EXHIBIT 10.19
SECOND AMENDMENT AND MODIFICATION AGREEMENT
SECOND AMENDMENT AND MODIFICATION AGREEMENT dated as of November 20, 1996
(this "Amendment") by and among STERLING SOFTWARE, INC., a Delaware corporation
(the "Company"); the direct and indirect subsidiaries of the Company listed on
the signature pages hereto (collectively, the "Sterling Subsidiaries"); THE
FIRST NATIONAL BANK OF BOSTON, BANK ONE, TEXAS, NATIONAL ASSOCIATION, and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (collectively, the "Banks");
and THE FIRST NATIONAL BANK OF BOSTON, as Agent (the "Agent") for the Banks,
amending certain provisions of the Second Amended and Restated Revolving Credit
and Term Loan Agreement dated as of August 24, 1995 (as heretofore amended, the
"Agreement") among the Company, the Banks and the Agent and the other Loan
Documents (as defined in the Agreement). Terms not otherwise defined herein
which are defined in the Agreement shall have the respective meanings assigned
to such terms in the Agreement.
WHEREAS, the Company has requested that the Agent and the Banks amend
certain provisions of the Agreement;
WHEREAS, upon the terms and subject to the conditions contained herein, the
Agent and the Banks are willing to amend such provisions of the Credit
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained in the
Agreement, the other Loan Documents and this Amendment and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
(S)1. Amendment of (S)9.9 of the Agreement. Section 9.9(e) of the
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Agreement is hereby deleted in its entirety, and the following new subsection
(e) is hereby substituted in lieu thereof:
"(e) Sales of Sterling Accounts Receivable pursuant to the Sterling
Accounts Receivable Agreements (i) with respect to sales of such Sterling
Accounts Receivable pursuant to or in connection with which the Company or
any of its Subsidiaries incurs Indebtedness, in an aggregate amount
outstanding at any time not to exceed $35,000,000, and (ii) with respect to
all other sales of any Sterling Accounts Receivable, in an aggregate amount
outstanding at any time not to exceed $75,000,000;"
(S)2. Amendment of (S)10.2 of the Agreement. Section 10.2 of the
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Agreement is hereby amended by deleting the period (".") at the end thereof and
substituting in lieu thereof the following text:
"; provided, however, that for purposes of calculating the ratio of
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Operating Cash Flow to Interest Charges for the fiscal quarter of the
Company ending September 30, 1996, cash taxes paid by the Company during
such fiscal
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quarter in an amount not to exceed $43,500,000 shall not be deducted from
the calculation of Operating Cash Flow."
(S)3. Replacement of Schedules 1.3, 1.6, 5.2 and 5.6 to the Agreement.
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Schedules 1.3, 1.6, 5.2, and 5.6 to the Agreement are hereby deleted in their
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entirety, and Schedules 1.3, 1.6, 5.2, and 5.6 attached hereto are respectively
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substituted in lieu thereof.
(S)4. Conditions To Effectiveness. This Amendment shall be deemed to be
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effective as of September 30, 1996 (the "Effective Date") upon the Agent's
receipt on or before November 20, 1996, of facsimile copies of original
counterparts (to be followed promptly by original counterparts) or original
counterparts of this Amendment, duly executed by each of the Company, the
Sterling Subsidiaries, the Agent and the Banks.
(S)5. Representations and Warranties; No Default; Authorization. Each of
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the Company and the Sterling Subsidiaries hereby represents and warrants to each
of the Agent and the Banks as follows:
(a) Each of the representations and warranties of the Company and
the Sterling Subsidiaries contained in the Agreement, the other Loan
Documents or in any document or instrument delivered pursuant to or in
connection with the Agreement, the other Loan Documents or this Amendment
was true as of the date as of which it was made, and no Default or Event of
Default has occurred and is continuing as of the date of this Amendment;
and
(b) This Amendment has been duly authorized, executed and delivered
by the Company and each of the Sterling Subsidiaries, and shall be in full
force and effect upon the satisfaction of the conditions set forth in (S)4
hereof, and the agreements of the Company and each of the Sterling
Subsidiaries, contained herein, in the Agreement, as herein or heretofore
amended, or in the other Loan Documents, as heretofore amended,
respectively constitute the legal, valid and binding obligations of the
Company and each of the Sterling Subsidiaries, party hereto or thereto,
enforceable against the Company or such Sterling Subsidiary, in accordance
with their respective terms; and
(c) Sterling Software (United States of America), Inc. has
previously been merged into the Company, with the Company as the surviving
entity, and accordingly is no longer a guarantor under the Guaranty or a
Sterling Subsidiary.
(S)6. Ratification, Etc. Except as expressly amended hereby, the
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Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. All references in the Agreement or
such other Loan Documents or in any related agreement or instrument to the
Agreement or such other Loan Documents shall hereafter refer to such agreements
as amended hereby, pursuant to the provisions of the Agreement.
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(S)7. No Implied Waiver, Etc. Except as expressly provided herein,
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nothing contained herein shall constitute a waiver of, impair or otherwise
affect any of the Obligations, any other obligations of the Company or any of
the Sterling Subsidiaries or any right of the Agent or the Banks consequent
thereon. The waivers and consents provided herein are limited strictly to their
terms. Neither the Agent nor any of the Banks shall have any obligation to
issue any further waiver or consent with respect to the subject matter hereof or
any other matter.
(S)8. Counterparts. This Amendment may be executed in one or more
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counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
(S)9. Governing Law. THIS AMENDMENT SHALL FOR ALL PURPOSES BE GOVERNED BY
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AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CHOICE OR CONFLICTS OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as a
document under seal as of the date first above written.
THE FIRST NATIONAL BANK
OF BOSTON, individually
and as Agent
By:
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Title:
BANK ONE, TEXAS, NATIONAL
ASSOCIATION
By:
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Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By:
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Title:
STERLING SOFTWARE, INC.
By:
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Title:
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Each of the undersigned hereby acknowledges the foregoing Amendment as of the
Effective Date and agrees that its obligations under the Guaranty will extend to
the Agreement, as so amended, and the other Loan Documents, as so amended.
STERLING SOFTWARE (U.S.), INC.
By:
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Title:
STERLING SOFTWARE
(SOUTHERN), INC.
By:
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Title:
STERLING SOFTWARE
(U.S.A.), INC.
By:
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Title:
STERLING SOFTWARE
INTERNATIONAL, INC.
By:
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Title:
STERLING SOFTWARE LEASING
COMPANY
By:
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Title:
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STERLING SOFTWARE (U.S. OF
AMERICA), INC.
By:
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Title:
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Schedule 1.3 to the Agreement
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Non-Guarantor Subsidiaries
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State of
Company Incorporation Chief Executive Office
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Sterling Software (Midwest), Inc. Delaware Ohio
Southwest Beta Services Delaware Texas
Sterling ZeroOne, Inc. Delaware California
ZeroOne Systems, Inc. Delaware Texas
Systems Center, Inc. Wyoming Texas
Data Management Information Delaware Virginia
NetMaster, Inc. Delaware Virginia
Matesys Corporation California Texas
IWK Corporation Delaware Texas
Sterling Software International
(Australia) Limited Delaware Texas
Sterling Software (Eastern), Inc. Delaware Texas
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Schedule 1.6 to the Agreement
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Sterling Subsidiaries
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State of Location of Chief
Company Incorporation Executive Office
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Sterling Software (U.S.), Inc. Delaware Xxxxxxxx
Xxxxxxxx Software (Southern), Inc. Georgia Xxxxxxx
Xxxxxxxx Software International, Inc. Delaware Texas
Sterling Software Leasing Company Delaware Texas
Sterling Software (U.S. of America), Delaware Virginia
Inc.
Sterling Software (U.S.A.), Inc. California California
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Schedule 5.2 to the Agreement
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Subsidiaries of the Sterling Companies
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Domestic Subsidiaries
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1. Owned by the Company.
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Authorized Issued
Subsidiary Capital (Class) Shares
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Sterling Software 50,000 (Common) 1,000
(Midwest), Inc.
Sterling Software (U.S.), 1,000 (Common) 1,000
Inc.
Systems Center, Inc. 1,000 (Common) 1,000
(Wyoming)
Sterling Software 50,000 (Common) 1,000
International, Inc.
Sterling Software Leasing 10,000 (Common) 1,000
Company
Sterling ZeroOne, Inc. 50,000 (Common) 1,000
Sterling Software 25,000 (Common) 995
(U.S.A.), Inc.
ZeroOne Systems, Inc. 50,000 (Common) 1,000
Sterling Software 10,000 (Common) 1,000
(Southern), Inc.
1,000 (Preferred) 0
Sterling Software 1,000 (Common) 0
(Southwest), Inc.
Southwest Beta Services, 1,000 (Common) 1,000
Inc.
Sterling Software (U.S. of 5,000 (Common) 1,000
America), Inc.
Sterling Software 10,000 (Common) 1,000
(Eastern), Inc. 1,000 (Preferred) 0
Sterling Software 50,000 (Common) 1,000
International
(Australia) Limited
2. Owned by Sterling Software (Southern), Inc.
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Authorized Issued
Subsidiary Capital (Class) Shares
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IWK Corporation 1,000 (Common) 0
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3. Owned by Matesys Mathematics Systems, S.A.
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Authorized Issued
Subsidiary Capital (Class) Shares
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Matesys Corp. 1,000,000 65,000
4. Foreign Subsidiaries*
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Place of
Incorporation
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Sterling Software (Pacific) Pty Limited Australia
Sterling Software (Australia) Pty Limited Australia
Systems Center Pty Limited Australia
Systems Center Handelgesellschaft M.B.H. Austria
KnowledgeWare G.M.B.H. Austria
Sterling Software (Benelux) NV Belgium
Sterling Software (Benelux) BVBA Belgium
Systems Center BVBA Belgium
Sterling Software do Brasil Ltda.** Brazil
Sterling Software do Brasil Participacoes Ltda. Brazil
Sterling Software (Canada), Inc. Canada
Sterling International Finance, Inc. British W. Indies
Sterling Software Denmark (Branch Office of Denmark
Sterling Software, Sweden AB)
KnowledgeWare AB, filial i Finland (Branch Office of Finland
Sterling Software AB)
Matesys Mathematics Systems S.A. France
Sterling Software France II France
Sterling Software International (France) SARL France
Sterling Software (France) SA France
VM Software SARL France
Sterling Software GMBH Germany
* All such subsidiaries are directly or indirectly 100% owned by Sterling
Software, Inc., except for certain de minimis shares held by employees or
local residents as nominee shareholders or as otherwise provided below.
** 49% ownership by Sterling Software do Brasil Participacoes Ltda.
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Systems Center Limited Hong Kong
KnowledgeWare (Far East) Limited Hong Kong
Sterling Software (Israel), Ltd. Israel
KnowledgeWare SRL Italy
Sterling Software (Italia) SRL Italy
Sterling Software (Japan) Ltd. Japan
Sterling Software (Netherlands) B.V. Netherlands
SCI Systems Center Netherlands/
Sterling Software (Netherlands) (Branch of Netherlands
Sterling Software (Benelux) NV)
Sterling Software (Australia) PTY Limited New Zealand
(New Zealand Branch)
Sterling Software (New Zealand) Limited New Zealand
Sterling Software (Scandinavia) AS Norway
Systems Center AS Norway
KnowledgeWare (Norway) Norway
Condessa Gestao E Investimentos Lda Portugal
Sterling Software (Portugal) - Informatica, Lda Portugal
Sterling Software (Singapore) PTE Ltd. Singapore
Sterling Aplicaciones Informaticas (Espana), S.A. Spain
KnowledgeWare AB Sweden
Sterling Software AB Sweden
Sterling Software (Switzerland) AG Switzerland
Sterling Software International (U.K.) Limited United Kingdom
Sterling Software (U.K.) Holdings, Ltd. United Kingdom
Sterling Software (U.K.) Limited United Kingdom
Sterling Software (U.K.) II Limited United Kingdom
VM Software (UK) Limited United Kingdom
Systems Center Limited United Kingdom
Sterling Software (Virgin Islands), Inc. Virgin Islands
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Schedule 5.6 to the Agreement
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Mailing Addresses of the Company and each of the Sterling Subsidiaries
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Sterling Software, Inc.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Sterling Software (U.S.), Inc.
0000 Xxxxxx Xxxx., Xxxxx 000
XxXxxx, Xxxxxxxx 00000-0000
Sterling Software (Southern), Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Sterling Software International, Inc.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Sterling Software Leasing Company
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Sterling Software (U.S. of America), Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Sterling Software (U.S.A.), Inc.
00000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
