Exhibit 99(d)(4)
THIRD AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER
(this "AMENDMENT"), dated as
of July 24, 2001, by and among
DATA RESEARCH ASSOCIATES,
INC., a Missouri corporation
(the "COMPANY"), SIRSI
HOLDINGS CORP., a Delaware
corporation ("PARENT") and
MCGUIRE ACQUISITION INC., a
Delaware corporation
("PURCHASER").
WHEREAS, the Company, Parent and Purchaser (collectively, the
"PARTIES") are parties to the Agreement and Plan of Merger, dated as of May 16,
2001, as amended as of June 27, 2001 and July 13, 2001 (the "AGREEMENT").
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Agreement;
WHEREAS, the aggregate value of the Shares to be acquired by
the Purchaser pursuant to the Offer shall be less than $50,000,000 and as a
result thereof, the Parties have determined that the Merger shall not meet the
$50,000,000 size of transaction test that would otherwise require the parties to
file notification of the Transactions pursuant to the HSR Act;
WHEREAS, the Financing Letter has been delivered to Parent and
the Company is satisfied with the terms and conditions thereof as required by
the definition of "Financing Letters" set forth in Section 1.1 of the Agreement
(without giving effect to this Amendment);
WHEREAS, the Company has taken all required actions to ensure
that outstanding Company Stock Options shall not be exercised by the holders
thereof prior to the Effective Time;
WHEREAS, contemporaneously with and subject to the
consummation of the Offer and acceptance by Purchaser for payment of Shares
tendered pursuant to the Offer, the Company has agreed to lend to Purchaser an
amount of up to $18.7 million less the amount of the Transaction Expenses;
WHEREAS, pursuant to Section 9.2 of the Agreement, the
Agreement may not be amended except by the prior written agreement of each of
the Parties; and
WHEREAS, the Parties have agreed to amend the Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. FINANCING LETTER AMENDMENTS.
(a) Each party hereto expressly acknowledges that the terms and
conditions of the Financing Letter are satisfactory to such party as required by
the definition of "Financing Letters" set forth in Section 1.1 of the Agreement
(without giving effect to this Amendment).
(b) Article I of the Agreement is hereby amended by deleting the
definition of "Financing Letters" in its entirety and replacing it by the
following:
""FINANCING LETTER" means the letter, dated July 24, 2001,
delivered to Sirsi Corporation by BNP Paribas, a copy which is attached hereto
as EXHIBIT E, pursuant to which BNP Paribas has expressed a commitment to
provide debt financing to Sirsi Corporation that, together with loans and equity
contributions to be provided to Parent by Parent's shareholders, is sufficient
(i) for Purchaser to consummate the Transactions, (ii) for the refinancing of
the Indebtedness under the Sirsi Credit Agreement and (iii) to pay the
Transaction Expenses."
(c) The Agreement is hereby amended by deleting each reference to
"Financing Letters" and replacing each such reference with "Financing Letter".
SECTION 2. HSR AMENDMENTS. As of the date hereof, the Agreement is hereby
amended as follows:
(a) Section 6.3(a) of the Agreement shall be deleted in its entirety
and shall be replaced be the following:
"(a) Prior to the Closing, upon the terms and subject to the conditions
set forth of this Agreement, Parent, Purchaser and the Company agree to use
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or advisable (subject
to any Applicable Laws) to consummate the Offer and the Merger and make
effective the Merger and the other Transactions as promptly as practicable,
including (i) the preparation and filing of all forms, registrations and notices
required to be filed to consummate the Offer, the Merger and the other
Transactions and the taking of such actions as are necessary to obtain any
requisite approvals, consents, Orders, exemptions or waivers by any third party
or Governmental Entity and (ii) the satisfaction of the other parties'
conditions to Closing. The Company shall reasonably cooperate in Purchaser's
efforts to obtain debt financing that is sufficient to consummate the
Transactions. In addition, no party hereto shall take any action after the date
of this Agreement to materially delay the obtaining of, or result in not
obtaining, any permission, approval or consent from any Governmental Entity
necessary to be obtained prior to Closing."
(b) Section 6.3(c) of the Agreement shall be deleted in its entirety
and shall be replaced by the following:
"(c) [Intentionally Omitted]"
(c) Section 7.4 of the Agreement shall be deleted in its entirety and
shall be replaced by the following:
"SECTION 7.4 GOVERNMENTAL APPROVAL.
Any governmental or regulatory notices, approvals or other requirements
necessary to consummate the Transactions and to operate the Business after the
Effective Time in all material
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respects as it was operated prior thereto shall have been given, obtained or
complied with, as applicable."
(d) The first paragraph of Appendix A of the Agreement shall be deleted
in its entirety and shall be replaced by the following:
"Notwithstanding any other provisions of the Offer, and in addition to
(and not in limitation of) Purchaser's rights to extend and amend the Offer at
any time in its sole discretion (subject to the provisions of the Agreement),
Purchaser shall not be required to accept for payment or, subject to any
applicable rules and regulations of the SEC, including Rule 14e-1(c) under the
Exchange Act (relating to Purchaser's obligation to pay for or return tendered
Shares promptly after termination or withdrawal of the Offer), pay for, and may
delay the acceptance for payment of or, subject to the restriction referred to
above, the payment for, any tendered Shares, and may terminate or amend the
Offer as to any Shares not then paid for, if (i) the Minimum Condition has not
been satisfied, or (ii) at any time on or after the date of the Agreement and
before the Expiration Date (as then extended), any of the following events shall
occur or shall be determined by Purchaser to have occurred:"
(e) Section (b) of Appendix A of the Agreement shall be deleted in its
entirety and shall be replaced by the following:
"(b) there shall be any Applicable Law or Order enacted, entered,
enforced, promulgated or deemed applicable to the Offer or the Merger, or any
other action shall be taken by any Governmental Entity that is reasonably likely
to result, directly or indirectly, in any of the consequences referred to in
clauses (i) through (v) of paragraph (a) above;"
SECTION 3. COMPANY STOCK OPTIONS AND WARRANTS AMENDMENT. The Agreement is
hereby amended by adding a new Section 4.33 which shall read as follows:
"4.33 COMPANY STOCK OPTIONS AND WARRANTS.
Except as set forth in SECTION 4.33 OF THE COMPANY DISCLOSURE SCHEDULE,
the Company has obtained valid and binding agreements from each holder of
Company Stock Options and Warrants that are exercisable at any time up to the
Effective Time. Such agreements provide that the each such holder of Company
Stock Options or Warrants, as the case may be, will not exercise any Company
Stock Option or Warrant, as the case may be, held by it until the later of (a)
the Effective Time and (b) the termination of this Agreement."
SECTION 4. SUBORDINATED LOAN AMENDMENT. Article VI of the Agreement is
hereby amended by adding a new Section 6.16 which shall read as follows:
"SECTION 6.16 SUBORDINATED LOAN.
Upon consummation of the Offer and acceptance by Purchaser for payment
of Shares tendered pursuant to the Offer (without giving effect to any
Subsequent Offering Period), the Company shall lend to Parent an amount of up
to $18.7 million less the amount of the Transaction
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Expenses subject to the terms and conditions set forth in the subordinated
promissory note set forth in EXHIBIT F hereto."
SECTION 5. NO OTHER AMENDMENTS. Except as expressly provided in this
Amendment, each of the terms and provisions of the Agreement shall remain in
full force and effect in accordance with their terms. The amendments set forth
herein are limited precisely as written and shall not be deemed to be an
amendment or waiver to any other term or condition of the Agreement or any of
the documents referred to therein. Whenever the Agreement is referred to herein
in any other agreements, documents and instruments, such reference shall be to
the Agreement as amended hereby.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each Party
hereby represents and warrants: (i) the execution, delivery and performance of
this Amendment is within its corporate power, has been duly authorized by all
necessary action and is not in contravention of any of its organizational
documents; (ii) this Amendment has been duly executed and delivered by such
Party; and (iii) this Amendment constitutes the legal, valid and binding
obligation of such Party, enforceable against such Party in accordance with its
terms.
SECTION 7. FURTHER ASSURANCES. Each Party shall duly execute and deliver,
or cause to be duly executed and delivered, such further instruments and
documents and to take all such actions, in each case as may be necessary or
proper to carry out the provisions and purposes of this Amendment.
SECTION 8. NOTICES. All notices or other communications pursuant to this
Amendment shall be in writing and shall be deemed to be sufficient if delivered
to those individuals and in the manner specified in Section 9.4 of the
Agreement.
SECTION 9. COUNTERPARTS AND FACSIMILE EXECUTION; EFFECTIVENESS. This
Amendment may be executed in two or more counterparts, all of which shall be
considered one and the same and shall become effective when one or more
counterparts have been signed by each of the parties and delivered (by facsimile
or otherwise) to the other party, it being understood that all parties need not
sign the same counterpart. Any counterpart or other signature hereupon delivered
by facsimile shall be deemed for all purposes as constituting good and valid
execution and delivery of this Amendment by such party.
SECTION 10. GOVERNING LAW; WAIVER OF JURY TRIAL. All questions concerning
the construction, interpretation and validity of this Amendment shall be
governed by and construed and enforced in accordance with the domestic laws of
the State of Delaware without giving effect to any choice or conflict of law
provision or rule (whether in the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware. In furtherance of the foregoing, the internal law of the
State of Delaware will control the interpretation and construction of this
Amendment, even if under such jurisdiction's choice of law or conflict of law
analysis, the substantive law of some other jurisdiction would ordinarily or
necessarily apply.
* * * * *
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IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment as of the date first written above.
DATA RESEARCH ASSOCIATES, INC.
By /s/ Katharine W. Kilper
------------------------------------
Name: Katharine W. Kilper
Title: Vice President,
Chief Financial Officer
MCGUIRE ACQUISITION INC.
By /s/ Pat Sommers
------------------------------------
Name: Pat Sommers
Title: President,
Chief Executive Officer
SIRSI HOLDINGS CORP.
By /s/ Pat Sommers
------------------------------------
Name: Pat Sommers
Title: Vice President,
Chief Executive Officer
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EXHIBIT E
FINANCING LETTER
(incorporated by reference to exhibit (b),
Commitment Letter, to this Schedule TO)
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EXHIBIT F
SUBORDINATED PROMISSORY NOTE
[FORM OF NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE THEREWITH. THIS NOTE IS SUBJECT TO THE TRANSFER RESTRICTIONS SET
FORTH IN SECTION 2(D) HEREOF AND MAY NOT BE TRANSFERRED OTHER THAN IN ACCORDANCE
WITH THE TERMS THEREOF.
SIRSI HOLDINGS CORP.
[ ]% BRIDGE NOTE
$[ ].00 [ ], 2001
Capitalized terms used herein and not otherwise defined shall have
the respective meanings ascribed to such terms in the Agreement and Plan of
Merger dated as of May 16, 2001 by and among Data Research Associates, Inc., a
Missouri corporation (the "PAYEE"), McGuire Acquisition Inc., a Delaware
corporation and Sirsi Holdings Corp., a Delaware corporation, (the
"CORPORATION"), as amended on [ ], 2001, (the "MERGER AGREEMENT").
SECTION 1. GENERAL.
(a) The Corporation for value received, hereby promises to pay,
subject to the further provisions hereof, to the order of the Payee, at 1276
North Warson Road, St. Louis, Missouri, 63132, or such place as is designated in
writing by the Payee, the sum of __________ Dollars ($ _____) (the "Principal
Amount") together with interest thereon as hereinafter provided on the earlier
of (x) the Effective Time and (y) six months after the date hereof (such date
hereinafter referred to as the "MATURITY DATE").
(b) This Note shall accrue interest on the unpaid balance of the
Principal Amount outstanding from time to time, from and after the date hereof
until such Principal Amount is paid in full at the rate of [ ](1) per annum
("INTEREST"). Interest shall be payable on the Maturity Date. Interest shall be
computed on the basis of a 360-day year and paid for the actual number of days
outstanding.
(c) The Principal Amount and all accrued interest thereon shall be
payable in such coin or currency of the United States of America as the shall be
legal tender thereof for the payment of public and private debts.
SECTION 2. MISCELLANEOUS.
(a) If any amount payable hereunder shall be due on a Saturday or
Sunday or a day on which banks in New York, New York or Huntsville, Alabama are
authorized or required to
- -------------------
1 RATE TO BE FIXED AT THE INTEREST RATE PAYABLE UNDER THE CORPORATION'S BNP
PARIBAS CREDITY FACILITY AT CLOSING.
close (any other day being a "BUSINESS DAY"), such payment may be made on the
next succeeding Business Day.
(b) All notices required to be given under this Note shall be given
as provided for in Section 9.4 of the Merger Agreement.
(c) The Corporation agrees to pay all collection expenses, court
costs, and reasonable attorneys' fees and disbursements (whether or not
litigation is commenced) which may be incurred in connection with the collection
and enforcement of this Note.
(d) This Note may not be changed or terminated orally. This Note may
not be assigned or transferred by the Payee without the Corporation's prior
written consent. This Note shall be governed by, and construed in accordance
with the internal laws of the State of New York without reference to conflict of
laws principles.
(e) The Corporation hereby waives demand, presentment of payment,
notice of nonpayment, protest, notice of protest and all other notice, filing of
suit and diligence in collecting this Note.
SECTION 3. EVENTS OF DEFAULT. Each of the following shall constitute an
Event of Default hereunder:
(a) Default in the payment of Interest or the Principal Amount which
default continues for five (5) Business Days after the same shall become due and
payable; and
(b) (i) The Corporation or SIRSI Corporation, a Delaware corporation
("SIRSI DELAWARE") shall (A) commence a case, proceeding or other action under
any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts; (B) commence a case, proceeding or other action seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its assets; or (C) make a general
assignment for the benefit of its creditors; (ii) there should be commenced
against the Corporation or SIRSI Delaware a proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an order
for relief any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of ninety (90) days; or (iii) there should
be commenced against the Corporation or SIRSI Delaware any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint,
or similar process against all or any substantial part of its assets that
results in the entry of an order for any such relief that shall not have been
vacated, discharged or stayed or bonded pending appeal within ninety (90) days
from the entry thereof.
Upon and after the occurrence of an Event of Default, but subject to
the limitations contained in Section 4 hereof, the Payee may declare the
outstanding Principal Amount immediately due and payable, and the Corporation
shall immediately pay to the Payee all such amounts, with Interest accrued but
unpaid thereon to the date of payment in full at the applicable rate provided
hereof.
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SECTION 4. SUBORDINATION.
(a) SUBORDINATION OF LIABILITIES. The Corporation, for itself, its
successors and assigns, covenants and agrees, and the Payee by its acceptance
hereof likewise covenants and agrees, that the payment of the principal of,
interest on, and all other amounts owing in respect of this Note (the
"SUBORDINATED INDEBTEDNESS") is hereby expressly subordinated, to the extent and
in the manner hereinafter set forth, to the prior payment in full in cash of all
Senior Indebtedness. The provisions of this Section 4 shall constitute a
continuing offer to all Persons who, in reliance upon such provisions, become
holders of, or continue to hold, Senior Indebtedness, and such provisions are
made for the benefit of the holders of Senior Indebtedness, and such holders are
hereby made obligees hereunder the same as if their names were written hereof as
such, and they and/or each of them may proceed to enforce such provisions.
(b) CORPORATION NOT TO MAKE PAYMENTS WITH RESPECT TO SUBORDINATED
INDEBTEDNESS IN CERTAIN CIRCUMSTANCES.
(i) Subject to the provision of clause (ii) of this Section
4(b), the Corporation shall make payment of the Principal Amount of and Interest
on this Note at its Maturity provided that no [^] Default or Event of Default
under (and as defined in) the Credit Agreement [^] has occurred and is
continuing ("Senior Debt Default").
(ii) In the event of any Senior Debt Default, no amount shall
be paid by the Corporation in respect to any Interest hereon, the Principal
Amount hereof (whether at maturity or otherwise) or any other payment obligation
hereunder, and the holder of this Note shall be entitled to receive any amount
in respect of this Note [^] unless and until such Senior Debt Default shall have
been cured or waived or shall have ceased to exist and any acceleration of
Senior Debt occurring as a result thereof shall have been rescinded or annulled,
or the Senior Debt to which such default relates all have been paid in full in
cash.
(iii) In the event that notwithstanding the provisions of the
preceding clause (ii) of this Section 4(b) the Corporation shall make any
payment on account of the Subordinated Indebtedness at a time when payment is
not permitted thereby, such payment shall be held by the holder of this Note in
trust for the benefit of and shall be paid forthwith over and delivered to, the
holders of Senior Indebtedness or their representative or the trustee under the
indenture or other agreement pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, for application pro rata to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in full
in accordance with the terms of such Senior Indebtedness after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness. Without in any way modifying the provisions of this Section 4 or
affecting the subordination effected hereby, the Corporation shall give the
holder of this Note prompt written notice of any event which would prevent
payments under Section 4 hereof.
(c) SUBORDINATION TO PRIOR PAYMENT OF ALL SENIOR INDEBTEDNESS ON
DISSOLUTION, LIQUIDATION OR REORGANIZATION OF THE CORPORATION.
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Upon any distribution of assets of the Corporation upon dissolution,
winding up, liquidation or reorganization of the Corporation (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or otherwise):
(i) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full in cash of all Senior Indebtedness
(including, without limitation, post-petition interest at the rate provided in
the documentation with respect to the Senior Indebtedness, whether or not such
post-petition interest is an allowed claim against the debtor in any bankruptcy
or similar proceeding) before the holder of this Note is entitled to receive any
payment of any kind or character on account of the Subordinated Indebtedness;
(ii) any payment or distribution of assets of the Corporation
of any kind or character, whether in cash, property or securities, to which the
holder of this Note would be entitled except for the provisions of this Section
4, shall be paid by the liquidating trustee or agent or other Person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or other trustee or agent, directly to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture under which any instruments evidencing any such
Senior Indebtedness may have been issued, to the extent necessary to make
payment in full in cash of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness; and
(iii) in the event that, notwithstanding the foregoing
provisions of this Section 4, any payment or distribution of assets of the
Corporation of any kind or character, whether in cash, property or securities,
shall be received by the holder of this Note on account of Subordinated
Indebtedness before all Senior Indebtedness is paid in full in cash, such
payment or distribution shall be received and held in trust for and shall be
paid over to the holders of the Senior Indebtedness remaining unpaid or
unprovided for or their representative or representatives, or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, for application to the payment of such
Senior Indebtedness until all such Senior Indebtedness shall have been paid in
full in cash, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
Without in any way modifying the provisions of this Section 4 or
affecting the subordination effected hereby, the Corporation shall give prompt
written notice to the holder of this Note of any dissolution, winding up,
liquidation or reorganization of the Corporation (whether in bankruptcy,
insolvency or receivership proceedings or upon assignment for the benefit of
creditors or otherwise).
(d) SUBROGATION. Subject to the prior payment in full in cash of all
Senior Indebtedness, the holder of this Note shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
assets of the Corporation applicable to the Senior Indebtedness until all
amounts owing on this Note shall be paid in full, and for the purpose of such
subrogation no payments or distributions to the holders of the Senior
Indebtedness by or on behalf of the Corporation or by or on behalf of the holder
of this Note by virtue of this Section 4 which otherwise would have been made to
the holder of this Note shall,
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as between the Corporation, its creditors other than the holders of Senior
Indebtedness, and the holder of this Note, be deemed to be payment by the
Corporation to or on account of the Senior Indebtedness, it being understood
that the provisions of this Section 4 are intended solely for the purpose of
defining the relative rights of the holder of this Note, on the one hand, and
the holders of the Senior Indebtedness, on the other hand.
(e) OBLIGATION OF THE CORPORATION UNCONDITIONAL. Nothing contained
in this Section 4 or in this Note is intended to or shall impair, as between the
Corporation and the holder of this Note, the obligation of the Corporation,
which is absolute and unconditional, to pay to the holder of this Note the
Principal Amount and interest on this Note as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the holder of this Note and creditors of the Corporation
other than the holders of the Senior Indebtedness. Upon any distribution of
assets of the Corporation referred to in this Section 4, the holder of this Note
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the holder of this
Note, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Corporation, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Section 4.
(f) SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
CORPORATION OR THE HOLDERS OF SENIOR INDEBTEDNESS. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Corporation or by any act or failure to act in
good faith by any such holder, or by any noncompliance by the Corporation with
the terms and provisions of this Note, regardless of any knowledge thereof which
any such holder may have or be otherwise charged with. The holders of the Senior
Indebtedness may, without in any way affecting the obligations of the holder of
this Note with respect hereto, at any time or from time to time and in their
absolute discretion, change the manner, place or terms of payment of, change or
extend the time of payment of, or renew or alter, any Senior Indebtedness or
amend, modify or supplement any agreement or instrument governing or evidencing
such Senior Indebtedness or any other document referred to thereof, or exercise
or refrain from exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver of default thereunder and
the release of any collateral securing such Senior Indebtedness, all without
notice to or assent from the holder of this Note.
(g) SENIOR INDEBTEDNESS. The term "Senior Indebtedness" shall mean
all Obligations (as defined below) (i) of the Corporation under, or in respect
of, the Credit Agreement (as amended, modified, supplemented, extended,
restated, refinanced, replaced or refunded from time to time, the "CREDIT
AGREEMENT"), dated as of August [ ], 2001, by and among the Corporation, SIRSI
Delaware, the lenders from time to time party thereto (the "BANKS"), and
Paribas, as Agent, and any and all renewals, extensions, restatements,
refinancings (including successive refinancings) or refundings thereof and the
other Credit Documents (as defined in the Credit Agreement), including the
Holdings Guaranty (as defined in the Credit Agreement) and (ii) of the
Corporation under, or, in respect of, any Interest Rate Protection Agreements
(as defined in the Credit Agreement). As used herein, the term "OBLIGATION"
shall mean any
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principal, interest, premium, penalties, fees, expenses, indemnities and other
liabilities and obligations (including any guaranties of the foregoing
liabilities and obligations) payable under the documentation governing any
Senior Indebtedness (including interest after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding, whether or not such
interest is an allowed claim against the debtor in any such proceeding).
(h) PROOFS OF CLAIM. In the event of any bankruptcy, insolvency or
liquidation proceeding with respect to the Corporation, Payee agrees that if it
fails to file a proof of claim for its Subordinated Indebtedness prior to 10
Business Days before the expiration of the time to file any such proof of claim,
Payee hereby irrevocably appoints the senior agent under the Credit Agreement
its agent and attorney-in-fact (i) to make, file and present for and on behalf
of the holders of the Subordinated Indebtedness such proofs of claims against
the Corporation on account of the Subordinated Indebtedness and other motions or
pleadings as the senior agent may deem expedient or proper and (ii) to vote such
claims in such proceedings (in the name of the senior agent or the holders of
the Subordinated Indebtedness as the senior agent may deem necessary or
advisable) upon the failure of Payee to do so prior to 10 Business Days before
the expiration of the time to vote any such claim; provided the senior agent
shall have no obligation to make, file, present and/or vote any such proof of
claim. In the event the senior agent votes any claim in accordance with its
authority granted hereby, Payee shall not be entitled to change or withdraw such
vote. Payee shall provide to Agent all information and documents necessary to
present claims or seek enforcement as aforesaid. Payee agrees that it shall not
take any action in any way so as to contest (i) the validity or the
enforceability of the Credit Agreement, the Credit Documents, the Obligations or
the liens and security interests to the extent granted to the Banks with respect
to the Senior Indebtedness, (ii) the rights and duties of the Banks established
in the Credit Agreement or any security documents with respect to such liens and
security interests, or (iii) the validity or enforceability of this Note or any
agreement or instrument to the extent evidencing or relating to the Senior
Indebtedness and Payee agrees that it will not assert in any bankruptcy or
insolvency proceeding any claim that the assets of the Payee shall be
substantively consolidated with those of the Corporation or any similar claim
which could have the effect of making the assets of the Payee available to
satisfy the liabilities of the Corporation.
(i) REINSTATEMENT. The obligations of the Payee under the provisions
of this Note shall continue to be effective, or be reinstated, as the case may
be, as to any payment in respect of any Senior Indebtedness that is rescinded or
must otherwise be returned by the holder of such Senior Indebtedness upon the
occurrence or as a result of any bankruptcy or judicial proceeding, all as
though such payment had not been made.
SECTION 5. USE OF PROCEEDS.
The proceeds of the indebtedness evidenced by this Note shall be
used by a subsidiary of the Corporation solely for the purpose of purchasing
Shares tendered pursuant to its Offer to the shareholders of the Payee as
provided for under the terms of the Merger Agreement.
*******
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IN WITNESS WHEREOF, the Corporation has duly executed and delivered this
Bridge Note as of the date first written above.
SIRSI HOLDINGS CORP.
By:
------------------------
Name:
Title:
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