EXECUTION COPY
AMENDMENT AND RESTATEMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT AND RESTATEMENT NO. 3 TO CREDIT AGREEMENT (this "Amendment and
Restatement") dated as of December 23, 1997 among ▇▇▇▇▇▇▇▇▇ TECHNOLOGY
CORPORATION (the "Borrower"), the BANKS listed on the signature pages
hereof (the "Banks"), ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agent
(the "Agent"), and MELLON BANK, N.A., as Syndication Agent.
WITNESSETH:
WHEREAS, certain of the parties hereto have heretofore entered into a
Credit Agreement dated as of January 18, 1994, as amended and restated by the
Amended and Restated Credit Agreement dated as of February 21, 1997, and by
Amendment and Restatement No. 2 to Credit Agreement dated as of October 23, 1997
(as so amended, the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to increase the
aggregate amount of the Commitments of the Banks from $400,000,000 to
$500,000,000, to make the other amendments specified below and to restate the
Agreement in its entirety to read as set forth in the Agreement with the
amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions: References. Unless otherwise specifically defined
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herein, each term used herein which is defined in the Agreement shall have the
meaning assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall from and after the date hereof to the Agreement as amended
hereby.
SECTION 2. Amendment to Section 2.10(a)(i). Section 2.10(a)(i) of the
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Agreement is deleted and replaced with the following:
(a)(i) The aggregate Commitments shall be reduced to $200,000,000 on
the Commitment Reduction Date, such reduction to be applied to the Commitments
of the Banks so that after such reduction the Commitments of the Banks will be
as set forth below:
▇▇▇▇▇▇ Guaranty Trust Company
of New York $60,000,000
Mellon Bank, N.A. $55,000,000
CoreStates Bank, N.A. $45,000,000
PNC Bank, National Association $40,000,000
SECTION 3. Change in Commitments: Borrowings between Amendment Effective
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Time and Last Day of Continuing Interest Period. (a) With effect from and
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including the date this Amendment and Restatement becomes effective in
accordance with Section 6 hereof (the "Amendment Effective Time"), the
Commitment of each Bank shall be the amount set forth opposite the name of such
Bank on the signature pages hereof. The Borrowing of Committed Loans
outstanding immediately prior to the Amendment Effective Time shall continue to
be due and payable on the last day of the Interest Period applicable to such
Borrowing (the "Continuing Interest Period End Date"), and shall be repaid in
accordance with the Commitments in effect immediately prior to the Amendment
Effective Time.
(b) Any Committed Borrowing made after the Amendment Effective Time and
before the Continuing Interest Period End Date shall be made in accordance with
the Commitments of the Banks as in effect immediately after the Amendment
Effective Time, provided that to the extent that any such Borrowing would
otherwise require any Bank to make a Committed Loan such that the aggregate
principal amount of all such Committed Loans of such Bank outstanding at such
time would exceed the amount of such Bank's Commitment, then ▇▇▇▇▇▇ Guaranty
Trust Company of New York agrees, on the terms and conditions set forth in the
Agreement (including without limitation Section 3.02(c)) but without regard to
the requirements that Committed Loans be made ratably in proportion to the
respective Commitments of all Banks, to make a Base Rate Loan as a separate
Committed Borrowing with a principal amount equal to the aggregate amount of
such excess for all such Banks, with an Interest Period ending on the
Continuing Interest Period End Date; and provided further that the aggregate
principal amount of all Loans made by ▇▇▇▇▇▇ Guaranty Trust Company of New York
at any time outstanding shall not exceed its Commitment.
SECTION 4. Representations and Warranties. The Borrower hereby represents
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and warrants that as of the date hereof and after giving effect hereto:
(a) no Default has occurred and is continuing; and
(b) each representation and warranty of the Borrower set forth in the
Agreement after giving effect to this Amendment and Restatement is true and
correct as though made on and as of such date.
SECTION 5. Governing Law. This Amendment and Restatement shall be
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governed by and construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts Effectiveness. This Amendment and Restatement may
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be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment and Restatement shall become effective as of the
date hereof when the Agent shall have received:
(a) duly executed counterparts hereof signed by the Borrower and the Banks
(or, in the case of any party as to which an executed counterpart shall not have
been received, the Agent shall have received telegraphic, telex or other
written confirmation from such party of execution of a counterpart hereof by
such party);
(b) an opinion of General Counsel or Associate General Counsel of the
Borrower (or such other counsel for the Borrower as may be acceptable to the
Agent) substantially in the form of Exhibit E to the Agreement with reference to
this Amendment and Restatement and the Agreement as amended and restated hereby;
and
(c) all documents it may reasonably request relating to the existence of
the Borrower, the corporate authority for and the validity of this Agreement,
and any other matters relevant hereto, all in form and substance satisfactory
to the Agent.
provided that this Amendment and Restatement shall not become effective or
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binding on any party hereto unless all of the foregoing conditions are satisfied
not later than January 15, 1998. The Agent shall promptly notify the Borrower
and the Banks of the date of such effectiveness, and such notice shall be
conclusive and binding on all parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed as of the date first above written.
▇▇▇▇▇▇▇▇▇ TECHNOLOGY CORPORATION
By s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Commitments
$150,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
$145,000,000 MELLON BANK, N.A.
By s/▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
$125,000,000 CORESTATES BANK, N.A.
By s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
$80,000,000 PNC BANK, NATIONAL ASSOCIATION
By s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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$500,000,000 Total Commitments
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ TECHNOLOGY CORPORATION
Assistant Secretary's Certificate
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The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, does hereby certify that he is the
duly elected, qualified and acting Assistant Secretary of ▇▇▇▇▇▇▇▇▇ TECHNOLOGY
CORPORATION, a Delaware corporation (the "Company"), and further that:
1. Attached hereto as Exhibit A is a true and correct copy of the
Bylaws of the Company as last amended on December 5, 1996. The same is in full
force and effect and has not been further amended as of the date hereof and no
such amendment has been authorized by the Company, the Board of Directors
("Board") or the Company's officers, and
2. Set forth below is a true, correct and complete copy of a
resolution duly adopted by written consent of the Board on December 11, 1997,
with respect to the borrowing authority of the officers of the Company.
RESOLVED, that the Board of Directors hereby
authorizes an increase from $450,000,000 to
$550,000,000 in the individual authority of
the Chairman of the Board, President and
Chief Executive Officer or the Senior Vice
President - Finance and Chief Financial
Officer or the Treasurer of this Corporation
to borrow money on a long or short-term basis
in such forms, subject to such terms,
conditions and interest rate or rates as they
may deem proper, from duly constituted
commercial banks or other financial sources
serving the Corporation, and through the use
of commercial paper, (said amount excluding
debt amounts separately authorized by the
Board before or after the effective date of
this resolution) and to sign and execute any
and all agreements and other instruments and
to perform any and all acts necessary or
required to consummate such borrowing or
borrowing or to amend, renew or extend any
existing borrowings; and
FURTHER RESOLVED, that the aforesaid officers
of the Corporation are hereby authorized, on
behalf of the Corporation and in its name, to
take such further action as any of them may
deem necessary or desirable in order to carry
out the intent of the foregoing resolution.
3. The Company has not borrowed or entered into agreements under
which it is entitled to borrow more than $450,000,000 (including the Credit
Agreement dated as of January 18, 1994, as amended and restated through
October 23, 1997) of such aggregate principal amount prior to the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this certificate
this 23d day of December, 1997.
s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Associate General Counsel
and Assistant Secretary
▇▇▇▇▇▇▇▇▇ TECHNOLOGY CORPORATION
Incumbency Certificate
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The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, does hereby certify that he is
the duly appointed, qualified and acting Associate General Counsel and
Assistant Secretary of ▇▇▇▇▇▇▇▇▇ TECHNOLOGY CORPORATION, a Delaware corpora-
tion (the "Company"), and the following persons are now and have been at all
times since July 1, 1997, duly elected or appointed, as the case may be,
qualified and acting officers of the Company, holding the office set forth
opposite their names and that the signature set forth opposite each of their
names is the genuine signature of such person:
Name Office Signature
---- ------ ---------
▇▇▇▇ ▇. ▇▇▇▇▇ Vice President
General Counsel
and Secretary s/▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Treasurer s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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IN WITNESS WHEREOF, the undersigned has executed this certificate and
affixed the seal of the Company this 23d day of December, 1997.
s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Associate General Counsel
and Assistant Secretary
[CORPORATE SEAL]
The undersigned, ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and
Secretary of the Company, does hereby certify that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ is the
duly appointed, qualified and acting Associate General Counsel and Assistant
Secretary of the Company and that the signature set forth immediately above is
his genuine signatures.
IN WITNESS WHEREOF, the undersigned has hereunto signed his name this
23d day of December, 1997.
s/▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
Vice President,
General Counsel
and Secretary
