senior Funding, Inc. $ 540,000,000.00
Comerica Bank $ 360,000,000.00
------------------
TOTAL $ 900,000,000.00
</TABLE>
<PAGE> 89
SCHEDULE II
LENDER ADDRESSES
Bank Address
- ---- -------
Morgan Stanley Senior Funding, Inc. 1585 Broadway
New York, NY 10036
Attn: James Morgan
Tel. No.: (212) 761-4866
Fax No.: (212) 761-0592
with a copy to:
1585 Broadway
New York, NY 10036
Attn: Todd Vannucci
Tel. No.: (212) 761-1053
Fax No.: (212) 761-0322
Comerica Bank 500 Woodward Avenue
Detroit, MI 48226-3280
Attn: Timothy O'Rourke
Tel. No.: (313) 222-7044
Fax No.: (313) 222-9516
<PAGE> 90
Schedule III
SUBSIDIARIES
<TABLE>
<CAPTION>
NAME OF SUBSIDIARY SHAREHOLDER(S) BY PERCENT
JURISDICTION OF INCORPORATION
- ----------------------------------------------------------------------------------------
<S> <C> <C>
1. Compuware International Ltd., a Michigan Compuware Corporation 100%
corporation
2. CV Acquisition, Inc., a Delaware corporation Compuware Corporation 100%
3. Lighting Acquisition, Inc., a Massachusetts Compuware Corporation 100%
corporation
4. Reliant Data Systems, Inc., a Delaware corporation Compuware Corporation 100%
5. MIS International, Inc., a Michigan Corporation Compuware Corporation 100%
6. Compuware Global Services, Inc., a Michigan Compuware Corporation 100%
corporation
7. Comp Acquisition, Inc., a California corporation Compuware Corporation 100%
8. Compuware Asia-Pacific Holdings, Ltd., a Hong Kong Compuware Corporation 100%
corporation
9. Compuware Asia-Pacific Pty. Ltd., an Australian Compuware Corporation 98.5%
limited corporation
Compuware Int'l Ltd. 1.45%
10. Compuware Asia-Pacific Pte. Ltd., a Singapore Compuware Corporation 100%
corporation
11. Compuware Asia Pacific Ltd. Hong Kong, a Hong Kong Compuware Corporation 100%
corporation
12. Compuware Systems Support Center Co, Ltd., a Compuware Corporation 100%
Japanese corporation
13. Compuware FSC, a Barbados corporation Compuware Corporation 100%
14. Compuware AS de Mexico, a Mexican corporation Compuware Corporation 96.7%
Compuware Int'l Ltd. 3.33%
15. Compuware do Brazil, a Brazilian corporation Compuware Corporation 100%
16. Compuware System Software, B.V., a Netherlands Compuware Corporation 99.9%
corporation
Compuware Int'l Ltd. 0.1%
17. Compuware Corporation of Canada, a Canadian
corporation Compuware Corporation 100%
18. Compuware Nordic AS, a Norwegian corporation Compuware Corporation 100%
19. Compuware Denmark AS, a Danish corporation Compuware Int'l Ltd. 100%
20. Compuware Korea AB, a Korean corporation Compuware Int'l Ltd. 100%
21. Compuware Ltd., a U.K. limited corporation Compuware Int'l Ltd. 100%
22. NuMega UK Ltd., a U.K. limited corporation Compuware Corporation 100%
23. Compuware AG, a Swiss corporation Compuware Int'l Ltd. 100%
24. Compuware GmbH Austria, an Austrian corporation Compuware Int'l Ltd. 100%
25. Compuware Srl, an Italian corporation Compuware Corporation 2.5%
Compuware Int'1 Ltd. 97.5%
26. Compuware Sweden AB, a Swedish corporation Compuware Int'l Ltd. 100%
27. Compuware S.A.R.L., a French corporation Compuware Int'l Ltd. 100%
28. Compuware NV/SA, a Belgian corporation Compuware Int'l Ltd. 99.9%,
Compuware Corporation 0.1%
29. Compuware BV, a Netherlands corporation Compuware Int'l Ltd. 100%
30. Compuware GmbH, a German corporation Compuware Int'l Ltd. 99%
Compuware Corporation 1%
31. Compuware SA, a Spanish corporation Compuware Int'l Ltd. 100%
32. Compuware Portugal SA, a Portuguese corporation Compuware Int'l Ltd. 100%
</TABLE>
<PAGE> 91
Schedule IV
EXISTING LIENS
None
<PAGE> 92
Schedule V
EXISTING INDEBTEDNESS
<TABLE>
<S> <C> <C> <C>
Compuware Corporation
Due Date
Initial Funding Caretech Solutions, Inc. 2,000,000.00 USD On Demand
Share Purchase 22370 Michigan Avenue
Dearborn, Michigan 48124
Acquisition Vireo Software, Inc. 200,000.00 USD 10/21/99
Indemnity 30 Monument Square
Escrow Concord, Massachusetts 01742
Acquisition Cardume Software Ltd. 250,000.00 USD 12/29/99
Indemnity Kissat Court
Escrow 29 Parliament Street
Ramsey, Isle of Man
United Kingdom
Compuware Ltd.
Acquisition Julian Leach 1,854,738.00 GBP
Loan Note 28 Gartmoor Gardens
Southfield, London SW19 6NY
Acquisition Trust-Fiona Leach 6,889.00 GBP
Loan Note
Acquisition Varina Elizabeth Leach 6,889.00 GBP
Loan Note
Acquisition Kishor Girdhar Gohill 126,618.00 GBP
Loan Note 8 Mornington Avenue
Gants Hill, Ilford, Essex IG1 3QT
Acquisition Peter Mulreid 1,017,572.00 GBP
Loan Note Oaken Coppice House, Mill Lane
Cookham, Berks SL6 9QT
Acquisition Trust-Thomas Mulreid 6,889.00 GBP
Loan Note
Acquisition Majella Bernadette Mulreid 52,525.00 GBP
Loan Note
Acquisition Mark Travis 508,672.00 GBP
Loan Note 15, Ashley Park Road
Walton on Thames
Surrey, KT12 1JU
Acquisition Phillipa Mary Travis 52,525.00 GBP
Loan Note
Acquisition Trust-Jack Travis 6,889.00 GBP
Loan Note
</TABLE>
<PAGE> 93
Exhibit A
FORM OF NOTICE OF BORROWING
[Date]
Comerica Bank,
as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Nekold Oliphant
Ladies and Gentlemen:
The undersigned, Compuware Corporation (the "Borrower"), refers to
the Credit Agreement, dated as of August 3, 1999 (as amended, modified or
supplemented from time to time, the "Credit Agreement," the terms defined
therein being used herein as therein defined), among the Borrower, the lenders
from time to time party thereto (the "Lenders"), you, as Administrative Agent
for such Lenders, and Morgan Stanley Senior Funding, Inc., as Lead Arranger,
Syndication Agent and Book Manager, and hereby gives you notice, irrevocably,
pursuant to Section 1.03(a) of the Credit Agreement, that the undersigned hereby
requests a Borrowing of Revolving Loan under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 1.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________.(1)
(ii) The aggregate principal amount of the Proposed Borrowing is
$____________.
(iii) The Revolving Loans to be made pursuant to the Proposed
Borrowing shall be initially maintained as [Base Rate Loans] [Eurodollar Loans].
- -------------------------
(1) Shall be a Business Day at least one Business Day in the case of Base Rate
Loans and at least three Business Days in the case of Eurodollar Loans, in
each case, after the date hereof provided that (in each case) any such
notice shall be deemed to have been given on a certain day only if given
before 12:00 Noon (Detroit, Michigan time) on such day.
<PAGE> 94
Exhibit A
Page 2
[(iv) The initial Interest Period for the Proposed Borrowing is
month(s).](2)
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and correct in
all material respects, both before and after giving effect to the Proposed
Borrowing and to the application of the proceeds thereof, as though made on such
date, unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of the
proceeds thereof.
Very truly yours,
COMPUWARE CORPORATION
By
----------------------------
Name:
Title:
- -------------------------
(2) To be included for a Proposed Borrowing of Eurodollar Loans.
<PAGE> 95
Exhibit B-1
FORM OF REVOLVING NOTE
$__________ New York, New York
[Date]
FOR VALUE RECEIVED, COMPUWARE CORPORATION, a Michigan corporation
(the "Borrower"), hereby promises to pay to or its registered assigns (the
"Lender"), in lawful money of the United States of America in immediately
available funds, at the office of Comerica Bank (the "Administrative Agent")
located at 500 Woodward Avenue, Detroit, Michigan 48226 on the Final Maturity
Date (as defined in the Credit Agreement referred to below) the principal sum of
_____________ DOLLARS ($________) or, if less, the unpaid principal amount of
all Revolving Loans (as defined in the Credit Agreement) made by the Lender
pursuant to the Credit Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, dated as of August 3, 1999, among the Borrower, the lenders from time
to time party thereto (including the Lender), the Administrative Agent, and
Morgan Stanley Senior Funding, Inc., as Lead Arranger, Syndication Agent and
Book Manager (as amended, modified or supplemented from time to time, the
"Credit Agreement"), and is entitled to the benefits thereof and of the other
Credit Documents (as defined in the Credit Agreement). This Note is entitled to
the benefits of the Subsidiaries Guaranty (as defined in the Credit Agreement).
This Note is subject to voluntary prepayment and mandatory repayment prior to
the Final Maturity Date, in whole or in part, as provided in the Credit
Agreement.
In case an Event of Default (as defined in the Credit Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may become or be declared to be due and payable in the manner and with the
effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
<PAGE> 96
Exhibit B-1
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
COMPUWARE CORPORATION
By
-----------------------------
Name:
Title:
<PAGE> 97
Exhibit B-2
FORM OF SWINGLINE NOTE
$________________ New York, New York
[Date]
FOR VALUE RECEIVED, COMPUWARE CORPORATION, a Michigan corporation
(the "Borrower"), hereby promises to pay to COMERICA BANK or its registered
assigns (the "Lender"), in lawful money of the United States of America in
immediately available funds, at the office of Comerica Bank (the "Administrative
Agent") located at 500 Woodward Avenue, Detroit, Michigan 48226 on the Swingline
Expiry Date (as defined in the Credit Agreement referred to below) the principal
sum of _____________ DOLLARS ($_________) or, if less, the unpaid principal
amount of all Swingline Loans (as defined in the Credit Agreement) made by the
Lender pursuant to the Credit Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Credit Agreement.
This Note is the Swingline Note referred to in the Credit Agreement,
dated as of August 3, 1999, among the Borrower, the lenders from time to time
party thereto (including the Lender), the Administrative Agent, and Morgan
Stanley Senior Funding, Inc., as Lead Arranger, Syndication Agent and Book
Manager (as amended, modified or supplemented from time to time, the "Credit
Agreement") and is entitled to the benefits thereof and of the other Credit
Documents (as defined in the Credit Agreement). This Note is entitled to the
benefits of the Subsidiaries Guaranty (as defined in the Credit Agreement). This
Note is subject to voluntary prepayment and mandatory repayment prior to the
Swingline Expiry Date, in whole or in part, as provided in the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may become or be declared to be due and payable in the manner and with the
effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
<PAGE> 98
Exhibit B-2
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
COMPUWARE CORPORATION
By
-----------------------------
Name:
Title:
<PAGE> 99
EXHIBIT C
FORM OF LETTER OF CREDIT REQUEST
No. (1) Dated (2)
------ ------
Comerica Bank, as Administrative Agent
under the Credit Agreement (the "Credit
Agreement"), dated as of August 3, 1999,
among Compuware Corporation, the lenders
from time to time party thereto,
Comerica Bank, as Administrative Agent
and Morgan Stanley Senior Funding, Inc.,
as Lead Arranger, Syndication Agent and
Book Manager
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Nekold Oliphant
[Name and Address of
respective Issuing Lender]
Attention:
Dear Sirs:
We hereby request that [Issuing Lender](3), in its individual
capacity, issue a [standby] [trade] Letter of Credit for the account of the
undersigned on (4) (the "Date of Issuance") in the aggregate stated
amount of (5) .
- -----------------
(1) Letter of Credit Request Number.
(2) Date of Letter of Credit Request.
(3) Insert Name of applicable Issuing Lender.
(4) Date of Issuance which shall be at least five Business Days from the date
hereof (or such shorter period as is acceptable to the respective Issuing
Lender).
(5) Aggregate initial Stated Amount of Letter of Credit.
<PAGE> 100
EXHIBIT C
Page 2
For purposes of this Letter of Credit Request, unless otherwise
defined herein, all capitalized terms used herein and defined in the Credit
Agreement shall have the respective meaning provided such terms in the Credit
Agreement.
The beneficiary of the requested Letter of Credit will be (6) ,
and such Letter of Credit will be in support of (7) and will have a stated
expiration date of (8) .
We hereby certify that:
(1) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and correct in
all material respects, both before and after giving effect to the issuance of
the Letter of Credit requested hereby, on the Date of Issuance (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date); and
(2) no Default or Event of Default has occurred and is continuing
nor, after giving effect to the issuance of the Letter of Credit requested
hereby, would such a Default or an Event of Default occur.
- -----------------
(6) Insert name and address of beneficiary.
(7) Insert description of L/C Supportable Obligations or applicable trade
obligations, as the case may be.
(8) Insert the last date upon which drafts may be presented which may not be
later than (A) in the case of standby Letters of Credit, the earlier of
(x) one year after the date of issuance and (y) the third Business Day
prior to the Final Maturity Date and (B) in the case of trade Letters of
Credit, the earlier of (x) 180 days after the date of issuance and (y) 15
days prior to the Final Maturity Date.
<PAGE> 101
Exhibit C
Page 3
Copies of all documentation with respect to the supported
transaction are attached hereto.
COMPUWARE CORPORATION
By
-----------------------------
Name:
Title:
<PAGE> 102
EXHIBIT D
FORM OF SECTION 4.04(b)(ii) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of August
3, 1999, among Compuware Corporation, the lenders from time to time party
thereto, Comerica Bank, as Administrative Agent, and Morgan Stanley Senior
Funding, Inc., as Lead Arranger, Syndication Agent and Book Manager, (as amended
from time to time, the "Credit Agreement"). Pursuant to the provisions of
Section 4.04(b)(ii) of the Credit Agreement, the undersigned hereby certifies
that it is not a "bank" as such term is used in Section 881(c)(3)(A) of the
Internal Revenue Code of 1986, as amended.
[NAME OF LENDER]
By
-----------------------------
Name:
Title:
Date: ,
--------- -----
<PAGE> 103
EXHIBIT E-1
EXHIBIT E-2
OPINIONS OF
HONIGMAN, MILLER, SCHWARTZ AND COHN AND
GENERAL COUNSEL TO THE BORROWER
Omitted
<PAGE> 104
EXHIBIT F
FORM OF OFFICERS' CERTIFICATE
I, the undersigned, [Chief Executive Officer/Chairman of the
Board/President/Vice President] of [Name of Credit Party], a corporation
organized and existing under the laws of the State of _________________ (the
"Company"), do hereby certify on behalf of the Company that:
1. This Certificate is furnished pursuant to Section[s 5A.02 and](1)
5.04(a) of the Credit Agreement, dated as of August 3, 1999, among [Compuware
Corporation] [the Company], the lenders from time to time party thereto,
Comerica Bank, as Administrative Agent and Morgan Stanley Senior Funding, Inc.,
as Lead Arranger, Syndication Agent and Book Manager (such Credit Agreement, as
in effect on the date of this Certificate, being herein called the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used in this
Certificate shall have the meanings set forth in the Credit Agreement.
2. The following named individuals are elected officers of the
Company, each holds the office of the Company set forth opposite his or her name
and has held such office since _________ __, 19__.(2) The signature written
opposite the name and title of each such officer is his or her genuine
signature.
<TABLE>
<CAPTION>
Name(3) Office Signature
-------------- ----------- -------------
<S> <C> <C>
-------------- ----------- -------------
-------------- ----------- -------------
-------------- ----------- -------------
</TABLE>
- -----------------
(1) Insert in the Borrower's certificate only.
(2) Insert a date prior to the time of any corporate action relating to the
Credit Documents or related documentation.
(3) Include name, office and signature of each officer who will sign any
Credit Document, including the officer who will sign the certification at
the end of this Certificate or related documentation.
<PAGE> 105
Exhibit F
Page 2
3. Attached hereto as Exhibit A is a certified copy of the
[Certificate] [Articles] of Incorporation of the Company, as filed in the Office
of the Secretary of State of the State of Michigan on ___________, 19__,
together with all amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the
By-Laws of the Company which were duly adopted, are in full force and effect on
the date hereof, and have been in effect since _____________, 19__.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions which were duly adopted on __________, 19__ [by unanimous written
consent of the Board of Directors of the Company] [by a meeting of the Board of
Directors of the Company at which a quorum was present and acting throughout],
and said resolutions have not been rescinded, amended or modified. Except as
attached hereto as Exhibit C, no resolutions have been adopted by the Board of
Directors of the Company which deal with the execution, delivery or performance
of any of the Documents to which the Company is party.
[6. On the date hereof, all of the applicable conditions set forth
in Sections 5A.06, 5A.07, 5A.10 and 6.01 of the Credit Agreement have been
satisfied.](4)
[6.][7.] On the date hereof, the representations and warranties made
by the Company and contained in the Credit Agreement and in the other Credit
Documents are true and correct in all material respects with the same effect as
though such representations and warranties had been made on the date hereof,
both before and after giving effect to the incurrence of Loans on the date
hereof and the application of the proceeds thereof, unless stated to relate to a
specific earlier date, in which case such representations and warranties were
true and correct in all material respects as of such earlier date.
[7.][8.] On the date hereof, no Default or Event of Default has
occurred and is continuing or would result from the Borrowing to occur on the
date hereof or from the application of the proceeds thereof.
[8.][9.] There is no proceeding for the dissolution or liquidation
of the Company or threatening its existence.
- -----------------
(4) Insert in Officers' Certificate of Borrower only.
<PAGE> 106
Exhibit F
Page 3
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
____, 1999.
[NAME OF CREDIT PARTY]
By
-----------------------------
Name:
Title:
<PAGE> 107
Exhibit F
Page 4
I, the undersigned, [Secretary/Assistant Secretary] of the Company, do hereby
certify on behalf of the Company that:
1. [Name of Person making above certifications] is the duly elected
and qualified [Chairman of the Board/Chief Executive Officer/President/Vice
President] of the Company and the signature above is his or her genuine
signature.
2. The certifications made by [name of Person making above
certifications] on behalf of the Company in Items 2, 3, 4, 5, and [8] [9] above
are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_____, 1999.
[NAME OF CREDIT PARTY]
By
-----------------------------
Name:
Title:
<PAGE> 108
EXHIBIT G
FORM OF SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of August 3, 1999 (as amended,
modified or supplemented from time to time, this "Guaranty"), made by each of
the undersigned guarantors (each a "Guarantor," and together with any other
entity that becomes a guarantor hereunder pursuant to Section 26 hereof, the
"Guarantors"). Except as otherwise defined herein, capitalized terms used herein
and defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H :
WHEREAS, Compuware Corporation (the "Borrower"), the lenders from
time to time party thereto (the "Lenders"), Comerica Bank, as Administrative
Agent and Co-Arranger (together with any successor administrative agent, the
"Administrative Agent"), and Morgan Stanley Senior Funding, Inc., as Lead
Arranger, Syndication Agent and Book Manager, have entered into a Credit
Agreement, dated as of August 3, 1999 (as amended, modified or supplemented from
time to time, the "Credit Agreement"), providing for the making of Loans to, and
the issuance of Letters of Credit for the account of, the Borrower as
contemplated therein (the Lenders, each Issuing Lender, the Lead Arranger and
the Administrative Agent are herein called the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time enter
into one or more Interest Rate Protection Agreements or Other Hedging Agreements
with one or more Lenders or any affiliate thereof (each such Lender or
affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
and together with the Lender Creditors, the "Creditors");
WHEREAS, each Guarantor is a direct or indirect Wholly-Owned
Subsidiary of the Borrower;
WHEREAS, it is a condition to the making of Loans to, and the
issuance of Letters of Credit for the account of, the Borrower under the Credit
Agreement that each Guarantor shall have executed and delivered this Guaranty;
and
WHEREAS, each Guarantor will obtain benefits from the incurrence of
Loans to, and the issuance of Letters of Credit for the account of, the Borrower
under the Credit Agreement and the entering into by the Borrower of Interest
Rate Protection Agreements or Other Hedging Agreements and, accordingly, desires
to execute this Guaranty in order to satisfy the conditions described in the
preceding paragraph;
<PAGE> 109
Exhibit G
Page 2
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to each Creditor and hereby covenants and agrees with each Creditor
as follows:
1. Each Guarantor, jointly and severally, irrevocably, absolutely
and unconditionally guarantees: (i) to the Lender Creditors, the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of, premium, if any, and interest on the Notes issued by,
and the Loans made to, the Borrower under the Credit Agreement, and all
reimbursement obligations and Unpaid Drawings with respect to Letters of Credit
issued under the Credit Agreement and (y) all other obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness owing by the
Borrower to the Lender Creditors under the Credit Agreement and any other Credit
Document to which the Borrower is a party (including, without limitation,
indemnities, Fees and interest thereon), whether now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement and
any such other Credit Document and the due performance and compliance by the
Borrower with all of the terms, conditions and agreements contained in all such
Credit Documents (all such principal, premium, interest, liabilities,
indebtedness and obligations being herein collectively called the "Credit
Document Obligations"); and (ii) to each Other Creditor, the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness owing by the Borrower under any Interest Rate Protection Agreement
and Other Hedging Agreement, whether now in existence or hereafter arising, and
the due performance and compliance by the Borrower with all of the terms,
conditions and agreements contained in the Interest Rate Protection Agreements
or Other Hedging Agreements (all such obligations, liabilities and indebtedness
being herein collectively called the "Other Obligations," and together with the
Credit Document Obligations, the "Guaranteed Obligations"). Each Guarantor
understands, agrees and confirms that the Creditors may enforce this Guaranty up
to the full amount of the Guaranteed Obligations against such Guarantor without
proceeding against any other Guarantor, the Borrower, against any security for
the Guaranteed Obligations, or under any other guaranty covering all or a
portion of the Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by the Borrower upon
the occurrence in respect of the Borrower of any of the events specified in
Section 10.05 of the Credit Agreement, and unconditionally and irrevocably,
jointly and severally, promises to pay such Guaranteed Obligations to the
Creditors, or order, on demand, in legal tender of the United States. This
Guaranty shall constitute a guaranty of payment, and not of collection.
3. The liability of each Guarantor hereunder is primary, absolute
and unconditional and is exclusive and independent of any security for or other
guaranty of the indebtedness of the Borrower whether executed by such Guarantor,
any
<PAGE> 110
Exhibit G
Page 3
other Guarantor, any other guarantor or by any other party, and the liability of
each Guarantor hereunder shall not be affected or impaired by any circumstance
or occurrence whatsoever, including, without limitation: (a) any direction as to
application of payment by the Borrower or by any other party, (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Guaranteed Obligations, (c) any payment on or in
reduction of any such other guaranty or undertaking, (d) any dissolution,
termination or increase, decrease or change in personnel by the Borrower, (e)
any payment made to any Creditor on the indebtedness which any Creditor repays
the Borrower pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and each Guarantor
waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding, (f) any action or inaction by the Creditors as
contemplated in Section 6 hereof or (g) any invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any
security therefor.
4. The obligations of each Guarantor hereunder are independent of
the obligations of any other Guarantor, any other guarantor or the Borrower, and
a separate action or actions may be brought and prosecuted against each
Guarantor whether or not action is brought against any other Guarantor, any
other guarantor or the Borrower and whether or not any other Guarantor, any
other guarantor or the Borrower be joined in any such action or actions. Each
Guarantor waives, to the fullest extent permitted by law, the benefits of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by the Borrower or other circumstance which operates to
toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Administrative Agent or any other Creditor against, and any other notice
to, any party liable thereon (including such Guarantor, any other Guarantor, any
other guarantor or the Borrower).
6. Any Creditor may at any time and from time to time without the
consent of, or notice to, any Guarantor, without incurring responsibility to
such Guarantor, without impairing or releasing the obligations of such Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew or alter (including increase), any of
the Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or
<PAGE> 111
Exhibit G
Page 4
howsoever securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party, any Subsidiary thereof or otherwise act or
refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors,
other guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the
payment of all or any part thereof to the payment of any liability (whether due
or not) of the Borrower to creditors of the Borrower other than the Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Creditors regardless of what
liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements or Other Hedging
Agreements, the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement any of the
Interest Rate Protection Agreements or Other Hedging Agreements, the Credit
Documents or any of such other instruments or agreements;
(h) act or fail to act in any manner referred to in this Guaranty
which may deprive such Guarantor of its right to subrogation against the
Borrower to recover full indemnity for any payments made pursuant to this
Guaranty; and/or
(i) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of such
Guarantor from its liabilities under this Guaranty.
7. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Creditor in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which any Creditor would otherwise have. No notice to or demand on any Guarantor
in any case shall entitle such Guarantor to any other further notice or demand
in similar or other circumstances or constitute a waiver of the rights of any
Creditor to any other or further action in any circumstances without notice or
demand. It is not necessary for any Creditor to inquire into the capacity or
powers of the Borrower or the officers, directors, partners or agents acting or
purporting to act on its behalf,
<PAGE> 112
Exhibit G
Page 5
and any indebtedness made or created in reliance upon the professed exercise of
such powers shall be guaranteed hereunder.
8. Any indebtedness of the Borrower now or hereafter held by any
Guarantor is hereby subordinated to the indebtedness of the Borrower to the
Creditors, and such indebtedness of the Borrower to any Guarantor, if the
Administrative Agent, after the occurrence and during the continuance of an
Event of Default, so requests, shall be collected, enforced and received by such
Guarantor as trustee for the Creditors and be paid over to the Creditors on
account of the indebtedness of the Borrower to the Secured Creditors, but
without affecting or impairing in any manner the liability of such Guarantor
under the other provisions of this Guaranty. Without limiting the generality of
the foregoing, each Guarantor hereby agrees with the Creditors that it will not
exercise any right of subrogation which it may at any time otherwise have as a
result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.
9. (a) Each Guarantor waives any right (except as shall be required
by applicable law and cannot be waived) to require the Creditors to: (i) proceed
against the Borrower, any other Guarantor, any other guarantor of the Guaranteed
Obligations or any other party; (ii) proceed against or exhaust any security
held from the Borrower, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party; or (iii) pursue any other remedy in
the Creditors' power whatsoever. Each Guarantor waives any defense based on or
arising out of any defense of the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party other than payment in
full of the Guaranteed Obligations, including, without limitation, any defense
based on or arising out of the disability of the Borrower, any other Guarantor,
any other guarantor of the Guaranteed Obligations or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower other
than payment in full of the Guaranteed Obligations. The Creditors may, at their
election, foreclose on any security held by the Administrative Agent or the
other Creditors by one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable, or exercise any other
right or remedy the Creditors may have against the Borrower or any other party,
or any security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full in cash. Each Guarantor waives any defense arising out of any such
election by the Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of
such Guarantor against the Borrower or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and
<PAGE> 113
Exhibit G
Page 6
agrees that the Creditors shall have no duty to advise any Guarantor of
information known to them regarding such circumstances or risks.
10. The Creditors agree that this Guaranty may be enforced only by
the action of the Administrative Agent (acting upon the instructions of the
Required Lenders) or, after the date on which all Credit Document Obligations
have been paid in full, by the holders of at least the majority of the
outstanding Other Obligations, and that no other Creditors shall have any right
individually to seek to enforce or to enforce this Guaranty, it being understood
and agreed that such rights and remedies may be exercised by the Administrative
Agent or, after all the Credit Document Obligations have been paid in full, by
the holders of at least a majority of the outstanding Other Obligations, as the
case may be, for the benefit of the Creditors upon the terms of this Guaranty.
The Creditors further agree that this Guaranty may not be enforced against any
director, officer, employee, partner, member or stockholder of any Guarantor
(except to the extent such partner, member or stockholder is also a Guarantor
hereunder).
11. In order to induce the Lenders to make Loans to, and issue
Letters of Credit for the account of, the Borrower pursuant to the Credit
Agreement, and in order to induce the Other Creditors to execute, deliver and
perform the Interest Rate Protection Agreements and Other Hedging Agreements,
each Guarantor represents, warrants and covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation, partnership or limited liability company, as the case may be, in
good standing under the laws of the jurisdiction of its organization, except for
failures to be so duly organized validly existing or in good standing which,
either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, (ii) has the corporate, partnership or limited
liability company, power and authority, as the case may be, to own its property
and assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where the conduct of its business
requires such qualification except for failures to be so qualified which, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
(b) Such Guarantor has the corporate, partnership or limited
liability company, power and authority, as the case may be, to execute, deliver
and perform the terms and provisions of this Guaranty and each other Document to
which it is a party and has taken all necessary corporate, partnership or
limited liability company, action, as the case may be, to authorize the
execution, delivery and performance by it of this Guaranty and each such other
Document. Such Guarantor has duly executed and delivered this Guaranty and each
other Document to which it is a party, and this Guaranty and each such other
Document constitutes the legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms, except to the extent that the
enforceability hereof or thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law).
<PAGE> 114
Exhibit G
Page 7
(c) Neither the execution, delivery or performance by such Guarantor
of this Guaranty or any other Document to which it is a party, nor compliance by
it with the terms and provisions hereof and thereof, will (i) contravene any
provision of any applicable law, statute, rule or regulation or any applicable
order, writ, injunction or decree of any court or governmental instrumentality,
(ii) conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of such Guarantor or any of its Subsidiaries
pursuant to the terms of any material indenture, mortgage, deed of trust, loan
agreement, credit agreement, or any other material agreement, contract or
instrument to which such Guarantor or any of its Subsidiaries is a party or by
which it or any of its property or assets is bound or to which it may be subject
or (iii) violate any provision of the certificate of incorporation or by-laws
(or equivalent organizational documents) of such Guarantor or any of its
Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made or as otherwise provided in Section 7.04 of the Credit
Agreement), or exemption by, any governmental or public body or authority, or
any subdivision thereof, is required to authorize, or is required for, (i) the
execution, delivery and performance of this Guaranty by such Guarantor or any
other Document to which such Guarantor is a party or (ii) the legality,
validity, binding effect or enforceability of this Guaranty or any other
Document to which such Guarantor is a party.
(e) There are no actions, suits or proceedings pending or, to such
Guarantor's knowledge, threatened (i) with respect to this Guaranty or any other
Document to which such Guarantor is a party or (ii) with respect to such
Guarantor that, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
12. Each Guarantor covenants and agrees that on and after the
Effective Date and until the termination of the Total Commitment and all
Interest Rate Protection Agreements and Other Hedging Agreements and until such
time as no Note or Letter of Credit remains outstanding and all Guaranteed
Obligations have been paid in full, such Guarantor will comply, and will cause
each of its Subsidiaries to comply, with all of the applicable provisions,
covenants and agreements contained in Sections 8 and 9 of the Credit Agreement,
and will take, or will refrain from taking, as the case may be, all actions that
are necessary to be taken or not taken so that it is not in violation of any
provision, covenant or agreement contained in Section 8 or 9 of the Credit
Agreement, and so that no Default or Event of Default, is caused by the actions
of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay all
reasonable out-of-pocket costs and expenses of each Creditor in connection with
the enforcement of this Guaranty and of each Agent in connection with any
amendment, waiver or consent relating hereto (including in each case, without
limitation, the reasonable fees and disbursements of counsel employed by each
Creditor).
<PAGE> 115
Exhibit G
Page 8
14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Creditors and their
successors and assigns.
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby and with the written consent of either (x)
the Required Lenders (or to the extent required by Section 13.12 of the Credit
Agreement, with the written consent of each Lender) at all times prior to the
time on which all Credit Document Obligations have been paid in full or (y) the
holders of at least a majority of the outstanding Other Obligations at all times
after the time on which all Credit Document Obligations have been paid in full;
provided, that any change, waiver, modification or variance affecting the rights
and benefits of a single Class (as defined below) of Creditors (and not all
Creditors in a like or similar manner) shall also require the written consent of
the Requisite Creditors (as defined below) of such Class of Creditors (it being
understood that the addition or release of any Guarantor hereunder shall not
constitute a change, waiver, discharge or termination affecting any Guarantor
other than the Guarantor so added or released). For the purpose of this
Guaranty, the term "Class" shall mean each class of Creditors, i.e., whether (x)
the Lender Creditors as holders of the Credit Document Obligations or (y) the
Other Creditors as the holders of the Other Obligations. For the purpose of this
Guaranty, the term "Requisite Creditors" of any Class shall mean (x) with
respect to the Credit Document Obligations, the Required Lenders (or to the
extent required by Section 13.12 of the Credit Agreement, each Lender) and (y)
with respect to the Other Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements and Other Hedging Agreements.
16. Each Guarantor acknowledges that an executed (or conformed) copy
of each of the Credit Documents and Interest Rate Protection Agreements or Other
Hedging Agreements has been made available to a senior officer of such Guarantor
and such officer is familiar with the contents thereof.
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of Default (such term to
mean and include any "Event of Default" as defined in the Credit Agreement or
any payment default under any Interest Rate Protection Agreement or Other
Hedging Agreement continuing after any applicable grace period), each Creditor
is hereby authorized, at any time or from time to time, without notice to any
Guarantor or to any other Person, any such notice being expressly waived, to set
off and to appropriate and apply any and all deposits (general or special) and
any other indebtedness at any time held or owing by such Creditor to or for the
credit or the account of such Guarantor, against and on account of the
obligations and liabilities of such Guarantor to such Creditor under this
Guaranty, irrespective of whether or not such Creditor shall have made any
demand hereunder and although said obligations, liabilities, deposits or claims,
or any of them, shall be contingent or unmatured.
18. All notices, requests, demands or other communications pursuant
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
overnight courier service and all
<PAGE> 116
Exhibit G
Page 9
such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective when deposited
in the mails, delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier and when mailed
shall be effective three Business Days following deposit in the mail with proper
postage, except that notices and communications to the Administrative Agent or
any Guarantor shall not be effective until received by the Administrative Agent
or such Guarantor, as the case may be. All notices and other communications
shall be in writing and addressed to such party at (i) in the case of any Lender
Creditor, as provided in the Credit Agreement, (ii) in the case of any
Guarantor, at c/o Compuware Corporation, 31440 Northwestern Highway, Farmington
Hills, Michigan 48334-2534, Attention: Eliot Stark, Telephone Number:
248-737-7557, Telecopier Number: 248-737-1822 and (iii) in the case of any Other
Creditor, at such address as such Other Creditor shall have specified in writing
to the Guarantors; or in any case at such other address as any of the Persons
listed above may hereafter notify the others in writing.
19. If claim is ever made upon any Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including the Borrower) then and in such event each
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon such Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of the Borrower, and such Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Guaranty or any other Credit Document to which any
Guarantor is a party may be brought in the courts of the State of New York or of
the United States of America for the Southern District of New York in each case
that are located in the City of New York, and, by execution and delivery of this
Guaranty, each Guarantor hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Guarantor hereby further irrevocably waives any claim that any such
court lacks personal jurisdiction over such Guarantor, and agrees not to plead
or claim in any legal action or proceeding with respect to this Guaranty or any
other Credit Document to which such Guarantor is a party brought in any of the
aforesaid courts that any such court lacks personal jurisdiction over such
Guarantor. Each Guarantor further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such Guarantor at its address set forth opposite its signature below, such
service to become effective 30 days after such mailing. Each Guarantor hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Credit Document to which such
<PAGE> 117
Exhibit G
Page 10
Guarantor is a party that such service of process was in any way invalid or
ineffective. Nothing herein shall affect the right of any of the Creditors to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest extent
permitted by applicable law) any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Guaranty or any other Credit Document to which
such Guarantor is a party brought in the courts referred to in clause (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH GUARANTOR AND EACH CREDITOR (BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of Section 9.03 of the Credit Agreement (or such sale or other
disposition has been approved in writing by the Required Lenders (or all Lenders
if required by Section 13.12 of the Credit Agreement)); such Guarantor shall
upon consummation of such sale or other disposition (except to the extent that
such sale or disposition is to the Borrower or another Subsidiary thereof) be
released from this Guaranty automatically and without further action and this
Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no
further force or effect (it being understood and agreed that the sale of one or
more Persons that own, directly or indirectly, all of the capital stock of any
Guarantor shall be deemed to be a sale of such Guarantor for the purposes of
this Section 21).
22. At any time a payment in respect of the Guaranteed Obligations
is made under this Guaranty, the right of contribution of each Guarantor against
each other Guarantor shall be determined as provided in the immediately
following sentence, with the right of contribution of each Guarantor to be
revised and restated as of each date on which a payment (a "Relevant Payment")
is made on the Guaranteed Obligations under this Guaranty. At any time that a
Relevant Payment is made by a Guarantor that results in the aggregate payments
made by such Guarantor in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment exceeding such Guarantor's Contribution
Percentage (as defined below) of the aggregate payments made by all Guarantors
in respect of the Guaranteed Obligations to and including the date of the
Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in
<PAGE> 118
Exhibit G
Page 11
respect of the Guaranteed Obligations (the aggregate amount of such deficit, the
"Aggregate Deficit Amount") in an amount equal to (x) a fraction the numerator
of which is the Aggregate Excess Amount of such Guarantor and the denominator of
which is the Aggregate Excess Amount of all Guarantors multiplied by (y) the
Aggregate Deficit Amount of such other Guarantor. A Guarantor's right of
contribution pursuant to the preceding sentences shall arise at the time of each
computation, subject to adjustment to the time of each computation; provided,
that no Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been irrevocably paid in full in cash, it being expressly
recognized and agreed by all parties hereto that any Guarantor's right of
contribution arising pursuant to this Section 22 against any other Guarantor
shall be expressly junior and subordinate to such other Guarantor's obligations
and liabilities in respect of the Guaranteed Obligations and any other
obligations owing under this Guaranty. As used in this Section 22: (i) each
Guarantor's "Contribution Percentage" shall mean the percentage obtained by
dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y)
the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net
Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined
below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each
Guarantor shall mean the amount by which the fair salable value of such
Guarantor's assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty) on such
date. All parties hereto recognize and agree that, except for any right of
contribution arising pursuant to this Section 22, each Guarantor who makes any
payment in respect of the Guaranteed Obligations shall have no right of
contribution or subrogation against any other Guarantor in respect of such
payment until all of the Guaranteed Obligations have been irrevocably paid in
full in cash. Each of the Guarantors recognizes and acknowledges that the rights
to contribution arising hereunder shall constitute an asset in favor of the
party entitled to such contribution. In this connection, each Guarantor has the
right to waive its contribution right against any Guarantor to the extent that
after giving effect to such waiver such Guarantor would remain solvent, in the
determination of the Required Lenders.
23. Each Guarantor and each Creditor (by its acceptance of the
benefits of this Guaranty) hereby confirms that it is its intention that this
Guaranty not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Code, the Uniform Fraudulent Conveyance Act of any similar Federal or
state law. To effectuate the foregoing intention, each Guarantor and each
Creditor (by its acceptance of the benefits of this Guaranty) hereby irrevocably
agrees that the Guaranteed Obligations guaranteed by such Guarantor shall be
limited to such amount as will, after giving effect to such maximum amount and
all other (contingent or otherwise) liabilities of such Guarantor that are
relevant under such laws, and after giving effect to any rights to contribution
pursuant to any agreement providing for an equitable contribution among such
Guarantor and other Guarantors, result in the Guaranteed Obligations of such
Guarantor in respect of such maximum amount not constituting a fraudulent
transfer or conveyance.
24. This Guaranty may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set
<PAGE> 119
Exhibit G
Page 12
of counterparts executed by all the parties hereto shall be lodged with the
Guarantors and the Administrative Agent.
25. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense and on the same basis as payments
are made by the Borrower under Sections 4.03 and 4.04 of the Credit Agreement.
26. It is understood and agreed that any Subsidiary of the Borrower
that is required to execute a counterpart of this Guaranty after the date hereof
pursuant to the Credit Agreement shall become a Guarantor hereunder by executing
a counterpart hereof and delivering the same to the Administrative Agent.
* * *
<PAGE> 120
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
CV AQUISITION, INC., as a Guarantor
By:
----------------------------------
Title:
COMPUWARE INTERNATIONAL, LTD.,
as a Guarantor
By:
----------------------------------
Title:
RELIANT DATA SYSTEMS, INC.,
as a Guarantor
By:
----------------------------------
Title:
COMP ACQUISITION CO., as a Guarantor
By:
----------------------------------
Title:
MIS INTERNATIONAL, INC. as a Guarantor
By:
----------------------------------
Title:
<PAGE> 121
Exhibit G
Page 14
LIGHTING ACQUISITION, INC.,
as a Guarantor
By:
----------------------------------
Title:
COMPUWARE GLOBAL SERVICES, INC.,
as a Guarantor
By:
----------------------------------
Title:
Accepted and Agreed to:
COMERICA BANK,
as Administrative Agent
By:
----------------------------------
Title:
<PAGE> 122
EXHIBIT H
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
DATE: ________ __, ____
Reference is made to the Credit Agreement described in Item 2 of
Annex I annexed hereto (as such Credit Agreement may hereafter be amended,
modified or supplemented from time to time, the "Credit Agreement"). Unless
defined in Annex I attached hereto, capitalized terms defined in the Credit
Agreement are used herein as therein defined. _____________ (the "Assignor") and
______________ (the "Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the date hereof which represents the percentage
interest specified in Item 4 of Annex I (the "Assigned Share") of all of the
outstanding rights and obligations under the Credit Agreement, including,
without limitation, all rights and obligations with respect to the Assigned
Share of the Total Commitment and all outstanding Revolving Loans, Swingline
Loans and Letters of Credit.
2. 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 claims; (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 the other Credit Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or the
other Credit Documents 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 the Borrower or any of
its Subsidiaries or the performance or observance by the Borrower or any of its
Subsidiaries of any of their respective obligations under the Credit Agreement
or the other Credit Documents or any other instrument or document furnished
pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon any Agent, the Assignor or
any other Lender 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; (iii) appoints and authorizes the
Administrative Agent and the Lead Arranger to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to the Administrative Agent and the Lead
Arranger
<PAGE> 123
EXHIBIT H
Page 2
by the terms thereof, together with such powers as are reasonably incidental
thereto, (iv) confirms that it is an Eligible Transferee under the Credit
Agreement; [and] (v) 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 Lender [; and (vi) attaches the Forms and/or
Certificate described in Section 13.04(b) of the Credit Agreement.](1)
4. Following the execution of this Assignment and Assumption
Agreement by the Assignor and the Assignee, an executed original hereof
(together with all attachments) will be delivered to the Administrative Agent.
The effective date of this Assignment and Assumption Agreement shall be the date
of execution hereof by the Assignor and the Assignee, the receipt of the consent
of the Administrative Agent and the Borrower (in either case) to the extent
required by the Credit Agreement, receipt by the Administrative Agent of the
assignment fee referred to in Section 13.04(b) of the Credit Agreement, and the
recordation by the Administrative Agent of the assignment effected hereby in the
Register, unless otherwise specified in Item 5 of Annex I (the "Settlement
Date").
5. Upon the delivery of a fully executed original hereof to the
Administrative Agent, as of the Settlement Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Assumption Agreement, have the rights and obligations of a Lender thereunder and
under the other Credit Documents and (ii) the Assignor shall, to the extent
provided in this Assignment and Assumption Agreement, relinquish its rights and
be released from its obligations under the Credit Agreement and the other Credit
Documents.
6. It is agreed that upon the effectiveness hereof, the Assignee
shall be entitled to (w) all interest on the Assigned Share of the Loans at the
rates specified in Item 6 of Annex I hereto, (x) all Commitment Commission on
the Assigned Share of the Total Commitment at the rate specified in Item 7 of
Annex I hereto and (y) all Letter of Credit Fees on the Assignee's participation
in all Letters of Credit at the rate specified in Item 8 of Annex I hereto,
which, in each case, accrue on and after the Settlement Date, such interest,
Commitment Commission and Letter of Credit Fees, to be paid by the
Administrative Agent directly to the Assignee. It is further agreed that all
payments of principal made on the Assigned Share of the Loans which occur on and
after the Settlement Date will be paid directly by the Administrative Agent to
the Assignee. Upon the Settlement Date, the Assignee shall pay to the Assignor
an amount specified by the Assignor in writing which represents the Assigned
Share of the principal amount of the respective Loans made by the Assignor
pursuant to the Credit Agreement which are outstanding on the Settlement Date,
net of any closing costs, and which are being assigned hereunder. The Assignor
and the Assignee shall make all appropriate adjustments in payments under the
Credit Agreement for periods prior to the Settlement Date directly between
themselves.
- -----------------
(1) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
<PAGE> 124
EXHIBIT H
Page 3
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Assumption Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such execution also being
made on Annex I hereto.
[NAME OF ASSIGNOR],
as Assignor
By
-----------------------------
Name:
Title:
[NAME OF ASSIGNEE],
as Assignee
By
-----------------------------
Name:
Title:
Acknowledged and Agreed:
COMERICA BANK, as Administrative Agent
By
-----------------------------
Name:
Title:
[COMPUWARE CORPORATION
By
-----------------------------
Name:
Title:]
<PAGE> 125
ANNEX I
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
1. The Borrower: Compuware Corporation (the "Borrower").
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of August 3, 1999, among the Borrower, the
lenders from time to time party thereto, Comerica Bank, as
Administrative Agent, and Morgan Stanley Senior Funding, Inc, as Lead
Arranger, Syndication Agent and Book Manager.
3. Date of Assignment Agreement:
4. Amounts (as of date of item #3 above):
<TABLE>
<CAPTION>
Commitment
----------
<S> <C>
a. Aggregate Amount for all Lenders $________
b. Assigned Share ________%
c. Amount of Assigned Share
$________
</TABLE>
5. Settlement Date:
6. Rate of Interest
to the Assignee: As set forth in Section 1.08 of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee).(2)
- -----------------
(2) The Borrower and the Administrative Agent shall, following recordation of
such assignment by the Administrative Agent on the Register, direct the
entire amount of interest to the Assignee at the rate set forth in Section
1.08 of the Credit Agreement, with the Assignor and Assignee effecting any
agreed upon sharing of interest through payments by the Assignee to the
Assignor.
<PAGE> 126
ANNEX I
Page 2
7. Commitment
Commission
to the Assignee: As set forth in Section 3.01(a) of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee).(3)
8. Letter of Credit
Fee to the Assignee: As set forth in Section 3.01(b) of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee).(4)
9. Notice: ASSIGNEE:
-------------------
-------------------
-------------------
-------------------
Attention:
Telephone:
Telecopier:
Reference:
Payment Instructions: ASSIGNEE:
-------------------
-------------------
-------------------
-------------------
Attention:
Reference:
- -----------------
(3) The Borrower and the Administrative Agent shall, following recordation of
such assignment by the Administrative Agent on the Register, direct the
entire amount of the Commitment Commission to the Assignee at the rate set
forth in Section 3.01(a) of the Credit Agreement, with the Assignor and the
Assignee effecting any agreed upon sharing of the Commitment Commission
through payment by the Assignee to the Assignor.
(4) The Borrower and the Administrative Agent shall, following recordation of
such assignment by the Administrative Agent on the Register, direct the
entire amount of the Letter of Credit Fee to the Assignee at the rate set
forth in Section 3.01(b) of the Credit Agreement, with the Assignor and the
Assignee effecting any agreed upon sharing of the Letter of Credit Fee
through payment by the Assignee to the Assignor.
<PAGE> 127
ANNEX I
Page 3
Accepted and Agreed:
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By By
----------------------------- -----------------------------
Name: Name:
Title: Title:
