EXHIBIT 10.2
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THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Second Amendment")
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dated as of December 16, 1996, is among __________ (the "Borrower"), and
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CITIBANK, N.A., a national banking association (the "Bank").
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W I T N E S S E T H
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WHEREAS, the Borrower and the Bank entered into that certain Credit
Agreement dated as of December 16, 1994, as amended by the First Amendment to
Credit Agreement dated as of September 30, 1996 (the "Credit Agreement")
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pursuant to which the Bank agreed to made certain Advances to the Borrower; and
WHEREAS, the Borrower has requested and the Bank has agreed to amend
certain provisions of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Defined Terms. All capitalized terms which are defined in
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the Credit Agreement, but which are not defined in this Second Amendment, shall
have the same meanings as defined in the Credit Agreement. Unless otherwise
indicated, all section references in this Second Amendment refer to the Credit
Agreement.
Section 2. Amendments to the Credit Agreement.
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2.1 Section 1.01 is amended by deleting in its entirety the
definition of "Michaels".
2.2 Section 1.01 is amended by replacing in its entirety the
following definition:
"Termination Date" means January 31, 1998, or the earlier
date of termination in whole of the Commitment pursuant to
Section 2.05, Section 2.09 or Section 7.01.
2.3 Section 1.01 is amended by replacing in its entirety the
following definition:
"Note" means that certain Amended and Restated Promissory
Note of the Borrower payable to the order of the Bank,
dated as of December 16, 1996, evidencing the aggregate
indebtedness of the Borrower to the Bank resulting from the
Advances and delivered to the Bank pursuant
to Article III, as the same may be amended, extended,
renewed or otherwise modified from time to time.
2.4 Section 3.02 is restated in its entirety to read as follows:
v(c) That in no event shall the aggregate of all
advances made by the Bank to the Borrower:
i. exceed $4,260,000.00 where such
advances are made against
Collateral consisting of Sterling
stock; and
ii. exceed $4,260,000.00 where such
advances are made against
Collateral consisting of
Sterling Commerce stock.
2.5 Section 5.01(d)(ii) is restated in its entirety to read as follows:
"as soon as available and in any event within sixty (60) days after
the end of each fiscal quarter of Sterling and Sterling Commerce,
the 10-Q Report of Sterling and Sterling Commerce, respectively;"
2.6 Sections 5.02(b) is restated in its entirety to read as follows:
(b) Liquidity. Permit the current market value of the
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unpledged Cash and Cash Equivalents and/or Readily Marketable
Securities (excluding any securities issued by Sterling or Sterling
Commerce), but including interests in Maverick of the Borrower and
the Guarantor, collectively, to be less than fifteen percent (15%)
of the Commitment for a period of ten (10) consecutive Business
Days; provided, that it is expressly contemplated that within such
period of ten (10) consecutive Business Days the Borrower shall
have the ability to increase such current market value of the
unpledged Cash and Cash Equivalents and/or Readily Marketable
Securities (excluding any securities issued by Sterling or Sterling
Commerce), but including interests in Maverick in accordance with
the provisions of subsection (ii) of Section 6.01.
2.7 Section 5.02(c) is deleted in its entirety.
2.8 Section 6.01(b) is restated in its entirety to read as follows:
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i. the value of the Sterling stock shall be excluded
for such period of time as the share price of
Sterling stock is below $10.00 per share; and
ii. the value of the Sterling Commerce stock shall be
excluded for such period of time as the share
price of Sterling Commerce stock is below $10.00
per share.
2.9 Section 7.01 is amended to add the following after subparagraph
(l):
"or (m) The Borrower fails to execute and deliver the following
documents, or complete the required actions:
(a) The Amended and Restated Promissory Note is duly executed
by the Borrower in the form of Exhibit A attached hereto;
(b) The Third Amendment to the Pledge Agreement is duly
executed by the Borrower; and
(c) All outstanding fees and expenses of the Bank."
Section 3. Representations and Warranties. The Borrower hereby affirms
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that as of the date of execution and delivery of this Second Amendment, except
as affected by the transactions contemplated in this Second Amendment, all of
the representations and warranties contained in the Credit Agreement are true
and correct in all material respects as though made on and as of the date hereof
and no Event of Default shall have occurred and be continuing.
Section 4. Effectiveness. Upon the execution hereof by the Borrower and the
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Bank, this Second Amendment shall be effective as of the date first written
above.
Section 5. Reference to and Effect on Credit Agreement.
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(a) On or after the date first written above, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import, and each reference to the Credit Agreement in any certificate
or other document or instrument delivered in connection therewith, shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement is and
shall continue to be in full force and effect and is hereby ratified and
confirmed.
Section 6. Cost, Expenses and Taxes. The Seller agrees to pay on demand all
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reasonable costs and expenses of the Bank in connection with the preparation,
execution and delivery of this Second Amendment and any other documents to be
delivered in connection
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herewith including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Bank with respect thereto.
Section 7. Counterparts. This Second Amendment may be executed by one or
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more of the parties hereto in any number of separate counterparts, and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 8. No Oral Agreement. THIS WRITTEN SECOND AMENDMENT AND THE OTHER
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DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
Section 9. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed effective as of the date first written above.
Borrower:
By:
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Witness: By:
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Name:
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Bank: CITIBANK, N.A.
By:
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Name:
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Title:
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