1
$120,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 29, 1998
Among
EUROPEAN SOFTWARE MARKETING LTD.
AMDOCS (U.K.) LTD.
AMDOCS, INC.
CANADIAN DIRECTORY TECHNOLOGY LTD.
AMDOCS (USA), INC.
as Borrowers
and
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders, Initial Issuing Bank and Swing Line Bank
and
NATIONSBANK, N.A.
as Administrative Agent
and
THE BANK OF NOVA SCOTIA
as Syndication Agent
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SECTION PAGE
T A B L E O F C O N T E N T S
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms ..................................................... 1
1.02. Computation of Time Periods ............................................... 17
1.03. Accounting Principles ..................................................... 18
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
2.01. The Advances .............................................................. 18
2.02. Making the Advances ....................................................... 19
2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit ........ 21
2.04. Repayment of Advances ..................................................... 22
2.05. Termination or Reduction of the Commitments ............................... 23
2.06. Prepayments ............................................................... 24
2.07. Interest .................................................................. 25
2.08. Fees ...................................................................... 26
2.09. Conversion of Advances .................................................... 26
2.10. Increased Costs, Etc ...................................................... 27
2.11. Payments and Computations ................................................. 28
2.12. Taxes ..................................................................... 30
2.13. Sharing of Payments, Etc .................................................. 32
2.14. Use of Proceeds ........................................................... 33
2.15. Defaulting Lenders ........................................................ 33
SECTION 2.16. Increase in the Aggregate Commitments ............................. 35
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Initial Extension of Credit ....................... 36
3.02. Conditions Precedent to Each Borrowing and Issuance ....................... 39
3.03. Determinations Under Section 3.01 ......................................... 40
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrowers ........................... 40
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SECTION PAGE
ARTICLE V
COVENANTS OF THE BORROWERS
5.01. Affirmative Covenants ...................................................... 45
5.02. Negative Covenants ......................................................... 48
5.03. Reporting Requirements ..................................................... 56
5.04. Financial Covenants ........................................................ 58
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default ......................................................... 58
6.02. Actions in Respect of the Letters of Credit upon Default .................. 61
ARTICLE VII
ESM GUARANTY
SECTION 7.01. Guaranty .......................................................... 61
SECTION 7.02. Guaranty Absolute ................................................. 61
SECTION 7.03. Waiver ............................................................ 62
SECTION 7.04. Continuing Guaranty; Assignments .................................. 62
SECTION 7.05. Subrogation ....................................................... 62
ARTICLE VIII
THE AGENTS
8.01. Authorization and Action .................................................. 63
8.02. Administrative Agent's Reliance, Etc ...................................... 64
8.03. NationsBank and Affiliates ................................................ 64
8.04. Lender Party Credit Decision .............................................. 64
8.05. Indemnification ........................................................... 65
8.06. Successor Administrative Agent ............................................ 66
8.07. Defaults .................................................................. 67
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc ........................................................... 67
9.02. Notices, Etc .............................................................. 67
9.03. No Waiver; Remedies ....................................................... 68
9.04. Costs and Expenses ........................................................ 68
9.05. Right of Set-off .......................................................... 69
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9.06. Binding Effect ............................................................ 70
9.07. Assignments and Participations ............................................ 70
9.08. Execution in Counterparts ................................................. 72
9.09. No Liability of the Issuing Bank .......................................... 72
9.10. Confidentiality ........................................................... 73
9.11. Governing Law ............................................................. 73
9.12. Jurisdiction, Etc. ........................................................ 73
9.13. Judgment .................................................................. 74
9.14. Waiver of Jury Trial ...................................................... 75
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Borrowers' Accounts
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(s) - Open Years
Schedule 4.01(y) - Existing Debt
Schedule 4.01(z) - Surviving Debt
Schedule 4.01(aa) - Owned Real Property
Schedule 4.01(bb) - Leased Real Property
Schedule 4.01(cc) - Investments
Schedule 4.01(dd) - Intellectual Property
Schedule 5.02(a) - Existing Liens
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement Supplement
Exhibit E - Form of Amendment to Deed of Charge over Shares
Exhibit F - Form of Consent to Guaranty of US Loan Parties
Exhibit G - Form of Consent to Guaranty of Non-US Loan Parties
Exhibit H - Form of Opinion of Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol
Exhibit I-1 - Form of Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Exhibit I-2 - Form of Opinion of Frere Cholmeley ▇▇▇▇▇▇▇▇
Exhibit J - Form of Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Exhibit K - Form of Confidentiality Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 29,
1998 among European Software Marketing Ltd., a Guernsey company ("ESM"), Amdocs
(U.K.) Ltd., a corporation organized under the laws of England and Wales
("Amdocs UK"), Amdocs, Inc., a Delaware corporation ("Amdocs Inc."), Canadian
Directory Technology Ltd., a Delaware corporation ("CADET"), and Amdocs (USA),
Inc., a Delaware corporation ("Amdocs USA") (ESM, Amdocs UK, Amdocs Inc., CADET
and Amdocs USA are collectively the "Borrowers"), the banks, financial
institutions and other institutional lenders listed on the signature pages
hereof as the Initial Lenders (the "Initial Lenders"), the Initial Issuing Bank
(the "Initial Issuing Bank") and the Swing Line Bank (as hereinafter defined)
and NationsBank, N.A. ("NationsBank"), as administrative agent (together with
any successor appointed pursuant to Article VII, the "Administrative Agent"),
The Bank of Nova Scotia, as syndication agent, and The Industrial Bank of Japan,
Limited, as documentation agent, for the Lender Parties (as hereinafter
defined).
PRELIMINARY STATEMENT. The Existing Lenders (as hereinafter
defined) party to the Existing Credit Agreement (as hereinafter defined) and the
Borrowers have agreed to amend and restate the Existing Credit Agreement in
order to increase the Revolving Credit Commitments (as hereinafter defined) of
the Lender Parties and to amend certain of the covenants. The Lender Parties
have indicated their willingness to agree to amend and restate the Existing
Credit Agreement and to lend such amounts on the terms and conditions of this
Agreement.
NOW THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain 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" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with
NationsBank at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Account No. ▇▇▇-▇▇▇▇-▇▇▇, Attention: ▇▇▇▇▇ Oxford.
"Advance" means a Revolving Credit Advance, a Swing Line
Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agents" means the Administrative Agent, The Bank of Nova
Scotia in its capacity as syndication agent and The Industrial Bank of
Japan, Limited in its capacity as documentation agent.
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"Amdocs Inc." has the meaning specified in the recital of
parties to this Agreement.
"Amdocs (Israel)" means Amdocs (Israel) Limited, a corporation
organized under the laws of Israel.
"Amdocs UK" has the meaning specified in the recital of
parties to this Agreement.
"Amdocs USA" has the meaning specified in the recital of
parties to this Agreement.
"Annualized Interest Expense" means (a) for determination on
September 30, 1998, Interest Expense for the fiscal quarter most
recently ended multiplied by four; (b) for determination on December
31, 1998, Interest Expense for the two fiscal quarters most recently
ended multiplied by two; (c) for determination on March 31, 1999,
Interest Expense for the three fiscal quarters most recently ended
multiplied by 4/3; and (d) for determination on the last day of any
fiscal quarter ending on or after June 30, 1999, Interest Expense for
the four fiscal quarters most recently ended.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance and such Lender Party's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.
"Applicable Margin" means a percentage per annum determined by
reference to the Leverage Ratio as set forth below:
Leverage Base Rate Advances Eurodollar Rate
Ratio Advances
----- --------
Level I 0.00% 0.50%
Leverage Ratio is 1.0:1.0 or less
Level II 0.00% 0.75%
Leverage Ratio is 1.5:1.0 or less and
greater than 1.0:1.
Level III 0.00% 1.00%
Leverage Ratio is 2.0:1.0 or less and
greater than 1.5:1.0
Level IV 0.25% 1.25%
Leverage Ratio is 2.25:1.0 or less
and greater than 2.0:1.0
Level V 0.50% 1.50%
Leverage Ratio greater than 2.25:1.0
The Applicable Margin for each Advance shall be determined by reference
to the applicable Leverage Ratio in effect from time to time; provided,
however, that (A) until the end of the fiscal quarter ending September
30, 1998, the Applicable Margin shall be 0.875% for Eurodollar Rate
Advances and 0% for Base Rate Advances, (B) no change in the Applicable
Margin shall be effective until three Business Days after the date on
which the Administrative Agent receives financial statements pursuant
to Section 5.03(b) or (c) and a certificate of the chief financial
officer of ESM demonstrating the Leverage Ratio, (C) if ESM
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has not submitted to the Administrative Agent the information described
in clause (B) of this proviso as and when required under Section
5.03(b) or (c), as the case may be, the Applicable Margin shall be at
Level V for so long as such information has not been received by the
Administrative Agent.
"Applicable Percentage" means a percentage per annum
determined by reference to the Leverage Ratio as set forth below:
Leverage Ratio Applicable Percentage
-------------- ---------------------
Level I 0.250%
Leverage Ratio is 1.0:1.0 or less
Level II 0.250%
Leverage Ratio is 1.5:1.0 or less and greater than
1.0:1.0
Level III 0.275%
Leverage Ratio is 2.0:1.0 or less and greater than
1.5:1.0
Level IV 0.325%
Leverage Ratio is 2.25:1.0 or less and greater than
2.0:1.0
Level V 0.375%
Leverage Ratio greater than 2.25:1.0
The Applicable Percentage shall be determined by reference to the
Leverage Ratio in effect from time to time; provided, however, that (A)
until the end of the fiscal quarter ending September 30, 1998, the
Applicable Percentage shall be as set forth opposite Level III above,
(B) no change in the Applicable Percentage shall be effective until
three Business Days after the date on which the Administrative Agent
receives financial statements pursuant to Section 5.03(b) or (c) and a
certificate of the chief financial officer of ESM demonstrating the
Leverage Ratio and (C) if ESM has not submitted to the Administrative
Agent the information described in clause (B) of this proviso as and
when required under Section 5.03(b) or (c), as the case may be, the
Applicable Percentage shall be at Level V for so long as such
information has not been received by the Administrative Agent.
"Appropriate Lender" means, at any time, with respect to (a)
the Revolving Credit Facility, a Lender that has a Commitment with
respect to such Facility at such time, (b) the Letter of Credit
Facility, (i) the Issuing Bank and (ii) if the other Lenders have made
Letter of Credit Advances pursuant to Section 2.03(c) that are
outstanding at such time, each such other Lender and (c) the Swing Line
Facility, (i) the Swing Line Bank and (ii) if the other Lenders have
made Swing Line Advances pursuant to Section 2.02(b) that are
outstanding at such time, each such other Lender.
"Arranger" means NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 9.07 and in
substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.16(d).
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"Assumption Agreement" has the meaning specified in Section
2.16(d)(ii).
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Bank Hedge Agreement" means any interest rate Hedge Agreement
permitted under Article V that is entered into by and between any
Borrower and any Hedge Bank.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest most recently announced
publicly by NationsBank in Charlotte, North Carolina, as its
prime rate (which rate may not be the lowest rate of interest
charged by it to its customers); and
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(b)(i).
"Borrower's Account" means, with respect to any Borrower, the
account of such Borrower maintained by such Borrower with NationsBank
at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, as
set forth opposite the name of such Borrower on Schedule II.
"Borrowers" has the meaning specified in the recital of
parties to this Agreement.
"Borrowing" means a Revolving Credit Borrowing or a Swing Line
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in Dallas, Texas or New York,
New York and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank
market.
"CADET" has the meaning specified in the recital of parties to
this Agreement.
"Capital Expenditures" means, without duplication, the
following, calculated on a Consolidated basis for Limited and its
Subsidiaries in accordance with GAAP: (a) the gross amount of
expenditures for fixed or capital assets (excluding such assets
acquired in connection with normal replacement and maintenance
programs) determined in accordance with GAAP, plus (b) the aggregate
amount of all monetary Obligations under Capitalized Leases to the
extent required to be capitalized in accordance with GAAP. For purposes
of this definition, the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment or with
insurance proceeds shall be included in Capital Expenditures only to
the extent of the gross amount of such purchase price less the credit
granted by the seller of such equipment for the equipment being traded
in at such time or the amount of such proceeds, as the case may be.
"Capitalized Leases" means all leases that have been (or in
accordance with GAAP are required to be) recorded as capitalized
leases.
"Cash Collateral Account" has the meaning specified in the
Security Agreement.
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"Cash Equivalents" means any of the following, to the extent
owned free and clear of all Liens other than Liens created under the
Collateral Documents and having a maturity of not greater than 90 days
from the date of issuance thereof: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States, (b)
insured certificates of deposit of or time deposits with any commercial
bank that is (x) a Lender Party, (y) a member of the Federal Reserve
System or a bank organized in the United Kingdom or Israel that issues
(or the parent of which issues) commercial paper rated as described in
clause (c), and has combined capital and surplus of at least $1 billion
or (z) First International Bank of Israel, (c) commercial paper in an
aggregate amount of no more than $2,500,000 per issuer outstanding at
any time, issued by any corporation organized under the laws of any
State of the United States and rated at least "Prime-1" (or the then
equivalent grade) by ▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" (or the
then equivalent grade) by Standard & Poor's Ratings Group or (d) any
other cash equivalent agreed to in writing between the Borrowers and
the Administrative Agent.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is purported to
be subject to any Lien in favor of the Administrative Agent for the
benefit of the Secured Parties pursuant to the Collateral Documents.
"Collateral Documents" means the Security Agreement, the Deed
of Charge over Shares and any other agreement that creates or purports
to create a Lien in favor of the Administrative Agent for the benefit
of the Secured Parties.
"Commitment" means a Revolving Credit Commitment or a Letter
of Credit Commitment.
"Confidential Information" means information furnished by or
on behalf of the Borrowers (whether prepared by any Borrower, its
representatives or otherwise) to the Administrative Agent or any Lender
Party under circumstances where such information would reasonably be
anticipated to be confidential, excluding any such information (a) that
is or becomes generally available to the public other than as a result
of a breach by the Administrative Agent or any Lender Party of its
obligations hereunder or (b) that is or becomes available to the
Administrative Agent or such Lender Party from a source other than a
Borrower and the Administrative Agent or such Lender Party should not
reasonably know that such source is in breach of any confidentiality
obligations owed to any Loan Party.
"Consolidated" refers to the consolidation of accounts of
Limited and its Subsidiaries in accordance with GAAP.
"Consolidating" financial statements of Limited and its
Subsidiaries refers to the presentation of accounts of Limited, Amdocs
(Israel), Amdocs UK, Amdocs Inc., Amdocs USA and the other Consolidated
Subsidiaries of Limited (as a group).
"Conversion","Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"CPIII" means WCAS Capital Partners III, L.P., a Delaware
limited partnership.
"Current Assets" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is required in accordance with GAAP.
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"Current Liabilities" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or Debt arising under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit during
a period of more than one year from such date) in accordance with GAAP
and (b) all other items (including taxes accrued as estimated) that in
accordance with GAAP would be classified as current liabilities of such
Person.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services
(other than accrued expenses or payables not overdue by more than 90
days incurred in the ordinary course of such Person's business), (c)
all Obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all Obligations of such Person created
or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though
the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such
property), (e) all Obligations (determined in accordance with GAAP) of
such Person as lessee under Capitalized Leases, (f) all Obligations,
contingent or otherwise, of such Person under acceptance, letter of
credit or similar facilities, (g) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in
respect of any capital stock of or other ownership or profit interest
in such Person or any other Person or any warrants, rights or options
to acquire such capital stock, valued, in the case of Redeemable
Preferred Stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends, (h) all
Obligations of such Person in respect of Hedge Agreements, (i) all Debt
of others referred to in clauses (a) through (h) above or clause (j)
below guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through
an agreement (i) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (ii) to purchase, sell
or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or
(iv) otherwise to assure a creditor against loss, and (j) all Debt
referred to in clauses (a) through (h) above of another Person secured
by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt.
"Deed of Charge over Shares" has the meaning specified in
Section 3.01(d)(vi).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to any Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time which has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under
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anyother Loan Document at or prior to such time which has not been so
paid as of such time, including, without limitation, any amount
required to be paid by such Lender Party to (a) the Swing Line Bank
pursuant to Section 2.02(b) to purchase a portion of a Swing Line
Advance made by the Swing Line Bank, (b) the Issuing Bank pursuant to
Section 2.03(c) to purchase a portion of a Letter of Credit Advance
made by the Issuing Bank, (c) the Administrative Agent pursuant to
Section 2.02(e) to reimburse the Administrative Agent for the amount of
any Advance made by the Administrative Agent for the account of such
Lender Party, (d) any other Lender Party pursuant to Section 2.13 to
purchase any participation in Advances owing to such other Lender Party
and (e) the Administrative Agent or the Issuing Bank pursuant to
Section 8.05 to reimburse the Administrative Agent or the Issuing Bank
for such Lender Party's ratable share of any amount required to be paid
by the Lender Parties to the Administrative Agent or the Issuing Bank
as provided therein. In the event that a portion of a Defaulted Amount
shall be deemed paid pursuant to Section 2.15(b), the remaining portion
of such Defaulted Amount shall be considered a Defaulted Amount
originally required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in
part.
"Defaulting Lender" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrowers and the
Administrative Agent.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis of (a) net income (or net loss), (b) interest
expense, (c) income tax expense, (d) depreciation expense, (e)
amortization expense, (f) other non-cash charges (including any
non-cash charges incurred in connection with the transactions
contemplated by this Agreement), (g) non-recurring cash charges for
expenses related to the transactions contemplated by the Loan
Documents, minus (h) non-cash credits, in each case of Limited and its
Subsidiaries determined in accordance with GAAP for such period.
"Eligible Assignee" means (a) with respect to any Facility
(other than the Letter of Credit Facility), (i) a Lender; (ii) an
Affiliate of a Lender; and (iii) any other Person approved by the
Administrative Agent and, unless an Event of Default has occurred and
is continuing at the time any assignment is effected in accordance with
Section 9.07, ESM, such approval not to be unreasonably withheld or
delayed and (b) with respect to the Letter of Credit Facility, a Person
that is an Eligible Assignee under subclause (iii) of clause (a) of
this definition and is approved by the Administrative Agent and, unless
an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 9.07, ESM, such
approval not to be unreasonably withheld or delayed; provided, however,
that neither any Loan Party nor any Affiliate of a Loan Party shall
qualify as an Eligible Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
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authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or
guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation,
those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equity Investors" means Welsh, Carlson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII,
L.P., a Delaware limited partnership, and certain other affiliated
investors in the equity of Limited.
"ERISA"means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ESM" has the meaning specified in the recital of parties to
this Agreement.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrowers and the Administrative Agent.
"Eurodollar Rate" means, for the applicable Interest Period
for any Eurodollar Rate Advance comprising part of the same Borrowing,
an interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Dow ▇▇▇▇▇ Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in
U.S. dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is
not available, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%) by (b) a percentage equal to 100% minus the
Reserve Requirement for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.07(b)(ii).
"Events of Default" has the meaning specified in Section 6.01.
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9
"Existing Credit Agreement" means the credit agreement dated
as of December 5, 1997 among the Borrowers (other than Amdocs USA), the
Existing Lenders, NationsBank of Texas, N.A., as administrative agent,
The Bank of Nova Scotia, as syndication agent, and The Industrial Bank
of Japan, Limited, as documentation agent, as amended as of January 6,
1998.
"Existing Debt" has the meaning specified in Section 4.01(y)
hereof.
"Existing Lenders" means the lenders party to the Existing
Credit Agreement.
"Facility" means the Revolving Credit Facility, the Swing Line
Facility or the Letter of Credit Facility.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent (in its individual capacity) on
such day on such transactions as determined by the Administrative
Agent.
"Fiscal Year" means a fiscal year of Limited and its
Consolidated Subsidiaries ending on September 30 in any calendar year.
"Funded Debt" of any Person means, on any date of
determination, the following, calculated on a Consolidated basis for
such Person and its Subsidiaries in accordance with GAAP: (a) all
obligations for borrowed money (whether as a direct obligation on a
promissory note, bond, zero coupon bond, debenture or other similar
instrument, as an unsatisfied reimbursement obligation on a drawn
letter of credit, as a guaranty (if payment on such obligation has been
demanded), or otherwise) plus (without duplication) (b) that portion of
all Capital Lease obligations required to be capitalized in accordance
with GAAP minus (c) cash and cash equivalents of such Person.
"GAAP" means generally accepted accounting principles of the
Accounting Principles Board of the American Institute of Certified
Public Accountants and the Financial Accounting Standards Board that
are applicable on the date of this Agreement, subject to changes
permitted by Section 1.03. "Guarantor" means ESM, Amdocs Inc., CADET,
Amdocs USA, Amdocs Services Inc., Sypress, Inc., Amdocs Japan Limited
and each other Person that shall become a guarantor in accordance with
Section 5.01(l).
"Guaranty" means the US Loan Party Guaranty or the Non-US Loan
Party Guaranty.
"Hazardous Materials" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
14
10
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Hedge Bank" means any Lender Party or any of its Affiliates
in its capacity as a party to a Bank Hedge Agreement.
"Increase Date" has the meaning specified in Section 2.16(a).
"Indemnified Party" has the meaning specified in Section
9.04(b).
"Initial Extension of Credit" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"Initial Issuing Bank" has the meaning specified in the
recital of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Interest Expense" means interest expense net of interest
income, whether paid or accrued, (including the interest component of
Capitalized Lease obligations) on all Funded Debt.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the applicable Borrower pursuant
to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the applicable
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the
applicable Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (Dallas, Texas time) on the third
Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(a) the Borrowers may not select any Interest Period
that ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
15
11
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities of such Person, any capital contribution to such
Person or any other investment in such Person.
"Issuing Bank" means the Initial Issuing Bank and each
Eligible Assignee to which the Letter of Credit Commitment hereunder
has been assigned pursuant to Section 9.07.
"L/C Cash Collateral Account" has the meaning specified in the
Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(f)(ii).
"Lender Party" means any Lender, the Issuing Bank or the Swing
Line Bank.
"Lenders" means the Initial Lenders, each Assuming Lender that
shall become a party hereto pursuant to Section 2.16 and each Person
that shall become a Lender hereunder pursuant to Section 9.07.
"Letter of Credit" has the meaning specified in Section
2.01(f).
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to the
Issuing Bank at any time, the amount set forth opposite the Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if the Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for the Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
9.07(d) as the Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the amount of the Issuing Bank's Letter of Credit Commitment
at such time, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Leverage Ratio" means, as of any date of determination, the
ratio of Consolidated Funded Debt as of such date of determination to
Consolidated EBITDA for the four fiscal quarters ending on or
immediately prior to such date of determination, in each case, of
Limited and its Subsidiaries.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Limited" means Amdocs Limited, a Guernsey corporation.
"Loan Documents" means (a) for purposes of this Agreement and
the Notes and any amendment or modification hereof or thereof and for
all other purposes other than for purposes of the Guaranty and
16
12
the Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the
US Loan Party Guaranty, (iv) the Non-US Loan Party Guaranty, (v) the
Collateral Documents and (vi) each Letter of Credit Agreement and (b)
for purposes of each Guaranty and the Collateral Documents, (i) this
Agreement, (ii) the Notes, (iii) the US Loan Party Guaranty, (iv) the
Non-US Loan Party Guaranty, (v) the Collateral Documents, (vi) each
Letter of Credit Agreement and (vii) each Bank Hedge Agreement, in each
case as amended or otherwise modified from time to time.
"Loan Parties" means the Borrowers and the Guarantors.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of ESM and its Subsidiaries, taken
as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of ESM and its Subsidiaries, taken
as a whole, (b) the rights and remedies of the Administrative Agent or
any Lender Party under any Loan Document or Related Document or (c) the
ability of any Loan Party to perform its Obligations under any Loan
Document or Related Document to which it is or is to be a party.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NationsBank" has the meaning specified in the recital of
parties to this Agreement.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance of
any Debt or capital stock or other ownership or profit interest, any
securities convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights, options or other
securities to acquire capital stock or other ownership or profit
interest by any Person, or any Extraordinary Receipt received by or
paid to or for the account of any Person, the aggregate amount of cash
received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of
such Person in connection with such transaction after deducting
therefrom only (without duplication) (a) reasonable and customary
brokerage commissions, underwriting fees and discounts, legal fees,
finder's fees and other similar fees and commissions, (b) the amount of
taxes payable in connection with or as a result of such transaction and
(c) the amount of any Debt secured by a Lien on such asset that, by the
terms of such transaction, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are properly attributable to such transaction
or to the asset that is the subject thereof and are, in the case of
clauses (a) and (c), at the time of receipt of such cash, actually paid
to a Person that is not an Affiliate of such Person or any Loan Party
or any Affiliate of any Loan Party and, in the case of clause (b), on
the earlier of the dates on which the tax return covering such taxes is
filed or required to be
17
13
filed actually paid to a Person that is not an Affiliate of such Person
or any Loan Party, provided that if the amount deducted pursuant to
clause (b) above is greater than the amount actually so paid, the
amount of such excess shall constitute "Net Cash Proceeds".
"Non-US Loan Party Guaranty" has the meaning specified in
Section 3.01(d)(ix).
"Note" means a promissory note of a Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the indebtedness of such Borrower to such Lender resulting
from the Revolving Credit Advances made by such Lender.
"Note Purchase Agreement" means the Note Purchase Agreement
dated as of September 22, 1997, as amended by a First Amendment
substantially in the form of the draft dated December 5, 1997, among
ESM, CPIII, as agent, and the purchasers of the Subordinated Notes,
pursuant to which the Subordinated Notes are issued.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Renewal" has the meaning specified in Section
2.01(f).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Notice of Termination" has the meaning specified in Section
2.01(f).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents for purposes of the Collateral
Documents include (a) the obligation to pay principal, interest, Letter
of Credit commissions, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by any Loan Party
under any Loan Document and (b) the obligation of any Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.
"Open Year" has the meaning specified in Section 4.01(s).
"Other Taxes" has the meaning specified in Section 2.12(b).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies not yet due and payable; (b) Liens
imposed by law, such as materialmen's, mechanics', carriers', workmen's
and repairmen's Liens and other similar Liens arising in theordinary
course of business securing obligations that are not overdue for a
period of more than 30 days; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or
to secure public or statutory obligations; and (d) easements, rights of
way and other encumbrances on title to real property that do not render
title to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present purposes.
18
14
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time and the denominator of which is the Revolving
Credit Facility at such time.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not
solely within the control of the issuer or (b) is redeemable at the
option of the holder.
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Related Documents" means the Subordinated Debt Documents.
"Required Lenders" means at any time Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time and (c) the aggregate Unused Revolving Credit Commitments at such
time; provided, however, that if any Lender shall be a Defaulting
Lender at such time, there shall be excluded from the determination of
Required Lenders at such time (A) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (B) such Lender's Pro Rata Share of the
aggregate Available Amount of all Letters of Credit issued by such
Lender and outstanding at such time and (C) the Unused Revolving Credit
Commitment of such Lender at such time. For purposes of this
definition, the aggregate principal amount of Swing Line Advances owing
to the Swing Line Bank and of Letter of Credit Advances owing to the
Issuing Bank and the Available Amount of each Letter of Credit shall be
considered to be owed to the Lenders ratably in accordance with their
respective Revolving Credit Commitments.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (a) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (b) any category of extensions
of credit or other assets which include Eurodollar Rate Advances.
"Responsible Officer" of any Person means the chairman, vice
chairman, president, chief executive officer, chief financial officer,
controller or senior vice president of such Person.
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"Revolving Credit Advance" means has the meaning specified in
Section 2.01(a).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type.
"Revolving Credit Commitment" means, with respect to any
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or,
if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(d) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"Scheduled Principal Payments" means for determination on the
last day of any fiscal quarter, scheduled principal payments of all
Funded Debt actually paid during the four fiscal quarters most recently
ended.
"Secured Parties" means the Administrative Agent, the Lender
Parties and the Hedge Banks.
"Security Agreement" has the meaning specified in Section
3.01(d)(v).
"Significant Subsidiary" means each Subsidiary of any Borrower
to which as of the end of any fiscal year of such Borrower is
attributed more than five percent of the Consolidated revenues or more
than five percent of the Consolidated cash flow, in each case of
Limited and its Subsidiaries taken as a whole, determined by reference
to the most recent annual audited financial statements delivered to the
Lenders pursuant to Section 5.03(c) or, in the case of any Subsidiary
of any Borrower that is acquired oris merged with or into any other
Subsidiary of any Borrower, determined by reference to the pro forma
financial statements of Limited and its Subsidiaries prepared in
accordance with GAAP as of the most recent fiscal year end of Limited,
giving effect to such acquisition or merger as if such transaction had
been consummated as of the last day of such fiscal year.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the present probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital under any applicable law. 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.
"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"Sublimit" means, for each Borrower, the amount set opposite
the name of such Borrower below, as such amounts may be reduced
pursuant to Section 2.05:
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===============================================================
ESM $ 70,000,000
===============================================================
Amdocs U.K. $ 50,000,000
===============================================================
Amdocs Inc. $100,000,000
===============================================================
Amdocs USA $ 60,000,000
===============================================================
CADET $ 20,000,000
===============================================================
"Subordinated Debt" means the Subordinated Notes and any other
Debt of ESM that is subordinated to the Obligations of ESM under the
Loan Documents on, and that otherwise contains, terms and conditions
satisfactory to the Required Lenders.
"Subordinated Debt Documents" means the Note Purchase
Agreement and all other agreements, indentures and instruments pursuant
to which Subordinated Debt is issued or Liens securing the Subordinated
Debt are created.
"Subordinated Notes" means the subordinated notes of ESM in an
aggregate principal amount of $123,500,000 issued pursuant to the Note
Purchase Agreement.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Surviving Debt" has the meaning specified in Section 4.01(z).
"Swing Line Advance" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(d) or (b) any Lender pursuant to
Section 2.02(b).
"Swing Line Bank" means NationsBank.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section
2.01(d).
"Tax Certificate" has the meaning specified in Section
5.03(n).
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the earlier of June 30, 2001 and the
date of termination in whole of the Letter of Credit Commitments and
the Revolving Credit Commitment pursuant to Section 2.05 or 6.01.
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17
"Trade Letter of Credit" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of Inventory to a Borrower or any of its Subsidiaries to
effect payment for such Inventory.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to
any Lender at any time, (a) such Lender's Revolving Credit Commitment
at such time minus (b) the sum of (i) the aggregate principal amount of
all Revolving Credit Advances, Swing Line Advances and Letter of Credit
Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time, plus (ii) such Lender's Pro Rata Share of (A)
the aggregate Available Amount of all Letters of Credit outstanding at
such time, (B) the aggregate principal amount of all Letter of Credit
Advances made by the Issuing Bank pursuant to Section 2.03(c) and
outstanding at such time and (C) the aggregate principal amount of all
Swing Line Advances made by the Swing Line Bank pursuant to Section
2.01(e) and outstanding at such time.
"US Loan Party Guaranty" has the meaning specified in Section
3.01(g)(vii).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Principles. Under the Loan Documents,
unless otherwise stated, (a) GAAP determines all accounting and financial terms
and compliance with financial covenants, (b) GAAP in effect on the date of this
Agreement determines compliance with financial covenants, (c) otherwise, all
accounting principles applied in a current period must be comparable in all
material respects to those applied during the preceding comparable period and
(d) all accounting and financial terms and compliance with financial covenants
must be determined based on the Consolidated financial position and results of
operations of Limited and its Subsidiaries as applicable.. If there is a change
in GAAP after the date hereof, each compliance certificate shall include
calculations setting forth the adjustments from the relevant financial items as
shown in the most recently delivered financial statements, based on the
then-current GAAP, to the corresponding financial items based on GAAP as used in
the most recently delivered financial statements delivered to the Administrative
Agent and Lender Parties on or prior to the date hereof, so as to demonstrate
how such financial covenant compliance was derived from the most recently
delivered financial statements.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Revolving Credit Advances.
Each Lender severally agrees, on the terms and conditions hereinafter set forth,
to make advances (each a "Revolving Credit Advance") to any Borrower from time
to time on any Business Day during the period from the date hereof until the
Termination Date in an amount for each such Advance not to exceed such Lender's
Unused Revolving Credit Commitment at
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such time and in an aggregate amount for each Borrower not to exceed such
Borrower's Sublimit. Each Revolving Credit Borrowing shall be in an aggregate
amount of $3,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall consist of Revolving Credit Advances made simultaneously by the Lenders
ratably according to their Revolving Credit Commitments. Within the limits of
each Lender's Unused Revolving Credit Commitment in effect from time to time,
any Borrower may borrow under this Section 2.01(a), prepay pursuant to Section
2.06(a) and reborrow under this Section 2.01(a).
(b) The Swing Line Advances. Any Borrower may request the
Swing Line Bank to make, and the Swing Line Bank may, if in its sole discretion
it elects to do so, make, on the terms and conditions hereinafter set forth,
Swing Line Advances to such Borrower from time to time on any Business Day
during the period from the date hereof until the Termination Date (i) in an
aggregate amount not to exceed at any time outstanding $10,000,000 (the "Swing
Line Facility") and (ii) in an amount for each such Swing Line Borrowing not to
exceed the aggregate of the Unused Revolving Credit Commitments of the Lenders
at such time. No Swing Line Advance shall be used for the purpose of funding the
payment of principal of any other Swing Line Advance. Each Swing Line Borrowing
shall be in an amount of $500,000 or an integral multiple of $100,000 in excess
thereof and shall bear interest as set forth in Section 2.07(b)(iii). Within the
limits of the Swing Line Facility and within the limits referred to in clause
(ii) above, so long as the Swing Line Bank, in its sole discretion, elects to
make Swing Line Advances, the Borrowers may borrow under this Section 2.01(b),
repay pursuant to Section 2.04(e) or prepay pursuant to Section 2.06(a) and
reborrow under this Section 2.01(b).
(c) Letters of Credit. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue letters of credit (the "Letters
of Credit") for the account of any Borrower from time to time on any Business
Day during the period from the date hereof until 60 days before the Termination
Date (i) in an aggregate Available Amount for all Letters of Credit not to
exceed at any time the Issuing Bank's Letter of Credit Commitment at such time
and (ii) in an Available Amount for each such Letter of Credit not to exceed the
Unused Revolving Credit Commitments of the Lenders at such time. No Letter of
Credit shall have an expiration date (including all rights of the applicable
Borrower or the beneficiary to require renewal) later than the earlier of 60
days before the Termination Date and (A) in the case of a Standby Letter of
Credit, one year after the date of issuance thereof, but may by its terms be
renewable annually upon notice (a "Notice of Renewal") given to the Issuing Bank
and the Administrative Agent on or prior to any date for notice of renewal set
forth in such Letter of Credit but in any event at least three Business Days
prior to the date of the proposed renewal of such Standby Letter of Credit and
upon fulfillment of the applicable conditions set forth in Article III unless
the Issuing Bank has notified the applicable Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set
forth in such Letter of Credit but in any event at least 30 Business Days prior
to the date of automatic renewal of its election not to renew such Standby
Letter of Credit (a "Notice of Termination") and (B) in the case of a Trade
Letter of Credit, 60 days after the date of issuance thereof; provided that the
terms of each Standby Letter of Credit that is automatically renewable annually
shall (x) require the Issuing Bank to give the beneficiary named in such Standby
Letter of Credit notice of any Notice of Termination, (y) permit such
beneficiary, upon receipt of such notice, to draw under such Standby Letter of
Credit prior to the date such Standby Letter of Credit otherwise would have been
automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date later than 60 days before the Termination Date. If either a
Notice of Renewal is not given by the applicable Borrower or a Notice of
Termination is given by the Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the Issuing Bank may in its
discretion, unless instructed to the contrary by the Administrative Agent or the
applicable Borrower, deem that a Notice of Renewal had been timely delivered and
in such case, a Notice of Renewal shall be deemed to have been so delivered for
all purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrowers may request
the issuance of Letters of Credit under this Section 2.01(c), repay any Letter
of
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Credit Advances resulting from drawings thereunder pursuant to Section 2.03(c)
and request the issuance of additional Letters of Credit under this Section
2.01(c).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03, each Borrowing shall be made on notice,
given not later than 11:00 A.M. (Dallas, Texas time) on the third Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Eurodollar Rate Advances, or the first Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing consisting of Base
Rate Advances, by any Borrower to the Administrative Agent, which shall give to
each Appropriate Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Appropriate Lender shall, before 11:00 A.M.
(Dallas, Texas time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower requesting such Borrowing by crediting
the Borrower's Account of such Borrower; provided, however, that, in the case of
any Revolving Credit Borrowing, the Administrative Agent shall first make a
portion of such funds equal to the aggregate principal amount of any Swing Line
Advances and Letter of Credit Advances made by the Swing Line Bank or the
Issuing Bank, as the case may be, and by any other Lender and outstanding on the
date of such Revolving Credit Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank or the Issuing
Bank, as the case may be, and such other Lenders for repayment of such Swing
Line Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than 11:00 A.M. (Dallas, Texas time) on the date of the proposed Swing
Line Borrowing, by any Borrower to the Swing Line Bank and the Administrative
Agent. Each such notice of a Swing Line Borrowing (a "Notice of Swing Line
Borrowing") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the seventh Business Day after the requested date of such
Borrowing). If, in its sole discretion, it elects to make the requested Swing
Line Advance, the Swing Line Bank will make the amount thereof available to the
Administrative Agent at the Administrative Agent's Account, in same day funds.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower requesting such Swing Line
Borrowing by crediting the Borrower's Account. Upon written demand by the Swing
Line Bank, with a copy of such demand to the Administrative Agent, each other
Lender shall purchase from the Swing Line Bank, and the Swing Line Bank shall
sell and assign to each such other Lender, such other Lender's Pro Rata Share of
such outstanding Swing Line Advance as of the date of such demand, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Swing Line Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Swing Line Advance to be purchased by such
Lender. Each Borrower hereby agrees to each such sale and assignment. Each
Lender agrees to purchase its Pro Rata Share of an outstanding Swing Line
Advance on (i) the Business Day on which demand therefor is made by the Swing
Line Bank, provided that notice of such demand is given not later than 11:00
A.M. (Dallas, Texas time) on such Business Day or (ii) the first Business Day
next succeeding such demand if notice of such demand is given after such time.
Upon any such assignment by the Swing Line Bank to any other Lender of a portion
of a Swing Line Advance, the Swing Line Bank represents and warrants to such
other Lender that the Swing Line Bank is the legal and beneficial owner of such
interest being
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assigned by it, but makes no other representation or warranty and assumes no
responsibility with respect to such Swing Line Advance, the Loan Documents or
any Loan Party. If and to the extent that any Lender shall not have so made the
amount of such Swing Line Advance available to the Administrative Agent, such
Lender agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Swing Line Bank until the date such amount is paid to the Administrative Agent,
at the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such amount for the account of the Swing Line Bank on any Business Day, such
amount so paid in respect of principal shall constitute a Swing Line Advance
made by such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Swing Line Advance made by the Swing Line
Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) no Borrower may select Eurodollar Rate Advances for the
initial Borrowing hereunder or for any Borrowing if the aggregate amount of such
Borrowing is less than $3,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or Section 2.10 and (ii) the Revolving Credit Advances made on any
date may not be outstanding as part of more than seven separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower that delivers such
notice. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower
delivering such notice shall indemnify each Appropriate Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(e) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) or (b) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and the applicable Borrower severally
agree to repay or pay to the Administrative Agent forthwith on demand such
corresponding amount and to pay interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid or paid to the Administrative Agent, at (i) in the case of such Borrower,
the interest rate applicable at such time under Section 2.07 to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall pay to the Administrative Agent such corresponding
amount, such amount so paid shall constitute such Lender's Advance as part of
such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (Dallas, Texas time) on the
tenth Business Day prior to the date of the proposed issuance of such Letter of
Credit,
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by any Borrower to the Issuing Bank, which shall give to the Administrative
Agent and each Lender prompt notice thereof by telex or telecopier. Each such
notice of issuance of a Letter of Credit (a "Notice of Issuance") shall be by
telephone, confirmed immediately in writing, or telex or telecopier, specifying
therein the requested (i) date of such issuance (which shall be a Business Day),
(ii) Available Amount of such Letter of Credit, (iii) expiration date of such
Letter of Credit, (iv) name and address of the beneficiary of such Letter of
Credit and (v) form of such Letter of Credit, and shall be accompanied by such
application and agreement for letter of credit as the Issuing Bank may specify
to the Borrower for use in connection with such requested Letter of Credit (a
"Letter of Credit Agreement"). If (x) the requested form of such Letter of
Credit is acceptable to the Issuing Bank in its sole discretion and (y) it has
not received notice of objection to such issuance from Lenders holding at least
a majority of the Revolving Credit Commitments, the Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower requesting such Letter of Credit at
its office referred to in Section 9.02 or as otherwise agreed with such Borrower
in connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish
(i) to the Administrative Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued
during the previous week and drawings during such week under all Letters of
Credit, (ii) to each Lender on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of Credit issued
during the preceding month and drawings during such month under all Letters of
Credit and (iii) to the Administrative Agent and each Lender on the first
Business Day of each calendar quarter a written report setting forth the average
daily aggregate Available Amount during the preceding calendar quarter of all
Letters of Credit.
(c) Drawing and Reimbursement. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by the Issuing Bank, with a copy of such demand to the Administrative
Agent, each Lender shall purchase from the Issuing Bank, and the Issuing Bank
shall sell and assign to each such Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such purchase, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Issuing Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Letter of Credit Advance to be purchased by
such Lender. Promptly after receipt thereof, the Administrative Agent shall
transfer such funds to the Issuing Bank. Each Borrower hereby agrees to each
such sale and assignment. Each Lender agrees to purchase its Pro Rata Share of
an outstanding Letter of Credit Advance on (i) the Business Day on which demand
therefor is made by the Issuing Bank, provided notice of such demand is given
not later than 11:00 A.M. (Dallas, Texas time) on such Business Day or (ii) the
first Business Day next succeeding such demand if notice of such demand is given
after such time. Upon any such assignment by the Issuing Bank to any other
Lender of a portion of a Letter of Credit Advance, the Issuing Bank represents
and warrants to such other Lender that the Issuing Bank is the legal and
beneficial owner of such interest being assigned by it, free and clear of any
liens, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan Documents
or any Loan Party. If and to the extent that any Lender shall not have so made
the amount of such Letter of Credit Advance available to the Administrative
Agent, such Lender agrees to pay to the Administrative Agent forthwith on demand
such amount together with interest thereon, for each day from the date of demand
by the Issuing Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate for its account or the account of the Issuing
Bank, as applicable. If such Lender shall pay to the Administrative Agent such
amount for the account of the Issuing Bank on any Business Day, such amount so
paid in respect of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal
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amount of the Letter of Credit Advance made by the Issuing Bank shall be reduced
by such amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Revolving Credit
Advances. Each Borrower shall repay to the Administrative Agent for the ratable
account of the Lenders on the Termination Date the aggregate outstanding
principal amount of the Revolving Credit Advances made to such Borrower then
outstanding.
(b) Swing Line Advances. Each Borrower that requests a Swing
Line Borrowing shall repay to the Administrative Agent for the account of the
Swing Line Bank and each other Lender that has made a Swing Line Advance to such
Borrower the outstanding principal amount of each Swing Line Advance made by
each of them on the earlier of the maturity date specified in the applicable
Notice of Swing Line Borrowing (which maturity shall be no later than the
seventh Business Day after the requested date of such Borrowing) and the
Termination Date.
(c) Letter of Credit Advances. (i) Each Borrower that requests
the issuance of a Letter of Credit shall repay to the Administrative Agent for
the account of the Issuing Bank and each other Lender that has made a Letter of
Credit Advance to such Borrower on the earlier of demand and the Termination
Date the outstanding principal amount of each Letter of Credit Advance made by
each of them.
(ii) The Obligations of the Borrowers under this Agreement,
any Letter of Credit Agreement and any other agreement or instrument relating to
any Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being understood
that any such payment by any Borrower is without prejudice to, and does not
constitute a waiver of, any rights such Borrower might have or might acquire as
a result of the payment by the Issuing Bank of any draft or the reimbursement by
such Borrower thereof):
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the applicable
Borrower in respect of any L/C Related Document or any other amendment
or waiver of or any consent to departure from all or any of the L/C
Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the applicable Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any Persons for
whom any such beneficiary or any such transferee may be acting), the
Issuing Bank or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented under a
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;
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(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from the Guaranty or any other guarantee, for all
or any of the Obligations of the applicable Borrower in respect of the
L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the applicable Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. ESM may, on its own behalf and on behalf of the other Borrowers, upon
at least five Business Days' notice to the Administrative Agent, terminate in
whole or reduce in part the unused portions of the Letter of Credit Facility and
the Unused Revolving Credit Commitments; provided, however, that each partial
reduction of a Facility (i) shall be in an aggregate amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof and (ii) shall be made ratably
among the Appropriate Lenders in accordance with their Commitments with respect
to such Facility.
(b) Mandatory. (i) The Revolving Credit Facility shall be
automatically and permanently reduced (A) on the date that is 180 days after the
date of receipt by any Borrower, any of its Subsidiaries, Limited or Amdocs
(Israel), as the case may be, of the Net Cash Proceeds from the sale, lease,
transfer or other disposition of any assets of any Borrower, any of its
Subsidiaries or Amdocs (Israel) (other than any sale, lease, transfer or other
disposition of assets to Amdocs (Israel), a Borrower or any of their
Subsidiaries or pursuant to clause (i) or (ii) of Section 5.02(e)), to the
extent that the amount of such Net Cash Proceeds has not been reinvested in the
business of such Borrower, such Subsidiary, Limited or Amdocs (Israel), as the
case may be, prior to such 180th day and such Net Cash Proceeds exceed
$15,000,000 from the date hereof and (B) on the date and in the amount of each
mandatory prepayment required under Section 2.06(b)(i)(B).
(ii) The Letter of Credit Facility shall be automatically and
permanently reduced from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which the amount of the
Letter of Credit Facility exceeds the Revolving Credit Facility after giving
effect to such reduction of the Revolving Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. Each Borrower may,
upon at least one Business Day's notice in the case of Base Rate Advances and
three Business Days' notice in the case of Eurodollar Rate Advances, in each
case to the Administrative Agent (received not later than 11:00 A.M. (Dallas,
Texas time)) stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding aggregate principal amount of the Advances comprising part of the
same Borrowing in whole or ratably in part, together, in the case of Eurodollar
Rate Advances, with accrued interest to the date of such prepayment on the
aggregate principal amount prepaid; provided, however, that (x) each partial
prepayment (other than prepayments of Swing Line Advances) shall be in an
aggregate principal amount of $1,000,000 or an integral multiple of $1,000,000
in excess thereof and (y) if any prepayment of a Eurodollar Rate Advance is made
on a date other than the last day of an Interest Period for such Advance such
Borrower shall also pay any amounts owing pursuant to Section 9.04(c).
(b) Mandatory. (i) ESM shall (A) on the date that is 180 days
after the date of receipt by any Borrower, any of its Subsidiaries, Limited or
Amdocs (Israel), as the case may be, of the Net Cash Proceeds from the sale,
lease, transfer or other disposition of any assets of any Borrower, any of its
Subsidiaries or Amdocs (Israel) (other than any sale, lease, transfer or other
disposition of assets to Amdocs (Israel), a Borrower or any of their
Subsidiaries or pursuant to clause (i) or (ii) of Section 5.02(e)), prepay an
aggregate principal amount of the
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Advances comprising part of the same Borrowings equal to the amount of such Net
Cash Proceeds that has not been reinvested in the business of such Borrower,
such Subsidiary, Limited or Amdocs (Israel), as the case may be, prior to such
180th day to the extent that such Net Cash Proceeds exceed $5,000,000 in any
Fiscal Year and (B) within three Business Days following the date of receipt by
any Borrower, any of its Subsidiaries, Limited or Amdocs (Israel), as the case
may be, of the Net Cash Proceeds from the incurrence or issuance by any
Borrower, any of its Subsidiaries, Limited or Amdocs (Israel) of any Debt (other
than Debt incurred or issued to Amdocs (Israel), a Borrower or any of their
Subsidiaries or pursuant to Section 5.02(b)), prepay an aggregate principal
amount of the Advances comprising part of the same Borrowings equal to the
amount of such Net Cash Proceeds.
(ii) The Borrowers shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings, the Letter of Credit Advances and the Swing Line Advances
equal to the amount by which (A) the sum of the aggregate principal amount of
(x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the
Swing Line Advances then outstanding plus the aggregate Available Amount of all
Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility on
such Business Day.
(iii) The Borrowers shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on such
Business Day.
(iv) Each Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings made to such Borrower, the Letter of Credit Advances made to
such Borrower and the Swing Line Advances made to such Borrower equal to the
amount by which (A) the sum of the aggregate principal amount of (x) the
Revolving Credit Advances made to such Borrower, (y) the Letter of Credit
Advances made to such Borrower and (2) the Swing Line Advances made to such
Borrower then outstanding plus the Available Amount of all Letters of Credit
then outstanding at the request of such Borrower exceeds (B) such Borrower's
Sublimit on such Business Day.
(v) Prepayments of the Revolving Credit Facility made pursuant
to clause (iii) above shall be first, applied to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full, second, applied
to prepay Swing Line Advances then outstanding until such Advances are paid in
full and third, applied to prepay Revolving Credit Advances then outstanding
comprising part of the same Borrowings until such Advances are paid in full.
(vi) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. Each Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender by such Borrower from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time plus (B) the Applicable
Margin in effect from time to time, payable in arrears monthly on the
last day of each month during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in effect
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from time to time payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three
months from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(iii) Swing Line Advances. So long as NationsBank, as the
Swing Line Bank, has not sold or assigned to any other Lender any
portion of such Swing Line Advance, a rate equal to the Federal Funds
Rate plus 0.50% plus the Applicable Margin applicable to the Revolving
Credit Facility and, at such time as NationsBank, as the Swing Line
Bank, shall have sold or assigned to any other Lender any portion of
such Swing Line Advance, such Advance shall bear interest at the Base
Rate plus the Applicable Margin applicable to the Revolving Credit
Facility.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, each Borrower shall pay interest on (i) the
unpaid principal amount of each Advance owing to each Lender by such Borrower,
payable in arrears on the dates referred to in clause (a), (b)(i) or (b)(ii)
above and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Advance pursuant to clause
(a), (b)(i) or (b)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid, in the case of interest, on the Type of
Advance on which such interest has accrued pursuant to clause (a), (b)(i) or
(b)(ii) above, and, in all other cases, on Base Rate Advances pursuant to clause
(b)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a), the Administrative Agent shall
give notice to the Borrowers and each Appropriate Lender of the applicable
interest rate determined by the Administrative Agent for purposes of clause (a),
(b)(i) or (b)(ii).
SECTION 2.08. Fees. (a) Commitment Fee. The Borrowers shall
pay to the Administrative Agent for the account of the Lenders a commitment fee,
from the date hereof in the case of each Initial Lender and from the effective
date specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date, payable in
arrears on the date of the initial Borrowing hereunder, thereafter quarterly on
the last Business Day of each March, June, September and December, commencing
September 30, 1998, and on the Termination Date, at the rate per annum equal to
the Applicable Percentage on the sum of the average daily Unused Revolving
Credit Commitment of such Lender plus its Pro Rata Share of the average daily
outstanding Swing Line Advances during such quarter; provided, however, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower requesting
the issuance of a Letter of Credit shall pay to the Administrative Agent for the
account of each Lender a commission, payable in arrears quarterly on the last
Business Day of each March, June, September and December, commencing September
30, 1998, and on the earliest to occur of the full drawing, expiration,
termination or cancellation of any such Letter of Credit and on the Termination
Date, on such Lender's Pro Rata Share of the average daily aggregate Available
Amount during such quarter of all Letters of Credit outstanding from time to
time at the rate per annum equal to the Applicable Margin for Eurodollar Rate
Advances under the Revolving Credit Facility.
(ii) The Borrower requesting the issuance of a Letter of
Credit shall pay to the Issuing Bank for its own account (A) a fronting fee
payable in arrears quarterly on the last Business Day of each March, June,
September and December, commencing September 30, 1998, and on the Termination
Date on the average daily amount of its Letter of Credit Commitment during such
quarter, at the rate of 0.25% per annum and (B) such other
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26
commissions, fronting fees, transfer fees and other fees and charges in
connection with the issuance or administration of each Letter of Credit as such
Borrower and the Issuing Bank shall agree.
(c) Agents' Fees. ESM shall pay to the Administrative Agent
for its own account such fees as may from time to time be agreed between ESM and
the Administrative Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. Any
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (Dallas, Texas time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.10, Convert all or any portion of the Advances of one Type made to
such Borrower comprising the same Borrowing into Advances of the other Type;
provided, however, that any Conversion of Eurodollar Rate Advances into Base
Rate Advances shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than the minimum amount specified
in Section 2.02(c), no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(c) and each Conversion of Advances
comprising part of the same Borrowing under any Facility shall be made ratably
among the Appropriate Lenders in accordance with their Commitments under such
Facility. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the Borrower giving such notice.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of all Eurodollar Rate Advances comprising any Borrowing shall
be reduced, by payment or prepayment or otherwise, to less than $3,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If any Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Eurodollar Rate Advance having an Interest Period of one month.
(iii) Upon the occurrence and during the continuance of any
Default, (x) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(y) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If after the date
hereof, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation after the date hereof or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) after the date
hereof, there shall be any increase in the cost to any Lender Party of agreeing
to make or of making, funding or maintaining Eurodollar Rate Advances made to a
Borrower or of agreeing to issue or of issuing or maintaining Letters of Credit
or of agreeing to make or of making or maintaining Letter of Credit Advances
made to a Borrower (excluding for purposes of this Section 2.10 any such
increased costs resulting from (x) Taxes or Other Taxes (as to which Section
2.12 shall govern) and (y) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender Party is organized or
has its Applicable Lending Office or any political subdivision thereof), then
each such Borrower shall from time to time, upon demand by such Lender Party
through the Administrative Agent, pay to the Administrative Agent for the
account of such Lender Party additional amounts sufficient to compensate such
Lender Party for such increased cost; provided, however, that a Lender Party
claiming additional amounts under this Section 2.10(a) agrees to use reasonable
efforts (consistent with its
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internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party. A certificate as to the amount
of such increased cost (together with a schedule setting forth in reasonable
detail the reasons therefor and the calculation thereof), submitted to the
Borrowers by such Lender Party as promptly as reasonably practical after the
event or circumstances causing such increased cost, shall be conclusive and
binding for all purposes, absent manifest error. In determining such amount,
such Lender Party may use any reasonable averaging and attribution methods.
(b) If after the date hereof, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof, or (ii) the compliance with any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) after the date hereof, there shall be any increase in
the amount of capital required or expected to be maintained by any Lender Party
or corporation controlling such Lender Party as a result of or based upon the
existence of such Lender Party's commitment to lend or to issue Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of the Letters of Credit (or similar contingent obligations), then,
upon demand by such Lender Party through the Administrative Agent, the Borrowers
shall pay to the Administrative Agent for the account of such Lender Party, from
time to time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent
that such Lender Party reasonably determines such increase in capital to be
allocable to the existence of such Lender Party's commitment to lend or to issue
Letters of Credit hereunder or to the issuance or maintenance of any Letters of
Credit. A certificate as to such amounts (together with a schedule setting forth
in reasonable detail the reasons therefor and the calculation thereof) submitted
to the Borrowers by such Lender Party as promptly as reasonably practical after
the event or circumstances causing such increase in the amount of capital to be
maintained shall be conclusive and binding for all purposes, absent manifest
error. In determining such amount, such Lender Party may use any reasonable
averaging and attribution methods.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least a majority of the then aggregate unpaid
principal amount thereof notify the Administrative Agent that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Lenders of making, funding or maintaining their Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrowers and the Appropriate Lenders, whereupon (i) each such
Eurodollar Rate Advance under any Facility will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Alternate Base
Rate Advance and (ii) the obligation of the Appropriate Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrowers that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation after the date hereof shall make it unlawful, or any central bank or
other governmental authority shall assert that it is unlawful, for any Lender or
its Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrowers through the Administrative Agent, (i) each Eurodollar Rate
Advance under each Facility under which such Lender has a Commitment will
automatically, upon such demand, Convert into a Alternate Base Rate Advance
until the applicable Lender shall notify the Borrowers as promptly as reasonably
practicable after the event or circumstances causing such conversion no longer
exist and (ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrowers as promptly as practicable but
in any event within three months after such Lender has determined that the
circumstances causing such suspension no longer exist; provided, however, that,
before making any such demand, such Lender agrees to use reasonable efforts
(consistent with its internal policy and legal
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and regulatory restrictions) to designate a different Eurodollar Lending Office
if the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender. If any such event described in this subsection ceases to exist as to any
Lender, such Lender shall as promptly as reasonably practical so notify the
Administrative Agent and so long as such circumstances no longer apply to any
Lender, the obligations of each lender to make, fund or maintain Eurodollar Rate
Advances hereunder shall be reinstated.
SECTION 2.11. Payments and Computations. (a) Each Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 11:00 A.M. (Dallas, Texas time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds. The Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by such Borrower is in respect of principal,
interest, commitment fees or any other Obligation then payable hereunder and
under the Notes to more than one Lender Party, to such Lender Parties for the
account of their respective Applicable Lending Offices ratably in accordance
with the amounts of such respective Obligations then payable to such Lender
Parties and (ii) if such payment by such Borrower is in respect of any
Obligation then payable hereunder to one Lender Party, to such Lender Party for
the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming Lender's becoming
a Lender hereunder as a result of a Commitment Increase pursuant to Section
2.16, and upon the Administrative Agent's receipt of such Lender's Assumption
Agreement and recording of the information contained therein in the Register,
from and after the applicable Increase Date, the Administrative Agent shall make
all payments hereunder and under any Notes issued in connection therewith in
respect of the interest assumed thereby to the Assuming Lender. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application
to the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent may, but
shall not be obligated to, elect to distribute such funds to each Lender Party
ratably in accordance with such Lender Party's proportionate share of the
principal amount of all outstanding Advances and the Available Amount of all
Letters of Credit then outstanding, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) Each Borrower hereby authorizes each Lender Party, if and
to the extent payment owed to such Lender Party is not made when due hereunder
or, in the case of a Lender, under the Note held by such Lender, if an Event of
Default has occurred and is continuing, to charge from time to time against any
or all of such Borrower's accounts with such Lender Party any amount so due
(excluding any payroll or similar accounts).
(d) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder shall be conclusive and binding
for all purposes, absent manifest error.
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(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to any Lender
Party hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent any Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by any Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and the
Administrative Agent, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction
under the laws of which such Lender Party or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof and, in the case
of each Lender Party, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of
such Lender Party's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as "Taxes"). If any Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note to any Lender Party or the Administrative Agent, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.12, imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender Party or the Administrative Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 9.02, the original or a certified copy of a receipt
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evidencing such payment. In the case of any payment hereunder or under the Notes
by or on behalf of a Borrower through an account or branch outside the
jurisdiction in which such Borrower is organized (the United States, the United
Kingdom and Guernsey, as the case may be) or by or on behalf of a Borrower
organized in the United States, the United Kingdom or Guernsey, respectively, by
a payor that is not a United States person or a corporation organized under the
laws of the United Kingdom or Guernsey, respectively, if such Borrower
determines that no Taxes are payable in respect thereof, such Borrower shall
furnish, or shall cause such payor to furnish, to the Administrative Agent, at
such address, an opinion of counsel acceptable to the Administrative Agent
stating that such payment is exempt from, or otherwise not subject to, Taxes.
For purposes of this subsection (d) and subsection (e), the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender Party, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender or
Initial Issuing Bank and on the date of the Assignment and Acceptance pursuant
to which it becomes a Lender Party in the case of each other Lender Party, and
from time to time thereafter as requested in writing by any Borrower (but only
so long as such Lender Party remains lawfully able to do so), shall provide such
Borrower and the Administrative Agent with any form or certificate that is
required by any taxing authority including, if applicable, two original Internal
Revenue Service forms 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service or (in the case of a Lender Party
that is claiming exemption from United States withholding tax under Section
871(h) or 881(c) of the Internal Revenue Code with respect to payments of
"portfolio interest") two accurate and complete signed original Forms W-8 or any
successor form prescribed by the Internal Revenue Service (and, if such Lender
Party delivers Forms W-8, two signed certificates certifying that such Lender
Party is not (i) a "bank" for purposes of Section 881(c) of the Internal Revenue
Code, (ii) is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of any Borrower and (iii) is not a
controlled foreign corporation related to any Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code), as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
(if it is the case) that such Lender Party is exempt from or entitled to a
reduced rate of Home Jurisdiction Withholding Taxes (as defined below) on
payments pursuant to this Agreement or the Notes (or, in the case of a Lender
Party that initially becomes a party to this Agreement pursuant to an assignment
under Section 9.07, exempt from or entitled to a reduced rate of Home
Jurisdiction Withholding Taxes on payments made pursuant to this Agreement or
the Notes that is no greater than the rate to which the assigning Lender Party
was subject (assuming such assigning Lender Party provided such forms or
certificates as may be required by this subsection (e))); provided, however,
that such Lender Party shall have been advised in writing by each Borrower
(including at the time any renewal form is due) of the form or certificate
applicable to it, determined by reference to the jurisdiction of organization
and Applicable Lending Office of such Lender Party set forth on Schedule I
hereto, in the case of each Initial Lender or Initial Issuing Bank, or to the
jurisdiction of organization and Applicable Lending Office of such Lender Party
set forth in the Assignment and Acceptance pursuant to which it became a Lender
Party, in the case of each other Lender Party, or such other branch or office of
any Lender Party designated by such Lender Party from time to time. If any form
or document referred to in this subsection (e) requires the disclosure of
information not substantially similar to the information necessary to compute
the tax payable and information required on the date hereof by Internal Revenue
Service form 1001 or 4224 or United Kingdom Inland Revenue Form FD13, and which
a Lender Party reasonably considers to be confidential, such Lender Party shall
give notice thereof to the Borrowers and shall not be obligated to include in
such form or document such confidential information. If the accurate and
complete forms provided by a Lender Party at the time such Lender Party first
becomes a party to this Agreement indicate a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender Party provides the appropriate
form certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for periods governed by
such form; provided, however, that, if at the date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term
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Taxes shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includible in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
"Home Jurisdiction Withholding Taxes" means (a) in the case of
Amdocs Inc., CADET and Amdocs USA, withholding taxes imposed by the United
States, (b) in the case of Amdocs UK, withholding taxes imposed by the United
Kingdom of Great Britain and Wales and (c) in the case of ESM, withholding taxes
imposed by Guernsey.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrowers with the appropriate form described in
subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) with respect to Taxes imposed by the United States, the United Kingdom or
Guernsey, as applicable, by reason of such failure; provided, however, that
should a Lender Party become subject to Taxes because of its failure to deliver
a form or certificate required hereunder, the Borrowers, at the expense of such
Lender, shall take such steps as such Lender Party shall reasonably request to
assist such Lender Party to recover such Taxes.
(g) Each Lender Party shall promptly upon the request of the
Administrative Agent take all action (including without limitation the
completion of forms and the provision of information to the appropriate taxing
authorities or to the Administrative Agent), of the kind prescribed in
regulations promulgated under Section 118H of the UK Income and Corporation
Taxes Act of 1988 (and any statements published by the Inland Revenue relating
thereto and having general application) and consistent with such Lender Party's
legal and regulatory restrictions, reasonably requested by the Administrative
Agent, and the Administrative Agent shall upon reasonable request from any
Borrower make such request of each Lender Party and shall itself (consistent
with the Administrative Agent's legal and regulatory restrictions), to the
extent appropriate and reasonable, take similar action, to secure the benefit of
any exemption from, or relief with respect to, Taxes or Other Taxes imposed by
the United Kingdom under Section 118H of the UK Income and Corporation Taxes Act
of 1988 in relation to any amounts payable under this Agreement or any of the
Notes.
(h) Any Lender Party or the Administrative Agent (as the case
may be) claiming any additional amounts payable pursuant to this Section 2.12
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender Party or the Administrative
Agent (as the case may be), be otherwise disadvantageous to such Lender Party or
the Administrative Agent (as the case may be). Each Borrower shall promptly upon
request by any Lender Party or the Administrative Agent take all actions
(including, without limitation, the completion of forms and the provision of
information to the appropriate taxing authorities) reasonably requested by such
Lender Party or the Administrative Agent to secure the benefit of any exemption
from, or relief with respect to, Taxes or Other Taxes in relation to any amounts
payable under this Agreement.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) (a) on account of
Obligations due and payable to such Lender Party hereunder and under the Notes
at such time in excess of its ratable share (according to the proportion of (i)
the amount of such Obligations due and payable to such Lender Party at such time
to (ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the Notes at such time) of payments on account of
the Obligations due and payable to all Lender Parties hereunder and under the
Notes at such time obtained by all the Lender Parties at such time or (b) on
account of
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Obligations owing (but not due and payable) to such Lender Party hereunder and
under the Notes at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations owing to such Lender Party at
such time to (ii) the aggregate amount of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the Notes at such time) of
payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such participations in the Obligations due and payable or
owing to them, as the case may be, as shall be necessary to cause such
purchasing Lender Party to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender Party, such purchase from each
other Lender Party shall be rescinded and such other Lender Party shall repay to
the purchasing Lender Party the purchase price to the extent of such Lender
Party's ratable share (according to the proportion of (i) the purchase price
paid to such Lender Party to (ii) the aggregate purchase price paid to all
Lender Parties) of such recovery together with an amount equal to such Lender
Party's ratable share (according to the proportion of (i) the amount of such
other Lender Party's required repayment to (ii) the total amount so recovered
from the purchasing Lender Party) of any interest or other amount paid or
payable by the purchasing Lender Party in respect of the total amount so
recovered. Each Borrower agrees that any Lender Party so purchasing a
participation from another Lender Party pursuant to this Section 2.13 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender Party were the direct creditor of such Borrower in the amount of
such participation.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances
and issuances of Letters of Credit shall be available (and each Borrower agrees
that it shall use such proceeds and Letters of Credit) solely (i) to pay
transaction fees and expenses, (ii) to provide working capital for the operating
Subsidiaries of ESM, (iii) to redeem the Subordinated Notes and (iv) from time
to time to finance general corporate purposes.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to any Borrower and (iii) such
Borrower shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then such Borrower
may, so long as no Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law, set off and otherwise apply the
Obligation of such Borrower to make such payment to or for the account of such
Defaulting Lender against the obligation of such Defaulting Lender to make such
Defaulted Advance. In the event that, on any date, such Borrower shall so set
off and otherwise apply its obligation to make any such payment against the
obligation of such Defaulting Lender to make any such Defaulted Advance on or
prior to such date, the amount so set off and otherwise applied by such Borrower
shall constitute for all purposes of this Agreement and the other Loan Documents
an Advance by such Defaulting Lender made on the date of such set-off. Such
Advance shall be a Base Rate Advance and shall be considered, for all purposes
of this Agreement, to comprise part of the Borrowing in connection with which
such Defaulted Advance was originally required to have been made pursuant to
Section 2.01, even if the other Advances comprising such Borrowing shall be
Eurodollar Rate Advances on the date such Advance is deemed to be made pursuant
to this subsection (a). Each Borrower shall notify the Administrative Agent at
any time such Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the Defaulting
Lender and the Defaulted Advance required to be made by such Defaulting Lender
and (B) the amount set off and otherwise applied in respect of such Defaulted
Advance pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by any Borrower to or for the account of such Defaulting
Lender which is paid by such Borrower, after giving effect to the amount set off
and otherwise applied by such Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lender
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Parties and (iii) any Borrower shall make any payment hereunder or under any
other Loan Document to the Administrative Agent for the account of such
Defaulting Lender, then the Administrative Agent may, on its behalf or on behalf
of such other Lender Parties and to the fullest extent permitted by applicable
law, apply at such time the amount so paid by such Borrower to or for the
account of such Defaulting Lender to the payment of each such Defaulted Amount
to the extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such amount
so applied by the Administrative Agent shall be retained by the Administrative
Agent or distributed by the Administrative Agent to such other Lender Parties,
ratably in accordance with the respective portions of such Defaulted Amounts
payable at such time to the Administrative Agent and such other Lender Parties
and, if the amount of such payment made by any Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent and the other Lender Parties, in the following order of
priority:
(i) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by any Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) any Borrower, the
Administrative Agent or any other Lender Party shall be required to pay or
distribute any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then such Borrower or such other Lender Party
shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held
by the Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with NationsBank, in the
name and under the control of the Administrative Agent, but subject to the
provisions of this subsection (c). The terms applicable to such account,
including the rate of interest payable with respect to the credit balance of
such account from time to time, shall be NationsBank's standard terms applicable
to escrow accounts maintained with it. Any interest credited to such account
from time to time shall be held by the Administrative Agent in escrow under, and
applied by the Administrative Agent from time to time in accordance with the
provisions of, this subsection (c). The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in escrow
from time to time to the extent necessary to make any Advances required to be
made by such Defaulting Lender and to pay any amount payable by such Defaulting
Lender hereunder and under the other Loan Documents to the Administrative Agent
or any other Lender Party, as and when such Advances or amounts are required to
be made or paid and, if the amount so held in escrow shall at any time be
insufficient to make and pay all such Advances and amounts required to be made
or paid at such time, in the following order of priority:
(i) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
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(ii) second, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iii) third, to such Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that the
Borrowers may have against such Defaulting Lender with respect to any Defaulted
Advance and that the Administrative Agent or any Lender Party may have against
such Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.16. Increase in the Aggregate Commitments. (a) The
Borrowers may, at any time (but not more than twice) prior to July 15, 1998, by
notice to the Administrative Agent, request that the aggregate amount of the
Commitments be increased by an amount of $5,000,000 or an integral multiple of
$5,000,000 in excess thereof (each a "Commitment Increase") to be effective as
of a date that is at least five days after such request (the "Increase Date") as
specified in the related notice to the Administrative Agent; provided, however,
that (i) in no event shall the aggregate amount of the Commitments at any time
exceed $120,000,000, and (ii) no Default shall have occurred and be continuing
as of the date of such request or as of the applicable Increase Date, or shall
occur as a result thereof.
(b) The Administrative Agent shall promptly notify the Lenders
of a request by the Borrowers for a Commitment Increase, which notice shall
include (i) the proposed amount of such requested Commitment Increase, (ii) the
proposed Increase Date and (iii) the date by which Lenders wishing to
participate in the Commitment Increase must commit to an increase in the amount
of their respective Commitments (the "Commitment Date"). Each Lender that is
willing to participate in the requested Commitment Increase (each an "Increasing
Lender") shall give written notice to the Administrative Agent on or prior to
the Commitment Date of the amount by which it is willing to increase its
Commitment. If the Lenders notify the Administrative Agent that they are willing
to increase the amount of their respective Commitments by an aggregate amount
that exceeds the amount of the requested Commitment Increase, the requested
Commitment Increase shall be allocated among the Lenders willing to participate
therein in such amounts as are agreed among the Borrowers and the Administrative
Agent.
(c) Promptly following each Commitment Date, the
Administrative Agent shall notify the Borrowers as to the amount, if any, by
which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to
participate in the requested Commitment Increase on any such Commitment Date is
less than the requested Commitment Increase, then the Borrowers may extend
offers to one or more Eligible Assignees to participate in any portion of the
requested Commitment Increase that has not been committed to by the Lenders as
of the applicable Commitment Date; provided, however, that the Commitment of
each such Eligible Assignee shall be in an amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that accepts
an offer to participate in the requested Commitment Increase in accordance with
Section 2.16(c) (each, an "Assuming Lender") shall become a
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Lender party to this Agreement as of such Increase Date and the Commitment of
each Increasing Lender for the requested Commitment Increase shall be so
increased by such amount (or by the amount allocated to such Lender pursuant to
the last sentence of Section 2.16(b)) as of such Increase Date; provided,
however, that the Administrative Agent shall have received on or before such
Increase Date the following, each dated such date:
(i) an assumption agreement from each Assuming Lender, if any,
in form and substance satisfactory to the Borrower and the
Administrative Agent (each an "Assumption Agreement"), duly executed by
such Eligible Assignee, the Administrative Agent and the Borrowers; and
(ii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the
Borrowers and the Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.16(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrowers, on or before 1:00 P.M. (Dallas, Texas time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Assuming Lender on such date. Each
Increasing Lender and each Assuming Lender shall, before 2:00 P.M. (Dallas,
Texas time) on the Increase Date, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, in the case of such Assuming Lender, an
amount equal to such Assuming Lender's ratable portion of the Revolving Credit
Borrowings then outstanding (calculated based on its Commitment as a percentage
of the aggregate Commitments outstanding after giving effect to the relevant
Commitment Increase) and, in the case of such Increasing Lender, an amount equal
to the excess of (i) such Increasing Lender's ratable portion of the Revolving
Credit Borrowings then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after giving effect to the
relevant Commitment Increase) over (ii) such Increasing Lender's ratable portion
of the Revolving Credit Borrowings then outstanding (calculated based on its
Commitment (without giving effect to the relevant Commitment Increase) as a
percentage of the aggregate Commitments (without giving effect to the relevant
Commitment Increase)). After the Administrative Agent's receipt of such funds
from each such Increasing Lender and each such Assuming Lender, the
Administrative Agent will promptly thereafter cause to be distributed like funds
to the other Lenders for the account of their respective Applicable Lending
Offices in an amount to each other Lender such that the aggregate amount of the
outstanding Revolving Credit Advances owing to each Lender after giving effect
to such distribution equals such Lender's ratable portion of the Revolving
Credit Borrowings then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after giving effect to the
relevant Commitment Increase). If and to the extent that any Assuming Lender or
any Increasing Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and the Borrowers (ratably in accordance
with the amount of Advances then outstanding to each of them) severally agree to
pay or repay to the Administrative Agent forthwith on demand such corresponding
amount and to pay interest thereon, for each day from the relevant Increase Date
until the date such amount is repaid or paid to the Administrative Agent, at (i)
in the case of the Borrowers, the interest rate applicable at such time under
Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. Within five Business Days after the Borrowers
receive notice from the Administrative Agent, each Borrower, at its own expense,
shall execute and deliver to the Administrative Agent, Revolving Credit Notes
payable to the order of each Assuming Lender substantially in the form of
Exhibit A hereto. The Administrative Agent, upon receipt of such Revolving
Credit Notes, shall promptly deliver such Revolving Credit Notes to the
respective Assuming Lenders.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make an Advance or of the Issuing Bank
to issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of the following conditions precedent
before or concurrently with the Initial Extension of Credit:
(a) Before giving effect to the transactions contemplated by
this Agreement, there shall have occurred no material adverse change in
the business condition (financial or otherwise), operations,
performance, properties or prospects of any Loan Party, any of its
Subsidiaries or Limited since September 30, 1997.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement, any Note, any other Loan
Document, any Related Document or the consummation of the transactions
contemplated hereby.
(c) The Borrowers shall have paid all accrued fees and
expenses of the Administrative Agent and the Lender Parties (including
the accrued fees and expenses of counsel to the Administrative Agent
and local counsel to the Lender Parties).
(d) The Administrative Agent on behalf of the Lender Parties
shall have received on or before the day of the Initial Extension of
Credit the following, each dated such day (unless otherwise specified),
in form and substance satisfactory to the Lender Parties (unless
otherwise specified) and (except for the Notes) in sufficient copies
for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board
of Directors or Executive Committee of each Borrower and each
other Loan Party (other than Amdocs Japan Limited and
Directory Technology Pty. Ltd.) approving this Agreement, the
Notes, each other Loan Document and each Related Document to
which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental
and other third party approvals and consents, if any, with
respect to this Agreement, the Notes, each other Loan Document
and each Related Document.
(iii) A certificate of each Borrower and each other
Loan Party, signed on behalf of such Borrower and such other
Loan Party (other than Amdocs Japan Limited and Directory
Technology Pty. Ltd.) by its President or a Vice President and
its Secretary or any Assistant Secretary, dated the date of
the Initial Extension of Credit (the statements made in which
certificate shall be true on and as of the date of the Initial
Extension of Credit), certifying as to (A) the absence of any
amendments to the charter of such Borrower and such other Loan
Party since the date of the certificate referred to in Section
3.01(i)(iii) of the Existing Credit Agreement, (B) the due
incorporation and good standing (where applicable) of such
Borrower and such other Loan Party as a corporation organized
under the laws of the jurisdiction of its incorporation, and
the absence of any proceeding for the dissolution or
liquidation of such Borrower and such other Loan Party, (C)
the truth of the representations and warranties
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contained in the Loan Documents as though made on and as of
the date of the Initial Extension of Credit and (D) the
absence of any event occurring and continuing, or resulting
from the Initial Extension of Credit, that constitutes a
Default.
(iv) A certificate of the Secretary or an Assistant
Secretary of each Borrower and each other Loan Party
certifying the names and true signatures of the officers of
such Person authorized to sign this Agreement, the Notes, each
other Loan Document and each Related Document to which they
are or are to be parties and the other documents to be
delivered hereunder and thereunder.
(v) A security agreement supplement in the form of
Exhibit C to the security agreement dated as of January 6,
1998 made by the Grantors named therein in favor of the
Administrative Agent (as amended, supplemented or otherwise
modified from time to time in accordance with its terms and
together with each other security agreement delivered pursuant
to Section 5.01(k), in each case as amended, supplemented or
otherwise modified from time to time in accordance with its
terms, the "Security Agreement"), duly executed by Amdocs USA,
together with:
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank and instruments
evidencing the Pledged Debt, if any, referred to
therein indorsed in blank,
(B) acknowledgment copies or stamped receipt
copies of proper financing statements or other
appropriate filings, duly filed on or before the day
of the Initial Extension of Credit under the Uniform
Commercial Code or other appropriate laws of all
jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and
protect the first priority liens and security
interests created under the Security Agreement,
covering the Collateral described in the Security
Agreement,
(C) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing the financing statements or other
appropriate filings referred to in clause (B) above
and all other effective financing statements filed in
the jurisdictions referred to in clause (B) above
that name any Borrower or any other Loan Party as
debtor, together with copies of such other financing
statements or other appropriate filings,
(D) copies of the Assigned Agreements, if
any, referred to in the Security Agreement, together
with a consent to such assignment, in substantially
the form of Exhibit B to the Security Agreement, duly
executed by each party to such Assigned Agreements
other than the Borrowers,
(E) the Pledged Account Letters referred to
in the Security Agreement, duly executed by each
Pledged Account Bank referred to in the Security
Agreement, and
(F) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first
priority liens and security interests created under
the Security Agreement have been taken.
(vi) An amendment to the deed of charge over shares
made by ESM in favor of the Administrative Agent dated as of
January 6, 1998 (as amended, supplemented or otherwise
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modified in accordance with its terms, the "Deed of Charge
over Shares"), in substantially the form of Exhibit E, duly
executed by ESM, together with evidence that all actions that
may be necessary or desirable in order to perfect and protect
the first priority liens, security interests and charges
created by the Deed of Charge over Shares have been taken.
(vii) A consent in substantially the form of Exhibit
F, by the Guarantors (as defined in the US Loan Party
Guaranty) in favor of the Administrative Agent under the
guaranty dated as of January 6, 1998 made by such Guarantors
in favor of the Administrative Agent (together with each other
guaranty delivered by a Person organized under the laws of the
United States or a political subdivision thereof pursuant to
Section 5.01(k) or 5.01(l), in each case as amended,
supplemented or otherwise modified from time to time in
accordance with its terms, the "US Loan Party Guaranty"), duly
executed by each Guarantor party thereto, consenting to the
amendment and restatement contemplated by this Agreement.
(viii) An assumption of guaranty in substantially the
form of Exhibit A to the US Loan Party Guaranty, duly executed
by Amdocs USA.
(ix) A consent in substantially the form of Exhibit
G, by the Guarantors (as defined in the Non-US Loan Party
Guaranty) in favor of the Administrative Agent under the
guaranty dated as of January 6, 1998 made by such Guarantors
in favor of the Administrative Agent (together with each other
guaranty delivered by a Person organized under the laws of a
jurisdiction outside the United States pursuant to Section
5.01(k) or 5.01(l), in each case as amended, supplemented or
otherwise modified from time to time in accordance with its
terms, the "Non-US Loan Party Guaranty"), duly executed by
each Guarantor party thereto (other than Amdocs Japan Limited
and Directory Technology Pty. Ltd.), consenting to the
amendment and restatement contemplated by this Agreement.
(x) Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Lender
Parties shall have requested, including, without limitation,
information as to possible contingent liabilities, tax
matters, environmental matters, obligations under employee
benefit plans, collective bargaining agreements and other
arrangements with employees and forecasts prepared by
management of the Borrowers, in form and substance
satisfactory to the Lender Parties, of balance sheets, income
statements and cash flow statements on a quarterly basis for
the first year following the day of the Initial Extension of
Credit and on an annual basis for each year thereafter until
2001.
(xi) A favorable opinion of Reboul, MacMurray,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol, counsel for the Loan Parties, in
substantially the form of Exhibit H and as to such other
matters as any Lender Party through the Administrative Agent
may reasonably request.
(xii) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel
for ESM, and Frere Cholmeley ▇▇▇▇▇▇▇▇, counsel for Amdocs UK,
in substantially the forms of Exhibits I-1 and I-2 hereto, and
to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xiv) A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, Missouri counsel for Amdocs Inc., CADET and Amdocs
USA, in substantially the forms of Exhibit J hereto, and to
such other matters as any Lender Party through the
Administrative Agent may reasonably request.
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(xv) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank or a Lender pursuant to
Section 2.03(c) and a Swing Line Advance made by a Lender pursuant to Section
2.02(b)) on the occasion of each Borrowing (including the Initial Extension of
Credit), and the obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance) or renew a Letter of Credit and the right of
the Borrowers to request a Swing Line Borrowing, shall be subject to the further
conditions precedent that on the date of such Borrowing or issuance or renewal
(a) the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing, Notice of Swing Line Borrowing, Notice of
Issuance or Notice of Renewal and the acceptance by the relevant Borrower of the
proceeds of such Borrowing or of such Letter of Credit or the renewal of such
Letter of Credit shall constitute a representation and warranty by such Borrower
that both on the date of such notice and on the date of such Borrowing or
issuance or renewal such statements are true):
(i) the representations and warranties set forth in Section
4.01(a) through (f), (i), (j), (w) and (x) are correct in all material
respects on and as of the date of such Borrowing or issuance or
renewal, before and after giving effect to such Borrowing or issuance
or renewal and to the application of the proceeds therefrom, as though
made on and as of such date (other than any such representations or
warranties that, by their terms, are made as of a date other than the
date of such Borrowing or issuance or renewal); and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of
the proceeds therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit, specifying its objection thereto
and if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.
The Borrowers represent and warrant as follows:
(a) Each Loan Party (i) is a corporation duly organized,
validly existing and in good standing (where applicable) under the laws
of the jurisdiction of its incorporation, (ii) is duly qualified and in
good standing (where applicable) as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed is not reasonably likely
to have a Material Adverse
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Effect and (iii) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.
All of the outstanding capital stock of each Borrower has been validly
issued, is fully paid and non-assessable and is owned free and clear of
all Liens, except those created under the Collateral Documents and the
Subordinated Debt Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned (directly
or indirectly) by such Loan Party and the number of shares covered by
all outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. All of the outstanding capital stock
of all of such Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created under
the Loan Documents and the Subordinated Debt Documents. Each such
Subsidiary (i) is a corporation duly organized, validly existing and in
good standing (where applicable) under the laws of the jurisdiction of
its incorporation, (ii) is duly qualified and in good standing (where
applicable) as a foreign corporation in each other jurisdiction in
which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed is not reasonably likely to have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted.
(c) The execution, delivery and performance by each Loan Party
of this Agreement, the Notes, each other Loan Document and each Related
Document to which it is or is to be a party, and the consummation of
the transactions contemplated hereby, are within such Loan Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene such Loan Party's charter or bylaws
(or similar governing documents), (ii) violate any law (including,
without limitation, the Securities Exchange Act of 1934), rule,
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or
result in the breach of, or constitute a default in any material
respect under, any contract, loan agreement, indenture, mortgage, deed
of trust, lease or other instrument binding on or affecting any Loan
Party, any of its Subsidiaries or any of their properties or (iv)
except for the Liens created under the Loan Documents, result in or
require the creation or imposition of any Lien upon or with respect to
any of the properties of any Loan Party or any of its Subsidiaries. No
Loan Party or any of its Subsidiaries is in violation of any such law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which would have a Material
Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes, any other Loan Document or any Related Document
to which it is or is to be a party, or for the consummation of the
transactions contemplated hereby, (ii) the grant by any Loan Party of
the Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created by the Collateral
Documents (including the first priority nature thereof) or (iv) the
exercise by the Administrative Agent or any Lender Party of its rights
under the Loan Documents or the remedies in respect of the Collateral
pursuant to the Collateral Documents, except for the authorizations,
approvals, actions, notices and filings that are required as of the
date hereof or, in the case of any such authorizations, approvals,
actions, notices
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and filings that are required after the date hereof, have been
disclosed to the Lender Parties and, in any case have been duly
obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each of the Notes, each other
Loan Document and each Related Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party party
thereto. This Agreement is, and each of the Notes, each other Loan
Document and each Related Document when delivered hereunder will be,
the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with its
terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws affecting
creditors rights generally.
(f) The Consolidated and Consolidating balance sheets of
Limited and its Subsidiaries as at September 30, 1997, and the related
Consolidated and Consolidating statements of income and Consolidated
statement of cash flows of Limited and its Subsidiaries for the fiscal
year then ended, accompanied by an opinion of Ernst & Young LLP,
independent public accountants, and the Consolidated and Consolidating
balance sheet of Limited and its Subsidiaries as at March 31, 1998, and
the related Consolidated and Consolidating statements of income and
cash flows of Limited and its Subsidiaries for the six months then
ended, duly certified by the chief financial officer of Limited, copies
of which have been furnished to each Lender Party, fairly present,
subject, in the case of said balance sheet as at March 31, 1998, and
said statements of income and cash flows for the six months then ended,
to year-end audit adjustments, the Consolidated and Consolidating
financial condition of Limited and its Subsidiaries as at such dates
and the Consolidated and Consolidating results of the operations of
Limited and its Subsidiaries for the periods ended on such dates, all
in accordance with generally accepted accounting principles applied on
a consistent basis, and since September 30, 1997, there has been no
Material Adverse Change.
(g) The Consolidated and Consolidating forecasted balance
sheets, income statements and cash flows statements of the Borrowers
and their Subsidiaries delivered to the Lender Parties pursuant to
Section 3.01(d)(x) were prepared in good faith on the basis of
assumptions which were believed to be reasonable at the time made in
the light of conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the Borrowers'
best estimate of their future financial performance.
(h) No written information, exhibit or report furnished by any
Loan Party to the Administrative Agent or any Lender Party in
connection with the negotiation of the Loan Documents or pursuant to
the terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not materially misleading at the time so made.
(i) There is no action, suit, investigation, litigation or
proceeding, including any Environmental Action, to which any Loan Party
or any of its Subsidiaries is a party, pending or threatened before any
court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement, any Note, any
other Loan Document or any Related Document or the consummation of the
transactions contemplated hereby.
(j) No Borrower is engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds
of any Advance or drawings under any Letter of Credit will be used to
purchase or carry any Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock.
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(k) Following application of the proceeds of each Advance or drawing
under each Letter of Credit, not more than 25 percent of the value of the
assets (either of a Borrower only or of such Borrower and its Subsidiaries
on a Consolidated basis) subject to the provisions of Section 5.02(a) or
5.02(e) or subject to any restriction contained in any agreement or
instrument between such Borrower and any Lender Party or any Affiliate of
any Lender Party relating to Debt and within the scope of Section 6.01(e)
will be Margin Stock.
(l) Neither any Loan Party nor any ERISA Affiliate has any
Multiemployer Plan or Multiple Employer Plan.
(m) With respect to each scheme or arrangement mandated by a
government other than the United States (a "Foreign Government Scheme or
Arrangement") and with respect to each employee benefit plan maintained or
contributed to by any Loan Party that is not subject to United States law
(a "Foreign Plan"):
(i) Any employer and employee contributions required by law or
by the terms of any Foreign Government Scheme or Arrangement or any
Foreign Plan have been made, or, if applicable, accrued, in
accordance with normal accounting practices,
(ii) The fair market value of the assets of each funded
Foreign Plan, the liability of each insurer for any Foreign Plan
funded through insurance or the book reserve established for any
Foreign Plan, together with any accrued contributions, is sufficient
to procure or provide for the accrued benefit obligations, as of the
date hereof, with respect to all current and former participants in
such Foreign Plan according to the actuarial assumptions and
valuations most recently used to determine employer contributions to
such Foreign Plan, and
(iii) Each Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities.
(n) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God or of the public enemy or other casualty (whether or not
covered by insurance) that would be reasonably likely to have a Material
Adverse Effect.
(o) The operations and properties of each Loan Party and each of its
Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with
such Environmental Laws and Environmental Permits has been resolved
without ongoing obligations or costs, and no circumstances exist that
would be reasonably likely to (i) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law.
(p) Neither any Loan Party nor any of its Subsidiaries is a party to
any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that would
have a Material Adverse Effect.
(q) The Collateral Documents create a valid and perfected first
priority security interest in the Collateral as and to the extent set
forth in the Collateral Documents, securing the payment of the Secured
Obligations, and all filings and other actions necessary or desirable to
perfect and protect such security interest have been duly taken. The Loan
Parties are the legal and beneficial owners of the
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Collateral free and clear of any Lien, except for the liens and security
interests created or permitted under the Loan Documents.
(r) Each Loan Party and each of its Subsidiaries has filed, has
caused to be filed or has been included in all material tax returns
(Federal, state, local and foreign) required to be filed and has paid all
taxes shown thereon to be due, together with applicable interest and
penalties.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate
list, as of the date of the Existing Credit Agreement, of each taxable
year of each Loan Party and each of its Subsidiaries for which Federal
income tax returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or collection has not
occurred by reason of extension or otherwise (an "Open Year").
(t) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and
each of its Subsidiaries proposed by the Internal Revenue Service with
respect to Open Years does not exceed $2,000,000. No issues have been
raised by the Internal Revenue Service in respect of Open Years that, in
the aggregate, would have a Material Adverse Effect.
(u) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan
Party and its Subsidiaries proposed by all state, local and foreign taxing
authorities (other than amounts arising from adjustments to Federal income
tax returns) does not exceed $2,000,000. No issues have been raised by
such taxing authorities that, in the aggregate, would have a Material
Adverse Effect.
(v) No "ownership change" as defined in Section 382(g) of the
Internal Revenue Code, and no event that would result in the application
of the "separate return limitation year" or "consolidated return change of
ownership" limitations under the Federal income tax consolidated return
regulations, has occurred with respect to any Borrower or Limited since
September 30, 1992.
(w) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by the Borrowers, nor the
consummation of the other transactions contemplated hereby, will violate
any provision of such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(x) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(y) Set forth on Schedule 4.01(y) hereto is a complete and accurate
list of all Debt of the Borrowers outstanding on the date hereof and
having an outstanding principal amount or other payment obligation
(contingent or otherwise) of $1,000,000 or more (the "Existing Debt"),
showing as of the date hereof the principal amount outstanding thereunder.
(z) Set forth on Schedule 4.01(z) hereto is a complete and accurate
list of all Debt of the Borrowers, Amdocs (Israel) and their Subsidiaries
(the "Surviving Debt") that will remain outstanding after the application
of the proceeds of the Initial Extension of Credit, showing as of the date
hereof the principal amount outstanding thereunder, the maturity date
thereof and the amortization schedule therefor.
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(aa) Set forth on Schedule 4.01(aa) hereto is a complete and
accurate list of all real property owned by any Loan Party or any of its
Subsidiaries as of the date of the Existing Credit Agreement, showing as
of the date hereof the street address, county or other relevant
jurisdiction, state, record owner and book and estimated fair value
thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all
Liens, other than Liens created or permitted by the Loan Documents.
(bb) Set forth on Schedule 4.01(bb) hereto is a complete and
accurate list of all leases of real property under which any Loan Party or
any of its Subsidiaries is the lessee for which annual rental payments
exceed $500,000, showing as of the date of the Existing Credit Agreement
the street address, county or other relevant jurisdiction, state, lessor,
lessee, expiration date and annual rental cost thereof. Each such lease is
the legal, valid and binding obligation of the lessor thereof, enforceable
in accordance with its terms, except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors rights generally.
(cc) Set forth on Schedule 4.01(cc) hereto is a complete and
accurate list of all Investments held by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the amount, obligor or issuer
and maturity, if any, thereof.
(dd) Set forth on Schedule 4.01(dd) hereto is a complete and
accurate list of all patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses thereof, of each
Loan Party or any of its Subsidiaries, showing as of the date of the
Existing Credit Agreement the jurisdiction in which registered, the
registration number, the date of registration and the expiration date.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
material Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with Environmental Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither any Borrower nor any of its Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves (to the extent required by GAAP) are being
maintained, unless and until any Lien (other than a Permitted Lien)
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is consistent with past practice and prudent business practices.
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(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory),
permits, licenses, approvals, privileges and franchises necessary to the
conduct of the business of such Borrower or such Subsidiary; provided,
however, that the Borrowers and their Subsidiaries may consummate any
merger or consolidation permitted under Section 5.02(d); and provided
further that no Borrower and none of its Subsidiaries shall be required to
preserve (i) any tax or exchange control approvals the absence of which
would not materially interfere with the conduct of the business of such
Borrower or such Subsidiary or (ii) any other right, permit, license,
approval, privilege or franchise if the Board of Directors of such
Borrower or such Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of the business of such Borrower or
such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to such Borrower, such Subsidiary
or the Lender Parties.
(e) Visitation Rights. At any reasonable time and from time to time
upon reasonable notice, permit the Administrative Agent or any of the
Lender Parties or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account of, and
visit the properties of, such Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of such Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(h) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which such Borrower or any of its Subsidiaries is a party,
keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be forfeited
or canceled, notify the Administrative Agent of any default by any party
with respect to such leases and cooperate with the Administrative Agent in
all respects to cure any such default, and cause each of its Subsidiaries
to do so, except, in any case, where the failure to do so, either
individually or in the aggregate, would not be reasonably likely to have a
Material Adverse Effect.
(i) Performance of Related Documents. Perform and observe all of the
terms and provisions of each Related Document to be performed or observed
by it, maintain each such Related Document in full force and effect,
enforce such Related Document in accordance with its terms, take all such
action to such end as may be from time to time requested by the
Administrative Agent and, upon request of the Administrative Agent, make
to each other party to each such Related Document such demands and
requests for information and reports or for action as such Borrower is
entitled to make under such Related Document.
(j) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and not less favorable to such Borrower or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person not
an Affiliate other than (i) transactions among the
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Loan Parties and (ii) commercial transactions with Affiliates of SBC
International Inc. that are consistent in nature, scope and terms with
past practices used by any Loan Party or Amdocs (Israel) with respect to
such Persons.
(k) Covenant to Give Security. Upon the request of the
Administrative Agent following the occurrence and during the continuance
of an Event of Default, and at the expense of such Borrower, (i) within 10
days after such request, furnish to the Administrative Agent a description
of the real and personal properties of such Borrower and its Subsidiaries
in detail satisfactory to the Administrative Agent, (ii) within 15 days
after such request, duly execute and deliver to the Administrative Agent
mortgages, pledges, assignments and other security agreements, as
specified by and in form and substance satisfactory to the Administrative
Agent, securing payment of all the Obligations of such Borrower under the
Loan Documents and constituting Liens on all such properties, (iii) within
30 days after such request, take whatever action (including, without
limitation, the recording of mortgages, the filing of Uniform Commercial
Code financing statements, the giving of notices and the endorsement of
notices on title documents) may be necessary or advisable in the opinion
of the Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the security
agreements delivered pursuant to this Section 5.01(k), enforceable against
all third parties in accordance with their terms, (iv) within 60 days
after such request, deliver to the Administrative Agent a signed copy of a
favorable opinion, addressed to the Administrative Agent, of counsel for
such Borrower acceptable to the Administrative Agent as to the matters
contained in clauses (i), (ii) and (iii) above, as to such security
agreements being legal, valid and binding obligations of such Borrower and
its Subsidiaries enforceable in accordance with their terms and as to such
other matters as the Administrative Agent may reasonably request and (v)
at any time and from time to time, promptly execute and deliver any and
all further instruments and documents and take all such other action as
the Administrative Agent may deem desirable in obtaining the full benefits
of, or in preserving the Liens of, such security agreements.
(l) Additional Loan Parties. Cause any newly organized or acquired
direct or indirect wholly owned Significant Subsidiary of such Borrower to
promptly execute and deliver to the Administrative Agent prior to any
Investment permitted by Section 5.02(f), and cause each Subsidiary which
is not a Guarantor but is indicated to be a Significant Subsidiary in the
audited financial statements delivered pursuant to Section 5.03(c) to
promptly execute and deliver to the Administrative Agent (i) a security
agreement supplement in the form of Exhibit C to the Security Agreement,
(ii) a Guaranty in form and substance satisfactory to the Administrative
Agent and the Lender Parties and (iii) such other documents, agreements,
certificates or instruments as the Administrative Agent may reasonably
request, in each case in form and substance reasonably satisfactory to the
Administrative Agent, and to take all such other actions that may be
necessary or that the Administrative Agent may deem reasonably desirable
in order to perfect and protect any pledge, assignment or security
interest granted by such security agreement (granting a security interest
in the receivables, inventory, deposit accounts, equipment, intellectual
property and other assets of such Significant Subsidiary) of such
Significant Subsidiary to the Administrative Agent for the benefit of the
Lender Parties) or to enable the Administrative Agent to exercise and
enforce its rights and remedies thereunder.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, no Borrower will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or
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suffer to exist, or permit any of its Subsidiaries to sign or file or
suffer to exist, under the Uniform Commercial Code of any jurisdiction, a
financing statement that names such Borrower or any of its Subsidiaries as
debtor, or sign or suffer to exist, or permit any of its Subsidiaries to
sign or suffer to exist, any security agreement authorizing any secured
party thereunder to file such financing statement, or assign, or permit
any of its Subsidiaries to assign, any accounts or other right to receive
income, excluding, however, from the operation of the foregoing
restrictions the following:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 5.02(a) hereto;
(iv) purchase money Liens created by Amdocs (Israel), any
Subsidiary of a Borrower or any Borrower other than ESM upon or in
real property or equipment acquired or held by Amdocs (Israel), the
Borrowers or any of their Subsidiaries in the ordinary course of
business to secure the purchase price of such property or equipment
or to secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property or
equipment to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other than any
such Liens created in contemplation of such acquisition that do not
secure the purchase price), or extensions, renewals or replacements
of any of the foregoing for the same or a lesser amount; provided,
however, that no such Lien shall extend to or cover any property
other than the property or equipment being acquired, constructed or
improved, and no such extension, renewal or replacement shall extend
to or cover any property not theretofore subject to the Lien being
extended, renewed or replaced; and provided further that the
aggregate principal amount of the Debt secured by Liens permitted by
this clause (A) shall not exceed the amount permitted under Section
5.02(b)(iv)(A) at any time outstanding and that any such Debt shall
not otherwise be prohibited by the terms of the Loan Documents;
(v) Liens created by Amdocs (Israel), any Subsidiary of a
Borrower or any Borrower other than ESM arising in connection with
Capitalized Leases (including vehicle leases) permitted under
Section 5.02(b)(iv)(B); provided that no such Lien shall extend to
or cover any Collateral or assets other than the assets subject to
such Capitalized Leases including Liens in the lessee's rights under
such leases;
(vi) Liens created under the Subordinated Debt Documents;
(vii) Liens created by Amdocs (Israel) to secure Debt incurred
in accordance with Section 5.02(b)(v) and 5.02(b)(vi);
(viii) Liens on cash collateral advanced by its customers that
secure obligations incurred in the ordinary course of business
related to transactions with such customers or to secure letters of
credit that support such obligations;
(ix) Liens on cash collateral to secure obligations related to
transactions with vendors or related to Hedge Agreements other than
Bank Hedge Agreements or to secure letters of credit that support
such obligations in an aggregate amount of cash collateral permitted
under this clause (ix) not to exceed $5,000,000 at any time; and
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(x) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt
other than:
(i) in the case of ESM,
(A) Subordinated Debt evidenced by the Subordinated
Notes,
(B) Debt in respect of Hedge Agreements designed to
hedge against fluctuations in interest rates incurred in the
ordinary course of business and consistent with prudent
business practice in an aggregate notional amount (together
with Debt incurred pursuant to Section 5.02(b)(vii)(A)) not to
exceed $120,000,000 at any time outstanding;
(C) Debt in respect of Hedge Agreements designed to
hedge against fluctuations in foreign exchange rates incurred
in the ordinary course of business and consistent with past
practice; and
(D) Debt in respect of Redeemable Preferred Stock issued
to Persons that are shareholders of ESM on the date hereof
provided no mandatory redemption in respect thereof is
required at any time prior to the date that is six months
after the Termination Date;
(ii) in the case of Amdocs (Israel), any Borrower (other than
ESM) and its Subsidiaries, unsecured Debt in respect of performance
bonds in an aggregate principal amount for Amdocs (Israel), the
Borrowers and their Subsidiaries not to exceed the amount set forth
opposite each year set forth below at any time outstanding during
the Fiscal Year ending in such year:
YEAR AMOUNT
---- ------
1998 $25,000,000
1999 40,000,000
2000 55,000,000
2001 and thereafter 60,000,000
(iii) in the case of Amdocs (Israel), the Borrowers and any of
their Subsidiaries,
(A) Debt under the Loan Documents,
(B) the Surviving Debt,
(C) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary
course of business; and
(D) Debt owed to any Borrower or any other Loan Party;
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(iv) in the case of Amdocs (Israel), the Subsidiaries of any
Borrower or any Borrower other than ESM,
(A) Debt secured by Liens permitted by Section
5.02(a)(iv) in an aggregate principal amount for Amdocs
(Israel), the Borrowers and their Subsidiaries not to exceed
the amount set forth opposite each year set forth below at any
time outstanding during the Fiscal Year ending in such year:
YEAR AMOUNT
---- ------
1998 $30,000,000
1999 45,000,000
2000 60,000,000
2001 and thereafter 60,000,000
(B) Capitalized Leases (including vehicle leases) in an
aggregate principal amount for Amdocs (Israel), the Borrowers
and their Subsidiaries not to exceed the amount set forth
opposite each year set forth below incurred during the Fiscal
Year ending in such year:
YEAR AMOUNT
---- ------
1998 $15,000,000
1999 18,000,000
2000 20,000,000
2001 and thereafter 20,000,000
(C) any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, any Surviving Debt, provided
that the terms of any such extending, refunding or refinancing
Debt, and of any agreement entered into and of any instrument
issued in connection therewith, are otherwise permitted by the
Loan Documents and provided further that the principal amount
of such Surviving Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as a result
of or in connection with such extension, refunding or
refinancing,
(D) Debt of any Person that becomes a Subsidiary of a
Borrower or Amdocs (Israel) after the date hereof in
accordance with the terms of Section 5.02(f) that is existing
at the time such Person becomes a Subsidiary of such Borrower
or Amdocs (Israel) (other than Debt incurred solely in
contemplation of such Person becoming a Subsidiary of such
Borrower or Amdocs (Israel)),
(E) Debt of the type described in clause (i) of the
definition of "Debt" made in the ordinary course of business
guaranteeing (1) loans and advances made to employees by third
parties in an aggregate principal amount for Amdocs (Israel),
the Borrowers and their Subsidiaries not to exceed, together
with the amount of Investments permitted pursuant to Section
5.02(f)(ii), the amount set forth opposite each year set forth
below incurred during the Fiscal Year ending in such year:
YEAR AMOUNT
---- ------
1998 $3,000,000
1999 5,000,000
2000 7,000,000
2001 and thereafter 9,000,000
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(2) Obligations to customs officials in respect of the
importation of equipment in an aggregate amount for Amdocs
(Israel), the Borrowers and their Subsidiaries not to exceed
$1,000,000 at any time and (3) payments under lease
obligations for Amdocs (Israel), the Borrowers and their
Subsidiaries, and
(F) unsecured Debt not otherwise permitted under this
Section 5.02(b) in an aggregate principal amount for Amdocs
(Israel), the Borrowers and their Subsidiaries not to exceed
the amount set forth opposite each year set forth below at any
time outstanding during the Fiscal Year ending in such year:
YEAR AMOUNT
---- ------
1998 $10,000,000
1999 20,000,000
2000 30,000,000
2001 and thereafter 35,000,000
(v) in the case of Amdocs (Israel), Debt under a line of
credit to be established by First International Bank of Israel in an
aggregate principal amount outstanding not to exceed $40,000,000 at
any time, provided that the Lender Parties shall be reasonably
satisfied with the terms and conditions thereof, including, without
limitation, the term, covenants and events of default thereunder;
(vi) in the case of any Subsidiary of any Borrower, Debt owed
to a Borrower, provided that, in each case in which the amount of
such Debt is more than $2,000,000 or in which the maturity of such
Debt is more than one year, such Debt (x) shall constitute Pledged
Debt (as defined in the Security Agreement) and (y) shall be
evidenced by promissory notes in form and substance satisfactory to
the Administrative Agent and such promissory notes shall be pledged
as security for the Obligations of the holder hereof under the Loan
Documents to which the holder thereof is a party and delivered to
the Administrative Agent pursuant to the terms of the Collateral
Documents and provided further, that such Debt of Amdocs (Israel)
shall not exceed $20,000,000, such Debt of Directory Technology Pty.
Ltd. shall not exceed $10,000,000 and such Debt of Amdocs (Cyprus)
Ltd. shall not exceed $5,000,000; and
(vii) in the case of any Borrower other than ESM,
(A) Debt in respect of Hedge Agreements designed to
hedge against fluctuations in interest rates incurred in the
ordinary course of business and consistent with prudent
business practice and in an aggregate notional amount
(together with any Debt incurred pursuant to Section
5.02(b)(i)(A)) not to exceed $120,000,000 at any time
outstanding; and
(B) Debt in respect of Hedge Agreements designed to
hedge against fluctuations in foreign exchange rates incurred
in the ordinary course of business and consistent with past
practice.
(c) Lease Obligations. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any obligations as lessee for the rental or hire of
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real or personal property in connection with any sale and leaseback
transaction that would cause the direct and contingent liabilities of
Amdocs (Israel), the Borrowers and their Subsidiaries, on a Consolidated
basis, in respect of all such obligations of Amdocs (Israel), the
Borrowers and their Subsidiaries to exceed $15,000,000.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries to
do so, except that any Subsidiary of a Borrower or Amdocs (Israel), as the
case may be, may merge into or consolidate with any other Subsidiary of
such Borrower or Amdocs (Israel), as the case may be provided that, in the
case of any such merger or consolidation, the Person formed by such merger
or consolidation shall be a wholly-owned Subsidiary of such Borrower or
Amdocs (Israel), as the case may be, and, in the case of any such merger
or consolidation in which a Loan Party is a party, the Person formed by
such merger or consolidation shall be a Loan Party; provided, however,
that in each case, immediately after giving effect thereto, no event shall
occur and be continuing that constitutes a Default.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets, except:
(i) sales of inventory or licensing of software in the
ordinary course of its business,
(ii) in a transaction authorized by subsection (d) of this
Section, and
(iii) sales of assets for cash and for fair value in an
aggregate amount for Amdocs (Israel), the Borrowers and their
Subsidiaries not to exceed $10,000,000 in any Fiscal Year.
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments by Amdocs (Israel), the Borrowers and their
respective Subsidiaries in their Subsidiaries outstanding on the
date hereof;
(ii) loans and advances to employees in the ordinary course of
the business of Amdocs (Israel), the Borrowers and their
Subsidiaries as presently conducted in an aggregate principal amount
not to exceed, together with the amount of Debt permitted pursuant
to Section 5.02(b)(iv)(E)(1), the amount set forth opposite each
year set forth below incurred during the Fiscal Year ending in such
year:
YEAR AMOUNT
---- ------
1998 $3,000,000
1999 5,000,000
2000 7,000,000
2001 and thereafter 9,000,000
(iii) Investments by Amdocs (Israel), the Borrowers and their
Subsidiaries in Cash Equivalents;
(iv) Investments by ESM in Hedge Agreements permitted under
Section 5.02(b)(i)(B) and (C);
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(v) Investments existing on the date hereof and described on
Schedule 4.01(cc) hereto;
(vi) Investments by Amdocs (Israel) in any Subsidiary of ESM;
(vii) Investments in intercompany Debt permitted pursuant to
Section 5.02(b)(vi);
and
(viii) other Investments by Amdocs (Israel), any Borrower
other than ESM or by any Subsidiary of a Borrower in any entity that
concurrently with any such Investment becomes a Loan Party in an
aggregate amount invested not to exceed the amount set forth
opposite each year set forth below incurred during the Fiscal Year
ending in such year:
YEAR AMOUNT
---- ------
1998 $30,000,000
1999 40,000,000
2000 50,000,000
2001 and thereafter 60,000,000
provided that with respect to Investments made under clause (viii) above:
(1) any newly acquired or created Subsidiary of any Borrower or any of its
Subsidiaries shall be a wholly owned Subsidiary thereof; (2) immediately
before and after giving effect thereto, no Default shall have occurred and
be continuing or would result therefrom; (3) any business acquired or
invested in pursuant to clause (viii) above shall be in the same line of
business as the business of such Borrower or any of its Subsidiaries; and
(4) for any Investments in an amount exceeding the amounts set forth
opposite each year set forth below for the Fiscal Year ended in such year
the Required Lenders shall be satisfied with the resulting organizational
and financial structure of the Borrowers and their Subsidiaries:
YEAR AMOUNT
---- ------
1998 $25,000,000
1999 35,000,000
2000 40,000,000
2001 and thereafter 50,000,000
(g) Dividends, Etc. Declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its capital stock or
any warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such,
make any distribution of assets, capital stock, warrants, rights, options,
obligations or securities to its stockholders as such or issue or sell any
capital stock or any warrants, rights or options to acquire such capital
stock, or permit any of its Subsidiaries to purchase, redeem, retire,
defease or otherwise acquire for value any capital stock of such Borrower
or Amdocs (Israel), as the case may be, or any warrants, rights or options
to acquire such capital stock or to issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, except that, so
long as no Default shall have occurred and be continuing at the time of
any action described in clauses (i) through (v) below or would result
therefrom, (i) each Borrower and Amdocs (Israel) may declare and pay
dividends and distributions payable only in common stock of such Borrower
or Amdocs (Israel), as the case may be, (ii) any Subsidiary of such
Borrower or Amdocs (Israel), as the case may be, may declare and pay cash
dividends to such Borrower or Amdocs (Israel), as the case may be, and to
any other wholly-owned Subsidiary of such Borrower or Amdocs (Israel), as
the case may be, of which it is a Subsidiary, (iii) any Borrower or Amdocs
(Israel) may declare and pay cash dividends to Limited, provided that
Limited shall contemporaneously make a capital contribution or an
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advance to any Borrower in an amount equal to the cash proceeds of any
such dividend received by Limited; provided, however, that any such
advance shall have a maturity no earlier than a date that is one year
following the Termination Date, shall accrue cash interest no earlier than
a date that is one year following the Termination Date and shall be
subordinate to the Obligations of ESM under the Loan Documents on terms
acceptable to the Lender Parties, (iv) the Borrowers and Amdocs (Israel)
may declare and pay cash dividends to Limited in an aggregate amount not
to exceed 10% of Consolidated net income of Limited and its Subsidiaries,
arising after September 30, 1998 and computed on a cumulative basis and
(v) the Borrowers and Amdocs (Israel) may declare and pay cash dividends
to Limited to pay administrative and other expenses in an aggregate amount
not to exceed $2,000,000 in the Fiscal Year ended in 1998 and $1,000,000
in any Fiscal Year thereafter.
(h) Change in Nature of Business. (i) In the case of ESM, engage in
any business or activity other than (A) holding the capital stock of its
Subsidiaries and (B) entering into, and performing its obligations under,
the Loan Documents and the Related Documents and (ii) in the case of each
other Loan Party, make, or permit any of its Subsidiaries to make, any
material change in the nature of its business as carried on at the date
hereof.
(i) Charter Amendments. Amend, or permit any of its Subsidiaries to
amend, its certificate of incorporation or bylaws.
(j) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required by generally accepted accounting
principles or (ii) Fiscal Year.
(k) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner,
or make any payment in violation of any subordination terms of, any Debt,
other than (i) the prepayment of the Advances in accordance with the terms
of this Agreement, (ii) the prepayment of advances made to Amdocs (Israel)
under the line of credit to be established by First International Bank of
Israel, (iii) regularly scheduled or required repayments or redemptions of
Surviving Debt, (iv) the prepayment of the Subordinated Notes, provided
that the amount of prepayment permitted under this clause (iv) shall not
exceed the result of (x) the aggregate amount of the Commitments minus (y)
$25,000,000 and (v) the prepayment of the Subordinated Notes payable in an
aggregate amount not to exceed (x) the aggregate amount of such
Subordinated Notes outstanding on June 29, 1998 minus (y) the aggregate
amount paid pursuant to the preceding subclause (iv), or amend, modify or
change in any manner any term or condition of any Surviving Debt or
Subordinated Debt, or permit any of its Subsidiaries to do any of the
foregoing other than to prepay any Debt payable to such Borrower.
(l) Amendment, Etc. of Related Documents. Cancel or terminate any
Related Document or consent to or accept any cancellation or termination
thereof, amend, modify or change in any manner any term or condition of
any Related Document or give any consent, waiver or approval thereunder,
waive any default under or any breach of any term or condition of any
Related Document, agree in any manner to any other amendment, modification
or change of any term or condition of any Related Document or take any
other action in connection with any Related Document, in all cases, that
would impair the value of the interest or rights of such Borrower
thereunder or that would impair the rights or interests of the
Administrative Agent or any Lender Party, or permit any of its
Subsidiaries to do any of the foregoing.
(m) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets other than (i) in favor of the Secured
Parties or (ii) in connection with (A) any Surviving Debt or (B) any Debt
permitted by Section 5.02(b)(iv)(A) or (B) hereof so long as such
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limitation applies solely to the assets that are the subject of Liens or
Capitalized Leases referred to in such Sections.
(n) Partnerships, Etc. Become a general partner in any general or
limited partnership or similar joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary the sole assets of which
consist of its interest in such partnership or joint venture.
(o) Speculative Transactions. Enter into, or permit any of its
Subsidiaries to enter into, in any transaction involving commodity options
or futures contracts or any similar speculative transactions (including,
without limitation, take-or-pay contracts), except for Hedge Agreements
permitted under Section 5.02(b).
(p) Capital Expenditures. Make, or permit any of its Subsidiaries to
make, any Capital Expenditures that would cause the aggregate of all such
Capital Expenditures made by Amdocs (Israel), the Borrowers and their
Subsidiaries in any period set forth below to exceed the amount set forth
below for such period:
FISCAL YEAR ENDING IN AMOUNT
--------------------- ------
1998 $30,000,000
1999 35,000,000
2000 45,000,000
2001 63,000,000
plus, for each Fiscal Year set forth above, an amount not more than the
amount set forth above for the immediately preceding Fiscal Year (the
"Prior Year") equal to the excess of the amount of Capital Expenditures
permitted to be made by the Borrowers, Amdocs (Israel) and their
Subsidiaries in such Prior Year over the aggregate amount of Capital
Expenditures made by the Borrowers, Amdocs (Israel) and their Subsidiaries
during such Prior Year.
(q) ERISA. Have, or permit any of its Subsidiaries or ERISA
Affiliate to have, any Multiemployer Plan or Multiple Employer Plan.
(r) Cash at Amdocs (Israel). In the case of Amdocs (Israel),
maintain an aggregate balance of cash and cash equivalents of more than
$20,000,000 for a period of more than 30 consecutive days.
SECTION 5.03. Reporting Requirements. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Borrowers will furnish to the
Administrative Agent in sufficient copies for each Lender Party as requested by
the Administrative Agent:
(a) Default Notice. As soon as possible and in any event within two
Business Days after the occurrence and continuation of each Default or any
event, development or occurrence reasonably likely to have a Material
Adverse Effect, a statement of the chief financial officer of ESM setting
forth details of such Default, event, development or occurrence and the
action that the Borrowers have taken and propose to take with respect
thereto.
(b) Quarterly Financials. As soon as available and in any event
within 45 days after the end of each of the first three quarters of each
Fiscal Year, unaudited Consolidated and Consolidating balance sheets of
Limited and its Subsidiaries as of the end of such quarter and unaudited
Consolidated and Consolidating statements of income and an unaudited
Consolidated statement of cash flows of Limited
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and its Subsidiaries for the period commencing at the end of the previous
fiscal quarter and ending with the end of such fiscal quarter and
unaudited Consolidated and Consolidating statements of income and an
unaudited Consolidated statement of cash flows of Limited and its
Subsidiaries for the period commencing at the end of the previous Fiscal
Year and ending with the end of such quarter, setting forth in each case
in comparative form the corresponding figures for the corresponding period
of the preceding Fiscal Year, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by the chief financial officer of
Limited as having been prepared in accordance with GAAP, together with (i)
a certificate of the chief financial officer of ESM stating that, to the
best of its knowledge, no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrowers have taken and propose to take
with respect thereto and (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by ESM in determining
compliance with the covenants contained in Sections 5.04(a) through (d).
(c) Annual Financials. As soon as available and in any event within
90 days after the end of each Fiscal Year, a copy of the annual audit
report for such year for Limited and its Subsidiaries, including therein
Consolidated and Consolidating balance sheets of Limited and its
Subsidiaries as of the end of such Fiscal Year and Consolidated and
Consolidating statements of income and a Consolidated statement of cash
flows of Limited and its Subsidiaries for such Fiscal Year, in each case
accompanied by an opinion reasonably acceptable to the Required Lenders of
Ernst & Young LLP or other independent public accountants of recognized
standing acceptable to the Required Lenders, together with (i) a
certificate of such accounting firm addressed to the Lender Parties
stating that in the course of the regular audit of the business of Limited
and its Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting
firm has obtained no knowledge that a Default has occurred and is
continuing, or if, in the opinion of such accounting firm, a Default has
occurred and is continuing, a statement as to the nature thereof, (ii) a
schedule in form satisfactory to the Administrative Agent of the
computations used by such accountants in determining, as of the end of
such Fiscal Year, compliance with the covenants contained in Sections
5.04(a) through (d) and (iii) a certificate of the chief financial officer
of ESM stating that no Default has occurred and is continuing or, if a
default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrowers have taken and propose to take
with respect thereto.
(d) Annual Forecasts. As soon as available and in any event no later
than 15 days before the end of each Fiscal Year, forecasts prepared by
management of the Borrowers, in form satisfactory to the Administrative
Agent, of Consolidated balance sheets, income statements and cash flow
statements on a quarterly basis for the Fiscal Year following such Fiscal
Year then ended and on an annual basis for each Fiscal Year thereafter
until 2001, together with a certificate of a Responsible Officer of ESM
stating that such forecasts were prepared in good faith on the basis of
assumptions which were believed to be reasonable at the time made in light
of the conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrowers' best estimate of
their future financial performance.
(e) Litigation. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of
its Subsidiaries of the type described in Section 4.01(i).
(f) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports
that any Loan Party or any of its Subsidiaries sends to its stockholders,
and copies of all regular, periodic and special reports, and all
registration statements, that any Loan Party or any of its Subsidiaries
files with the Securities and Exchange Commission or any governmental
authority that may be substituted therefor, or with any national
securities exchange.
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(g) Agreement Notices. Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any of
its Subsidiaries under or pursuant to any Related Document or indenture,
loan or credit or similar agreement regarding or related to any breach or
default by any party thereto or any other event that could materially
impair the value of the interests or the rights of any Loan Party or
otherwise have a Material Adverse Effect and copies of any amendment,
modification or waiver of any provision of any Related Document or
indenture, loan or credit or similar agreement and, from time to time upon
request by the Administrative Agent, such information and reports
regarding the Related Documents as the Administrative Agent may reasonably
request.
(h) Revenue Agent Reports. Within 10 days after receipt, copies of
all Revenue Agent Reports (Internal Revenue Service Form 886), or other
written proposals of the Internal Revenue Service, that propose, determine
or otherwise set forth positive adjustments to the Federal income tax
liability of the affiliated group (within the meaning of Section
1504(a)(1) of the Internal Revenue Code) of which any Borrower is a member
aggregating $3,000,000 or more.
(i) Tax Certificates. Promptly, and in any event within five
Business Days after the due date (with extensions) for filing the final
Federal income tax return in respect of each taxable year, a certificate
(a "Tax Certificate"), signed by the President or the chief financial
officer of ESM, stating that each of Amdocs Inc. and Sypress, Inc. has
paid to the Internal Revenue Service or other taxing authority, or to such
Borrower, the full amount that such affiliated group is required to pay in
respect of Federal income tax for such year and that the Borrowers and
their Subsidiaries have received any amounts payable to them, and have not
paid amounts in respect of taxes (Federal, state, local or foreign) in
excess of the amount they are required to pay, under the Tax Agreements in
respect of such taxable year.
(j) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
any Lender Party (through the Administrative Agent) may from time to time
reasonably request in connection with its Commitment or Advances
hereunder.
SECTION 5.04. Financial Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the following financial covenants shall be
observed:
(a) Interest Coverage Ratio. Limited shall have maintained at the
end of each fiscal quarter of Limited ending on or after September 30,
1998 a ratio of Consolidated EBITDA of Limited and its Subsidiaries to
Annualized Interest Expense of not less than 3.50:1.00.
(b) Leverage Ratio. Limited shall have maintained at the end of each
fiscal quarter of Limited ending on or after September 30, 1998 a Leverage
Ratio of not more than 2.50:1.00.
(c) Fixed Charge Coverage Ratio. Limited shall have maintained at
the end of each fiscal quarter of Limited ending on or after September 30,
1998 a ratio of (i) Consolidated EBITDA of Limited and its Subsidiaries
minus Capital Expenditures of Limited and its Subsidiaries to the sum of
(i) Annualized Interest Expense plus (ii) Scheduled Principal Payments of
Limited and its Subsidiaries plus (iii) Cash Taxes payable by Limited and
its Subsidiaries of, in the case of the fiscal quarter ended September 30,
1998, 1.75:1.00 and, in the case of each fiscal quarter ended on or after
December 31, 1998, not less than 2.00:1.00.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) any Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) any Borrower shall fail
to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause
(ii) within three Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made; or
(c) any Borrower shall fail to perform or observe any term, covenant
or agreement contained in ▇▇▇▇▇▇▇ ▇.▇▇, ▇.▇▇(▇), (▇), (▇), (▇) or (l),
5.02 or 5.03; or
(d) any Loan Party shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 10 Business Days
after the earlier of the date on which (A) a Responsible Officer of any
Loan Party becomes aware of such failure or (B) written notice thereof
shall have been given to such Loan Party by the Administrative Agent or
any Lender Party; or (e) any Loan Party, Amdocs (Israel) or any of their
respective Subsidiaries shall fail to pay any principal of or premium or
interest on any Debt that is outstanding in a principal or notional amount
of at least $10,000,000 either individually or in the aggregate (but
excluding Debt outstanding hereunder) of such Loan Party, Amdocs (Israel)
or such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall not have
been waived and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of such Debt or otherwise to cause, or to permit the holder thereof to
cause, such Debt to mature; or any such Debt shall be declared to be due
and payable or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party, Amdocs (Israel) or any of their respective
Subsidiaries shall generally not pay its debts as such debts become due,
or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Loan Party, Amdocs
(Israel) or any of their respective Subsidiaries seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period
of 60 days or any of
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the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or any substantial
part of its property) shall occur; or any Loan Party, Amdocs (Israel) or
any of their respective Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any Loan Party, Amdocs (Israel) or
any of their respective Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment
or order or (ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect and such judgment or
order remains unsatisfied; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party, Amdocs (Israel) or any of their respective Subsidiaries that
is reasonably likely to have a Material Adverse Effect, and there shall be
any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01, 5.01(k) or 5.01(l) shall for any reason cease to
be valid and binding on or enforceable against any Loan Party party to it,
or any such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to
Section 3.01, 5.01(k) or 5.01(l) shall for any reason (other than pursuant
to the terms thereof) cease to create a valid and perfected first priority
lien on and security interest in the Collateral purported to be covered
thereby (other than Collateral which is de minimus in value), to the
extent required by, and subject to exceptions permitted in the Loan
Documents; or
(k) the Consolidated financial condition or results of operations of
Limited and its Subsidiaries shall fail to be in compliance with any
financial covenant contained in Section 5.04; or
(l) (i) during any period of up to 24 consecutive months, commencing
after the date of this Agreement, individuals (or their designees or other
individuals appointed by the same designating party) who at the beginning
of such 24-month period were directors of Limited (together with any new
directors whose election to the board of directors of Limited or whose
nomination for election by the shareholders of Limited was approved by a
vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination
for election was previously so approved) shall cease for any reason to
constitute a majority of the board of directors of Limited; or (ii) any
Person or two or more Persons acting in concert other than the Equity
Investors or SBC International Inc. shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the
management or policies of Limited; or (iii) any Equity Investor shall
create or suffer to exist any Lien on Voting Stock of Limited that
effectively transfers the voting power thereof to a third party; or (iv)
Limited shall create or suffer to exist any Lien on the Voting Stock of
ESM; or (v) any Person or two or more Persons acting in concert (other
than the Equity Investors, SBC International Inc. or ▇▇▇▇▇▇ ▇▇▇▇) shall
have acquired beneficial ownership (within the meaning of Rule 14-d-3 of
the Securities and Exchange Commission under the Securities Exchange Act
of 1934), directly or indirectly, of Voting Stock of Limited (or
securities convertible into such Voting Stock) representing 20% or more of
the combined voting power of all Voting Stock of Limited; or
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(m) any Loan Party or any ERISA Affiliate shall have any
Multiemployer Plan or Multiple Employer Plan; or
(n) Limited shall conduct or engage in any business or activities
other than those incidental to holding, or shall cease to own directly or
indirectly 100% of, the capital stock of the Borrowers or Amdocs (Israel);
or
(o) Amdocs (Israel) shall have failed to observe any provision
contained in Article V of this Agreement to the same extent as if Amdocs
(Israel) were a Borrower hereunder;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the obligation of each Appropriate Lender to make Advances (other than
Letter of Credit Advances by the Issuing Bank or a Lender pursuant to Section
2.03(c) and Swing Line Advances by a Lender pursuant to Section 2.02(b)) and of
the Issuing Bank to issue Letters of Credit to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the Notes,
all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrowers; provided, however, that
in the event of an actual or deemed entry of an order for relief with respect to
any Loan Party under the Federal Bankruptcy Code, (x) the obligation of each
Lender to make Advances (other than Letter of Credit Advances by the Issuing
Bank or a Lender pursuant to Section 2.03(c) and Swing Line Advances by a Lender
pursuant to Section 2.02(b)) and of the Issuing Bank to issue Letters of Credit
shall automatically be terminated and (y) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrowers.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon each Borrower to, and forthwith upon such
demand such Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit requested by such
Borrower then outstanding. If at any time the Administrative Agent determines
that any funds held in the L/C Cash Collateral Account are subject to any right
or claim of any Person other than the Administrative Agent and the Lender
Parties or that the total amount of such funds is less than the aggregate
Available Amount of all Letters of Credit, the applicable Borrower will,
forthwith upon demand by the Administrative Agent, pay to the Administrative
Agent, as additional funds to be deposited and held in the L/C Cash Collateral
Account, an amount equal to the excess of (a) such aggregate Available Amount
over (b) the total amount of funds, if any, then held in the L/C Cash Collateral
Account that the Administrative Agent determines to be free and clear of any
such right and claim.
ARTICLE VII
ESM GUARANTY
SECTION 7.01. Guaranty. ESM hereby unconditionally and irrevocably
guarantees the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all obligations of each other Loan Party organized
under the laws of a jurisdiction outside of the United States now or hereafter
existing
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under any Loan Document, whether for principal, interest, fees, expenses or
otherwise (such obligations, to the extent not paid by such Loan Party, being
the "Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Administrative Agent or
the Lenders in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, ESM's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to the Administrative Agent or any Lender Party under any Loan
Document but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
any such Loan Party.
SECTION 7.02. Guaranty Absolute. ESM guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or the Lender Parties with respect thereto. The obligations
of ESM under this Article VII are independent of the Guaranteed Obligations, and
a separate action or actions may be brought and prosecuted against ESM to
enforce this Article VII, irrespective of whether any action is brought against
any other Loan Party or whether any such Loan Party is joined in any such action
or actions. The liability of ESM under this Article VII shall be irrevocable,
absolute and unconditional irrespective of, and ESM hereby irrevocably waives
any defenses it may now or hereafter have in any way relating to, any or all of
the following:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any other Loan Party
or otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of any other Loan Party; or
(e) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Administrative Agent or any Lender Party that might
otherwise constitute a defense available to, or a discharge of, ESM, any
other Loan Party or any other guarantor or surety.
This Article VII shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Administrative Agent or any
Lender Party upon the insolvency, bankruptcy or reorganization of any Loan Party
or otherwise, all as though such payment had not been made.
SECTION 7.03. Waiver. ESM hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Article VII and any requirement that the Administrative
Agent or any Lender Party exhaust any right or take any action against any other
Loan Party or any other Person or any Collateral. ESM acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated herein and that the waiver set forth in this Section 7.03 is
knowingly made in contemplation of such benefits. ESM hereby waives any right to
revoke this Article VII, and acknowledges that
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this Article VII is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
SECTION 7.04. Continuing Guaranty; Assignments. This Article VII is
a continuing guaranty and shall (a) remain in full force and effect until the
later of the cash payment in full of the Guaranteed Obligations and all other
amounts payable under this Article VII and the Termination Date, (b) be binding
upon ESM, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Lender Parties, the Administrative Agent and their
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Lender Party may assign or otherwise transfer all or
any portion of its rights and obligations hereunder (including, without
limitation, all or any portion of its Commitments, the Advances owing to it and
the Note or Notes held by it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such
Lender Party herein or otherwise, in each case as provided in Section 9.07.
SECTION 7.05. Subrogation. ESM will not exercise any rights that it
may now or hereafter acquire against any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
ESM's obligations under this Agreement, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Administrative Agent or
any Lender Party against a Loan Party or any other insider guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from a Loan Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security solely on account of such claim, remedy or right, unless and
until all of the Guaranteed Obligations and all other amounts payable under this
Article VII shall have been paid in full in cash and the Termination Date shall
have occurred. If any amount shall be paid to ESM in violation of the preceding
sentence at any time prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Article VII and
the Termination Date, such amount shall be held in trust for the benefit of the
Administrative Agent and the Lender Parties and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations
and all other amounts payable under this Article VII, whether matured or
unmatured, in accordance with the terms of this Agreement, or to be held as
collateral for any Guaranteed Obligations or other amounts payable under this
Article VII thereafter arising. If (i) ESM shall make payment to the
Administrative Agent or any Lender Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Article VII shall be paid in full in cash and (iii) the
Termination Date shall have occurred, the Administrative Agent and the Lender
Parties will, at ESM's request and expense, execute and deliver to ESM
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to ESM of an interest in the
Guaranteed Obligations resulting from such payment by ESM.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable), the Issuing Bank
(if applicable) and a potential Hedge Bank) hereby irrevocably appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. The Administrative Agent, its Affiliates and its or its
Affiliates directors, officers, agents and employees shall not have any duties
or responsibilities except that those expressly set forth in this Agreement and
shall not be
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a trustee or fiduciary for any Lender Party. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement, any Loan Document or applicable law or unless the
Administrative Agent shall first be indemnified to its satisfaction by the
Lender Parties against any and all liability and expense which may be incurred
by the Administrative Agent by reason of taking any such action. Each Lender
Party (in its capacities as a Lender, the Swing Line Bank (if applicable), the
Issuing Bank (if applicable) and a potential Hedge Bank) hereby agrees that the
Agents other than the Administrative Agent shall have no duties under this
Agreement or applicable law. The Administrative Agent agrees to give to each
Lender Party prompt notice of each notice given to it by the Borrowers pursuant
to the terms of this Agreement.
SECTION 8.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent, its Affiliates nor any of its or its Affiliates'
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Administrative Agent:
(a) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assumption Agreement entered into
by an Assuming Lender as provided in Section 2.16 or an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(b) may consult with and rely on legal counsel (including counsel for any Loan
Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender Party and shall not be
responsible to any Lender Party for any recitals, statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents or any certificate or other document referred to or provided for in,
or received by any of them under, any Loan Document; (d) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of any Loan Document on the part of any Loan
Party or to inspect the property (including the books and records) of any Loan
Party; (e) shall not be responsible to any Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; (f) shall not be required to
initiate or conduct any litigation or collection proceedings under any Loan
Document; (g) shall be entitled to rely upon any certification, notice,
instrument, writing or other communication (including, without limitation, any
thereof by telephone or telecopy) believed by it to be genuine and correct and
to have been signed, sent or made by or on behalf of the proper Person or
Persons; and (h) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, telecopy or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 8.03. NationsBank and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, NationsBank
shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as though it were not the Administrative
Agent; and the term "Lender Party" or "Lender Parties" shall, unless otherwise
expressly indicated, include NationsBank in its individual capacity. NationsBank
(and any successor acting as Administrative Agent) and its affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from, accept fees and other consideration from
and generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if NationsBank were not the
Administrative Agent and without any duty to account therefor to the Lender
Parties.
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SECTION 8.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement and the Loan Documents. Each Lender Party also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the Loan Documents. Except
for notices, reports and other documents and information expressly required to
be furnished to the Lender Parties by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender Party with any credit or other information concerning the affairs,
financial condition or business of any Loan Party or any of its Subsidiaries or
Affiliates that may come into the possession of the Administrative Agent or any
of its Affiliates.
SECTION 8.05. Indemnification. (a) Each Lender Party severally
agrees to indemnify the Administrative Agent (to the extent not promptly
reimbursed by the Borrowers) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative Agent
under the Loan Documents (including any of the foregoing arising from the
negligence of the Administrative Agent); provided, however, that no Lender Party
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 gross negligence or willful misconduct
or breach of its obligations set forth in this Agreement. Without limitation of
the foregoing, each Lender Party agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any costs and expenses (including,
without limitation, fees and expenses of counsel) payable by the Borrowers under
Section 9.04, to the extent that the Administrative Agent is not promptly
reimbursed for such costs and expenses by the Borrowers. For purposes of this
Section 8.05(a), the Lender Parties' respective ratable shares of any amount
shall be determined, at any time, according to the sum of (a) the aggregate
principal amount of the Advances outstanding at such time and owing to the
respective Lender Parties, (b) their respective Pro Rata Shares of the aggregate
Available Amount of all Letters of Credit outstanding at such and (c) their
respective Unused Revolving Credit Commitments at such time; provided that the
aggregate principal amount of Swing Line Advances owing to the Swing Line Bank
and of Letter of Credit Advances owing to the Issuing Bank shall be considered
to be owed to the Revolving Credit Lenders ratably in accordance with their
respective Revolving Credit Commitments. In the event that any Defaulted Advance
shall be owing by any Defaulting Lender at any time, such Lender Party's
Commitment with respect to the Facility under which such Defaulted Advance was
required to have been made shall be considered to be unused for purposes of this
Section 8.05(a) to the extent of the amount of such Defaulted Advance. The
failure of any Lender Party to reimburse the Administrative Agent promptly upon
demand for its ratable share of any amount required to be paid by the Lender
Party to the Administrative Agent as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse the Administrative Agent
for its ratable share of such amount, but no Lender Party shall be responsible
for the failure of any other Lender Party to reimburse the Administrative Agent
for such other Lender Party's ratable share of such amount. Without prejudice to
the survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each Lender Party contained in this Section 8.05(a) shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrowers) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or
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omitted by the Issuing Bank under the Loan Documents; provided, however, that no
Lender Party shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Issuing Bank's gross negligence or willful
misconduct or breach of its obligations set forth in this Agreement. Without
limitation of the foregoing, each Lender Party agrees to reimburse the Issuing
Bank promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, fees and expenses of counsel) payable by the
Borrowers under Section 9.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by such Borrowers. For purposes
of this Section 8.05(b), the Lender Parties' respective ratable shares of any
amount shall be determined, at any time, according to the sum of (a) the
aggregate principal amount of the Advances outstanding at such time and owing to
the respective Lender Parties, (b) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding at such time
plus (c) their respective Unused Revolving Credit Commitments at such time;
provided that the aggregate principal amount of Swing Line Advances owing to the
Swing Line Bank and of Letter of Credit Advances owing to the Issuing Bank shall
be considered to be owed to the Lenders ratably in accordance with their
respective Revolving Credit Commitments. In the event that any Defaulted Advance
shall be owing by any Defaulting Lender at any time, such Lender Party's
Commitment with respect to the Facility under which such Defaulted Advance was
required to have been made shall be considered to be unused for purposes of this
Section 8.05(b) to the extent of the amount of such Defaulted Advance. The
failure of any Lender Party to reimburse the Issuing Bank promptly upon demand
for its ratable share of any amount required to be paid by the Lender Parties to
the Issuing Bank as provided herein shall not relieve any other Lender Party of
its obligation hereunder to reimburse the Issuing Bank for its ratable share of
such amount, but no Lender Party shall be responsible for the failure of any
other Lender Party to reimburse the Issuing Bank for such other Lender Party's
ratable share of such amount. Without prejudice to the survival of any other
agreement of any Lender Party hereunder, the agreement and obligations of each
Lender Party contained in this Section 8.05(b) shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under the
other Loan Documents.
SECTION 8.06. Successor Administrative Agent. The Administrative
Agent may resign as to any or all of the Facilities at any time by giving
written notice thereof to the Lender Parties and the Borrowers and may be
removed as to all of the Facilities at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent as to such of
the Facilities as to which the Administrative Agent has resigned or been
removed. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lender Parties, appoint a
successor Administrative Agent, which successor Administrative Agent shall be a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent as to all of the Facilities and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to less than all of the Facilities and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent as to such Facilities, other than with respect to
funds transfers and other similar aspects of the administration of
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Borrowings under such Facilities, issuances of Letters of Credit
(notwithstanding any resignation as Administrative Agent with respect to the
Letter of Credit Facility) and payments by the Borrowers in respect of such
Facilities, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement as to such Facilities, other than as
aforesaid. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent as to all of the Facilities, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent as to any Facilities under
this Agreement.
SECTION 8.07. Defaults. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received written notice from a Lender Party or a
Borrower specifying such Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a Notice of
Default, the Administrative Agent shall give prompt notice thereof to the Lender
Parties. The Administrative Agent shall (subject to Article VI) take such action
with respect to such Default as shall reasonably be directed by the Required
Lenders; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lender
Parties.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by any Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other than any Lender Party that is, at such time, a Defaulting Lender), do any
of the following at any time: (i) waive any of the conditions specified in
Section 3.01 or, in the case of the Initial Extension of Credit, Section 3.02,
(ii) change the number of Lenders or the percentage of (x) the Commitments, (y)
the aggregate unpaid principal amount of the Advances or (z) the aggregate
Available Amount of outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (iii)
reduce or limit the obligations of the Guarantor under Section 1 of the Guaranty
or otherwise limit the Guarantor's liability with respect to the Obligations
owing to the Administrative Agent and the Lender Parties, (iv) release all or
substantially all of the Collateral in any transaction or series of related
transactions or permit the creation, incurrence, assumption or existence of any
Lien on all or substantially all of the Collateral in any transaction or series
of related transactions to secure any Obligations other than Obligations owing
to the Secured Parties under the Loan Documents, (v) amend this Section 9.01, or
(vi) limit the liability of any Loan Party under any of the Loan Documents and
(b) no amendment, waiver or consent shall, unless in writing and signed by the
Required Lenders and each Lender that is affected by such amendment, waiver or
consent, (i) increase the Commitments of such Lender or subject such Lender to
any additional obligations, (ii) reduce the principal of, or interest on,
Advances payable to such Lender or any fees or other amounts payable hereunder
to such Lender, (iii) postpone any date fixed for any payment of principal of,
or interest on, the Advances payable to such Lender or any fees or other amounts
payable hereunder to such Lender or (iv) change the order of application of any
prepayment set forth in Section 2.06 in any manner that materially affects such
Lender; provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Bank or the Issuing Bank, as the case may
be, in addition to the Lenders required above to take such action, affect the
rights or obligations of the Swing Line Bank or of the Issuing Bank, as the case
may be, under this Agreement; and provided further that no amendment, waiver or
consent shall, unless in writing and
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signed by the Administrative Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Administrative Agent under
this Agreement.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to ESM, at its address at Sarnia Management Corporation Limited, ▇.▇. ▇▇▇
▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇ House, Bordage, St. ▇▇▇▇▇ Port, Guernsey, Channel
Islands GY13QT, Attention ▇▇▇▇ ▇▇▇▇▇; if to Amdocs UK, at its address at Taylor,
Joynson, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, ▇▇, Attention: Diarnuid Cumming; if to Amdocs Inc., at its address at ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇'▇▇▇▇▇; if to CADET, at its address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇; if to Amdocs USA, at its
address at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; if to any Initial Lender or the Initial Issuing
Bank, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender Party, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender Party; and
if to the Administrative Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇; or, as to the Borrowers or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to ESM and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telecopied or telexed, be effective when deposited in the mails,
delivered to the telegraph company, transmitted by telecopier or confirmed by
telex answerback, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VII shall not be effective
until received by the Administrative Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrowers jointly and
severally agree to pay on demand (i) all reasonable costs and expenses of the
Administrative Agent and the Arrangers in connection with the preparation,
execution, delivery, administration, modification and amendment of the Loan
Documents (including, without limitation, (A) all reasonable due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses and (B) the reasonable fees and expenses of counsel for the
Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the
Administrative Agent and the Lender Parties in connection with the enforcement
of the Loan Documents, whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent and each Lender Party with respect
thereto).
(b) Each Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an
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"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(i) the Facilities, the actual or proposed use of the proceeds of the Advances
or the Letters of Credit, the Loan Documents or any of the transactions
contemplated thereby, including, without limitation, any acquisition or proposed
acquisition (including, without limitation, the transactions contemplated
hereby) by the Equity Investors or any of their Subsidiaries or Affiliates of
all or any portion of the stock or substantially all the assets of Limited or
any of its Subsidiaries or (ii) the actual or alleged presence of Hazardous
Materials on any property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct or breach of the obligations of such Indemnified Party set
forth in this Agreement. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated.
The Borrowers also agree not to assert any claim against the Administrative
Agent, any Lender Party or any of their Affiliates, or any of their respective
officers, directors, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Loan Documents or any of
the transactions contemplated thereby.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by any Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, such Borrower shall, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrowers contained in Sections 2.10 and 2.12 and this
Section 9.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) other than
payroll accounts maintained in the ordinary course of business at any time held
and other indebtedness at any time owing by such Lender Party or such Affiliate
to or for
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the credit or the account of any Borrower against any and all of the Obligations
of such Borrower now or hereafter existing under this Agreement and the Note or
Notes (if any) held by such Lender Party, irrespective of whether such Lender
Party shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Lender Party agrees promptly to
notify the applicable Borrower after any such set-off and application; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender Party and its respective
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender Party
and its respective Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrowers and the Administrative Agent
and when the Administrative Agent shall have been notified by each Initial
Lender and the Initial Issuing Bank that such Initial Lender and the Initial
Issuing Bank has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrowers, the Administrative Agent and each Lender Party and
their respective successors and assigns, except that no Borrower shall have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of one or more Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) no
such assignments shall be permitted without the consent of the Administrative
Agent until the Administrative Agent shall have notified the Lender Parties that
syndication of the Commitments hereunder has been completed, (v) each of the
Administrative Agent and, so long as no Default has occurred and is continuing,
ESM has consented to such assignment (which consent shall not be unreasonably
withheld or delayed, and such approval shall be deemed given by ESM if no
objection is received by the assigning Lender and the Administrative Agent
within two Business Days after notice of such proposed assignment is delivered
to ESM) and (vi) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as
the case may be, hereunder and (y) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution,
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legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other Loan
Document or any other instrument or document furnished pursuant hereto or
thereto; (ii) such assigning Lender Party makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrowers or any other Loan Party or the performance or observance by any Loan
Party of any of its obligations under any Loan Document or any other instrument
or document furnished pursuant thereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Loan Documents as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrowers, shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent and the Lender Parties shall treat each
Person whose name is recorded in the Register as a Lender Party hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by any Borrower or any Lender Party at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to ESM.
In the case of any assignment by a Lender, within five Business Days after its
receipt of such notice, each Borrower, at its own expense, shall execute and
deliver to the Administrative Agent in exchange for the surrendered Note or
Notes a new Note to the order of such Eligible Assignee in an amount equal to
the Commitment assumed by it under a Facility pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder
under such Facility, a new Note to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A hereto.
(f) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
be to an Eligible Assignee, (ii) each of the Administrative Agent and, so long
as no Default has occurred and is continuing, ESM has consented to such
assignment (which consent shall not be unreasonably withheld or delayed, and
such approval shall be deemed given by ESM if no objection is received by the
Issuing Bank and the Administrative Agent from ESM within two Business Days
after notice of such proposed assignment is delivered to ESM) and (iii) the
parties to each such assignment shall execute and deliver to the Administrative
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Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) the amount
of the Commitment or Advances being participated shall in no event be less than
$5,000,000, (ii) such Lender Party's obligations under this Agreement
(including, without limitation, its Commitments) shall remain unchanged as if it
had not sold such participation, (iii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iv) such Lender Party shall remain the holder of any such Note for all purposes
of this Agreement, (v) the Borrowers, the Administrative Agent and the other
Lender Parties shall continue to deal solely and directly with such Lender Party
in connection with such Lender Party's rights and obligations under this
Agreement and (vi) no participant under any such participation shall have any
right under any Loan Document, including without limitation the right to require
such Lender Party to take or to omit to take any action hereunder or approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce or postpone the date fixed for any payment of the
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder (except any reductions specified in this Agreement), in each case to
the extent subject to such participation, or release all or substantially all of
the Collateral. Except in the case of the sale of a participating interest to
another Lender Party, the relevant participation agreement shall prohibit the
participant from transferring, pledging, assigning, selling participations in,
or otherwise encumbering its portion of such Lender Party's obligations
hereunder.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Lender
Party by or on behalf of the Borrowers; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party by executing a confidentiality agreement
in the form of Exhibit K hereto with such Lender Party. Such Lender Party shall
notify the Borrowers in writing of the identity of any assignee or proposed
assignee, and, upon request, such Lender Party shall provide any Borrower with a
copy of such executed confidentiality agreement.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. Execution in Counterparts. This Agreement and each
other Loan Document may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement or any other Loan Document (other than the
Notes) by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement or such other Loan document, as the case may be.
SECTION 9.09. No Liability of the Issuing Bank. Each Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents
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should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by the Issuing Bank against presentation of documents that
do not comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit;
or (d) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that such Borrower shall have a claim against
the Issuing Bank, and the Issuing Bank shall be liable to such Borrower, to the
extent of any direct, but not consequential, damages suffered by such Borrower
that such Borrower proves were caused by (i) the Issuing Bank's willful
misconduct or gross negligence in determining whether documents presented under
any Letter of Credit comply with the terms of the Letter of Credit or (ii) the
Issuing Bank's willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying with
the terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 9.10. Confidentiality. Neither the Administrative Agent nor
any Lender Party shall disclose any Confidential Information to any Person
without the consent of ESM, other than (a) to the Administrative Agent's or such
Lender Party's Affiliates and their officers, directors, employees, agents and
advisors and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking and then
only to such authority or examiner or the authority to which such examiner
reports.
SECTION 9.11. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, the Notes, or any of the Loan Documents to which it is a party, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. The Borrowers
hereby agree that service of process in any such action or proceeding brought in
any such New York State court or in such federal court may be made upon CT
Corporation System at its offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Process Agent"), and hereby further
agrees that any failure of the Process Agent to give any notice of any such
service to any Borrower shall not impair or affect the validity of such service
or of any judgment rendered in any action or proceeding based thereon. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement, the Notes or any other Loan Document in
the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement, the Notes or
any of the Loan Documents to which it is a party in any New York State or
federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) To the extent that any Borrower has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to
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judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, such Borrower hereby irrevocably waives such immunity
in respect of its obligations under this Agreement and the other Loan Documents.
SECTION 9.13. Judgment. (a) Rate of Exchange. If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or under any other Loan Document in another currency into U.S. dollars, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which, in accordance with normal
banking procedures, the Administrative Agent could purchase such other currency
with U.S. dollars in New York City, New York, at the close of business on the
Business Day immediately preceding the day on which final judgment is given,
together with any premiums and costs of exchange payable in connection with such
purchase.
(b) Currency Indemnity. The obligation of the Borrowers in respect
of any sum due from it to the Administrative Agent or any Lender hereunder or
under any other Loan Document shall, notwithstanding any judgment in a currency
other than U.S. dollars, be discharged only to the extent that on the Business
Day next succeeding receipt by the Administrative Agent or such Lender of any
sum adjudged to be so due in such other currency, the Administrative Agent or
such Lender, as the case may be, may, in accordance with normal banking
procedures, purchase U.S. dollars with such other currency. If the U.S. dollars
so purchased are less than the sum originally due to the Administrative Agent or
such Lender in U.S. dollars, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or such
Lender against such loss, and if the U.S. dollars so purchased exceed the sum
originally due to the Administrative Agent or any Lender in U.S. dollars, the
Administrative Agent or such Lender agrees to remit to such Borrower such
excess.
77
SECTION 9.14. Waiver of Jury Trial. Each of the Borrowers, the
Administrative Agent and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances or the actions of the Administrative Agent or any Lender
Party in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWERS
EUROPEAN SOFTWARE MARKETING LTD.
By __________________________________
Title:
By __________________________________
Title:
AMDOCS (U.K.) LTD.
By __________________________________
Title:
AMDOCS, INC.
By __________________________________
Title:
CANADIAN DIRECTORY TECHNOLOGY LTD.
By __________________________________
Title:
AMDOCS (USA), INC.
By __________________________________
Title:
78
ADMINISTRATIVE AGENT
NATIONSBANK, N.A., as Administrative Agent
By __________________________________
Title:
INITIAL LENDERS
NATIONSBANK, N.A.
By __________________________________
Title:
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By __________________________________
Title:
80
THE INDUSTRIAL BANK OF JAPAN, LTD.
By __________________________________
Title:
81
FLEET BANK, N.A.
By __________________________________
Title:
82
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
-------------------------------------------------------------------------------------------------------------
NAME OF INITIAL LENDER Revolving Letter of Domestic Eurodollar
Credit Credit Lending Lending
Commitment Commitment Office Office
-------------------------------------------------------------------------------------------------------------
NationsBank, N.A. $25,000,000 $3,333,333.34 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
The Bank of Nova $25,000,000 $3,333,333.33 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Scotia ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
The Industrial Bank of $25,000,000 $3,333,333.33 New York Branch New York Branch
Japan, Ltd. 1251 Avenue of the ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ 10020-1104
-------------------------------------------------------------------------------------------------------------
Fleet Bank, N.A. $15,000,000 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop MA0FD07A Mail Stop MA0FD07A
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
83
EXHIBIT A
REVOLVING CREDIT
PROMISSORY NOTE
Up to $_______________ Dated: June __, 1998
FOR VALUE RECEIVED, the undersigned, ________________________,
_________________________, a __________ corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of _________________________ (the "Lender") for the
account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below) the aggregate principal amount of the Revolving Credit
Advances (as defined below) owing to the Lender by the Borrower pursuant to the
Credit Agreement dated as of June __, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"; terms defined
therein being used herein as therein defined) among the Borrower, certain other
Borrowers party thereto, the Lender and certain other lender parties party
thereto, and NationsBank, N.A., as Administrative Agent for the Lender and such
other lender parties, on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to NationsBank, N.A., as Administrative Agent, at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Revolving Credit
Advance owing to the Lender by the Borrower and the maturity thereof, and all
payments made on account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached hereto, which
is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of advances (the "Revolving
Credit Advances") by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the US dollar amount
first above mentioned, the indebtedness of the Borrower resulting from each such
Revolving Credit Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
The obligations of the Borrower under this Promissory Note, and the obligations
of the other Loan Parties under the Loan Documents, are secured by the
Collateral as and to the extent provided in the Loan Documents.
[NAME OF BORROWER]
By ________________________________
Title:
[By ________________________________
Title: ]
84
EXHIBIT B
TO THE CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING
NationsBank, N.A.,
as Administrative Agent
under the Credit Agreement
referred to below
____________________
____________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Credit
Agreement dated as of June 29, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the undersigned, certain other
Borrowers party thereto, certain Lender Parties party thereto, and NationsBank,
N.A., as Administrative Agent for said Lender Parties, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is _________
__, 199_.
(ii) The Facility under which the Proposed Borrowing is
requested is the _______________ Facility.
(iii) The Type of Advances comprising the Proposed Borrowing
is [Base Rate Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is
$__________.
[(v) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is __________ month[s].]
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 set forth in Section
4.01 (a) through (f), (i), (j), (w) and (x) of the Credit Agreement are
correct in all material respects on and as of the date of the Proposed
Borrowing, before and after giving effect to the Proposed Borrowing and
to the application of the proceeds therefrom, as though made on and as
of such date (other than any such representations and warranties that,
by their terms, are made as of a date other than the date of the
Proposed Borrowing); and
85
B-2
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By ________________________________
Title:
[By _______________________________
Title: ]
86
EXHIBIT C
TO THE CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of June 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among European Software Marketing Ltd. and certain other
Borrowers (as defined in the Credit Agreement), the Lender Parties (as defined
in the Credit Agreement), and NationsBank, N.A., as administrative agent for the
Lender Parties (the "Administrative Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Credit Agreement Facility or
Facilities specified on Schedule 1 hereto. After giving effect to such sale and
assignment, the Assignee's Commitments and the amount of the Advances owing to
the Assignee will be as set forth on Schedule 1 hereto.
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 claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, the
Loan 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 any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; and (iv)
attaches the Note or Notes held by the Assignor and requests that the
Administrative Agent exchange such Note or Notes for a new Note or Notes payable
to the order of the Assignee in an amount equal to the Commitments assumed by
the Assignee pursuant hereto or new Notes payable to the order of the Assignee
in an amount equal to the Commitments assumed by the Assignee pursuant hereto
and the Assignor in an amount equal to the Commitments retained by the Assignor
under the Credit Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof 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 Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor or any other Lender
Party 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) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender Party; and (vi) attaches any US Internal Revenue
Service forms required under Section 2.12 of the Credit Agreement.
87
C-2
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender Party thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
88
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
As to the _____Facility in respect of which an interest is being assigned:
Percentage interest assigned: __________%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Advances assigned: $__________
Principal amount of Note payable to Assignee: $__________
Principal amount of Note payable to Assignor: $__________
Effective Date (if other than date of acceptance by Administrative Agent):
(1)________ __, 199_
[NAME OF ASSIGNOR], as Assignor
By ________________________________
Title:
Dated: _________ __, 199_
[NAME OF ASSIGNEE], as Assignee
By ________________________________
Title:
Dated: _________ __, 199_
Domestic Lending Office:
Eurodollar Lending Office:
----------
(1) This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Administrative Agent.
89
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
As to the Facility in respect of which an interest is being assigned:
Percentage interest assigned: %
Assignee's Commitment: $
Aggregate outstanding principal amount of Advances assigned: $
Principal amount of Note payable to Assignee: $
Principal amount of Note payable to Assignor: $
Effective Date (if other than date of acceptance by Administrative Agent):
(1) , 199
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: , 199
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: , 199
Domestic Lending Office:
Eurodollar Lending Office:
-----------------
(1) This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Administrative Agent.
90
Accepted and Approved this
day of , 199
NATIONSBANK, N.A.
By
Title:
Approved this day
of , 199
EUROPEAN SOFTWARE MARKETING LTD.
By
Title:
By
Title:
91
EXHIBIT D
FORM OF SECURITY AGREEMENT SUPPLEMENT
July 8, 1998
NationsBank, N.A. as
Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Honey
Security Agreement dated January 6, 1998
among the Grantors named therein and
NationsBank of Texas, N.A. now known as NationsBank, N.A.
as Administrative Agent
Ladies and Gentlemen:
Reference is made to the above-captioned Security Agreement(as amended,
supplemented or otherwise modified, the "Security Agreement"). Unless otherwise
defined herein, terms defined in the Security Agreement are used herein as
therein defined.
Each of the undersigned hereby agrees, as of the date first above written,
to become a Grantor under the Security Agreement as if it were an original party
thereto and agrees that each reference in the Security Agreement to a "Grantor"
shall also mean and be a reference to each of the undersigned.
Each of the undersigned hereby assigns and pledges to the Administrative
Agent for its benefit and the ratable benefit of the Secured Parties and hereby
grants to the Administrative Agent for its benefit and the ratable benefit of
the Secured Parties as collateral for the Secured Obligations a pledge and
assignment of, and a security interest in, all of the right, title and interest
of the undersigned in and to its Collateral, whether now owned or hereafter
acquired, subject to all of the terms and provisions of the Security Agreement,
as if such Collateral of the undersigned had been subject to the Security
Agreement on the date of its original execution.
Each of the undersigned has attached hereto supplements to Schedules I
through V to the Security Agreement, and each of the undersigned hereby
certifies that such
92
supplements have been prepared by the undersigned in substantially the form of
the Schedules to the Security Agreement and are accurate and complete as of the
date first above written.
Each of the undersigned hereby makes each representation and warranty set
forth in Section 9 of the Security Agreement as to itself and as to its
Collateral to the same extent as each other Grantor and hereby agrees to be
bound as a Grantor by all of the terms and provisions of the Security Agreement
to the same extent as all other Grantors.
This letter shall be governed by and construed in accordance with the laws
of the State of New York.
Very truly yours,
AMDOCS (USA), INC.
By ___________________________________
Name:
Title:
Address:
93
EXHIBIT E
EUROPEAN SOFTWARE MARKETING LIMITED
- AS CHARGOR-
- AND -
NATIONSBANK, N.A.
(FORMERLY KNOWN AS
NATIONSBANK OF TEXAS, N.A.)
- AS TRUSTEE -
----------
FORM OF DEED OF AMENDMENT
----------
SHEARMAN & STERLING
LONDON
94
THIS DEED OF AMENDMENT is made the 6th July, 1998
BETWEEN:
(1) EUROPEAN SOFTWARE MARKETING LIMITED (THE "CHARGOR"); AND
(2) NATIONSBANK, N.A. (FORMERLY KNOWN AS NATIONSBANK OF TEXAS, N.A.) (THE
"TRUSTEE").
WHEREAS:
(1) The Chargor and the Trustee have entered into a share charge dated
January 6 1998 (the "DEED OF CHARGE OVER SHARES") under which certain
shares were charged as security pursuant to a credit agreement dated
December 5 1997 (as from time to time amended, the "CREDIT AGREEMENT")
made between the Chargor (1), Amdocs (U.K.) Limited (2), Amdocs, Inc.
(3), Canadian Directory Technology Limited (4), the banks listed
therein (5), the initial issuing bank as defined therein (6), the
swingline bank as defined therein (7), NationsBank of Texas, N.A. (8),
The Bank of Nova Scotia (9) and The Industrial Bank of Japan, Limited
(10).
(2) The parties hereto have agreed that the Deed of Charge over Shares
shall be amended in accordance with the provisions set out below.
NOW IT IS HEREBY AGREED as follows:
1. Words or expressions defined in the Deed of Charge over Shares or, as
appropriate, the Credit Agreement shall, unless the context otherwise
requires, bear the same meaning or construction in this Deed.
2. The Deed of Charge over Shares shall be amended as follows:
(a) in the second line of recital A the words "from time to time" shall be
inserted after the word "amended";
(b) by insertion of the following definition of "Loan Parties" in Part 1:
""LOAN PARTIES" has the meaning given to it in the Credit Agreement;"
(c) in the definition of "Secured Obligations" by deleting the word
"Chargor" and replacing it with the words "Loan Parties owed to the Lender
Parties"; and.
(d) in the Schedule (Details of Investments):
95
(i) the figure "L100,000" in the second column shall be deleted
and replaced by the figure "L65,000"; and
(ii) the figure "100,000.00" in the third column shall be deleted
and replaced by the figure "65,000.00".
3. The Chargor acknowledges and agrees that failure to perform and comply
with the obligation expressed to be assumed by it pursuant to paragraph 4 shall
constitute a Default under the Credit Agreement.
4. The Chargor shall, from time to time on demand of the Trustee,
reimburse the Trustee for all costs and expenses (including legal fees) together
with any VAT thereon reasonably incurred by it in connection with the
negotiation, preparation and execution of this Deed and the completion of the
transactions herein contemplated.
5. The Chargor represents to the Trustee in the same terms mutatis
mutandis as are set out in Part 4 of the Deed of Charge over Shares by reference
to the facts and circumstances as at the date hereof and as if reference therein
to "Deed of Charge over Shares" and any derivative terms were references to (a)
the Deed of Charge over Shares as the same shall be amended by this Deed and (b)
this Deed.
6. The Chargor and the Trustee hereby agree that the rights and
obligations of each of them under the Deed of Charge over Shares shall not be
affected or impaired by the execution, delivery and performance of this Deed
except in the manner and to the extent herein stated.
7. Save as varied and amended hereby the Deed of Charge over Shares and
every Clause thereof shall continue to be of full force and effect and binding
on the parties hereto.
8. The Trustee hereby agrees to the release of such of the shares charged
under the Deed of Charge over Shares as will result in the amended schedule (as
set out at 2(d) above) being correct.
9. This Deed may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which, when executed
and delivered, shall constitute an original, but all the counterparts shall
together constitute one and the same instrument.
10. This Deed shall be governed by and construed in accordance with English
law.
96
AS WITNESS the hands of the duly authorised representative of the parties hereto
the day and year first before written
THE CHARGOR
Executed as a deed by European Software Marketing )
Limited acting by the names of authorised signatories )
in the presence of:- )
Signature of witness:
Name of witness:
Address:
Occupation:
Address:
Telex No.:
Facsimile No.:
THE TRUSTEE
NationsBank, N.A.
Address:
Telex No:
Facsimile No:
97
EXHIBIT F
FORM OF CONSENT TO US LOAN PARTY GUARANTY
Dated as of July ___, 1998
The undersigned, each a Guarantor under the US Loan Party
Guaranty in favor of the Administrative Agent, for its benefit and the benefit
of the Lender Parties parties to the Credit Agreement dated as of December 5,
1997 as amended and restated by the Amended and Restated Credit Agreement (as
amended, supplemented or otherwise modified from time to time in accordance with
its terms, the "Amended and Restated Credit Agreement"; terms not otherwise
defined herein shall have the meaning herein as therein ascribed to them) among
European Marketing Software Ltd., a Guernsey company, Amdocs (U.K.) Ltd., a
corporation organized under the laws of England and Wales, Amdocs, Inc., a
Delaware corporation, Amdocs USA, Inc. a Delaware Corporation, and Canadian
Directory Technology Ltd., a Delaware corporation, as Borrowers, the Lender
Parties referred to therein, and NationsBank, N.A. (formerly known as
NationsBank of Texas, N.A.), as Administrative Agent, The Bank of Nova Scotia,
as syndication agent, and The Industrial Bank of Japan, Limited, as
documentation agent for the Lender Parties, hereby consent to such amendment and
restatement of the Existing Credit Agreement and hereby confirm and agree that
notwithstanding the effectiveness of such amendment and restatement, the US Loan
Party Guaranty shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects, except that, on and after the
effectiveness of the Amended and Restated Credit Agreement, each reference in
the US Loan Party Guaranty to the "Credit Agreement", "thereunder", "thereof" or
words of like import shall mean and be a reference to the Amended and Restated
Credit Agreement.
AMDOCS, INC.
By_________________________
Title:
98
SYPRESS, INC.
By_________________________
Title:
CANADIAN DIRECTORY
TECHNOLOGY, LTD.
By_________________________
Title:
AMDOCS SERVICES, INC.
By_________________________
Title:
99
EXHIBIT G
FORM OF CONSENT
TO NON-US LOAN PARTY GUARANTY
Dated as of July ___, 1998
The undersigned, each a Guarantor under the Non-US Loan Party
Guaranty in favor of the Administrative Agent, for its benefit and the benefit
of the Lender Parties parties to the Credit Agreement dated as of December 5,
1997 as amended and restated by the Amended and Restated Credit Agreement (as
amended, supplemented or otherwise modified from time to time in accordance with
its terms, the "Amended and Restated Credit Agreement"; terms not otherwise
defined herein shall have the meaning herein as therein ascribed to them) among
European Marketing Software Ltd., a Guernsey company, Amdocs (U.K.) Ltd., a
corporation organized under the laws of England and Wales, Amdocs, Inc., a
Delaware corporation, Amdocs USA, Inc. a Delaware Corporation, and Canadian
Directory Technology Ltd., a Delaware corporation, as Borrowers, the Lender
Parties referred to therein, and NationsBank, N.A. (formerly known as
NationsBank of Texas, N.A.), as Administrative Agent, The Bank of Nova Scotia,
as syndication agent, and The Industrial Bank of Japan, Limited, as
documentation agent for the Lender Parties, hereby consent to such amendment and
restatement of the Existing Credit Agreement and hereby confirm and agree that
notwithstanding the effectiveness of such amendment and restatement, the US Loan
Party Guaranty shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects, except that, on and after the
effectiveness of the Amended and Restated Credit Agreement, each reference in
the Non-US Loan Party Guaranty to the "Credit Agreement", "thereunder",
"thereof" or words of like import shall mean and be a reference to the Amended
and Restated Credit Agreement.
AMDOCS (U.K.) LIMITED
By_________________________
Title:
100
EUROPEAN SOFTWARE MARKETING
LIMITED
By_________________________
Title: