SEVENTH AMENDMENT TO CREDIT AGREEMENT
This Amendment, dated as of September 29, 2000 (this "Amendment") is
entered into by and among Mynd Corporation (formerly known as Policy Management
Systems Corporation), a South Carolina corporation (the "Borrower"), the
Subsidiaries of the Borrower parties hereto (the "Guarantors"), the financial
institutions parties to this Agreement (collectively, the "Banks"; individually,
a "Bank") and Bank of America, N.A. (formerly known as Bank of America National
Trust and Savings Association), as Agent (the "Agent").
RECITALS
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The Borrower, the Guarantors, the Agent and the Banks are parties to a
Credit Agreement dated as of August 8, 1997, as amended by a First Amendment to
Credit Agreement dated as of November 5, 1999, as amended by a Second Amendment
to Credit Agreement dated as of February 10, 2000, as amended by a Third
Amendment to Credit Agreement dated as of March 30, 2000, as amended by a Fourth
Amendment to Credit Agreement dated as of April 24, 2000, as amended by a
Consent, Waiver and Fifth Amendment to Credit Agreement dated as of July 14,
2000 and as further amended by a Sixth Amendment to Credit Agreement dated as of
August 10, 2000, (the "Credit Agreement") pursuant to which the Banks extended a
revolving facility. Capitalized terms used and not otherwise defined or amended
in this Amendment shall have the meanings respectively assigned to them in the
Credit Agreement.
The Borrower has requested that the Banks modify certain provisions of the
Credit Agreement and the Banks have agreed to do so, all upon the terms and
provisions and subject to the conditions hereinafter set forth.
AGREEMENT
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In consideration of the foregoing and the mutual covenants and agreement
hereinafter set forth, the parties hereto mutually agree as follows:
A. AMENDMENTS
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1. Amendment to Section 1.1(a). The following definitions are hereby added
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to Section 1.1(a) in the appropriate alphabetical order:
"Availability" means, at any time (a) the Borrowing Base minus (b) the
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Committed Loans outstanding as of such date.
"Operating Account" means any bank or other account maintained by the
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Borrower which receives proceeds, payment, receipts or other deposits.
"Wachovia Operating Account" means the Operating Account, with account
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no. 320520166 maintained by Wachovia Bank, N.A. for the benefit of the
Borrower .
2. Amendment to Section 2.1. Section 2.1 of the Credit Agreement is hereby
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amended by deleting the amount "$5,000,000" and replacing it with the
amount "$1,000,000".
3. Amendment to Section 5.12. Section 5.12 of the Credit Agreement is
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hereby amended and restated in its entirety to read as follows:
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Minimum Consolidated Tangible Net Worth. At any date, Consolidated
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Tangible Net Worth will not be less than (i) $126,718,000 until
October 30, 2000 and $196,718,000 on October 31, 2000 and thereafter
plus on an annual basis (ii) beginning with the fiscal year beginning
January 1, 1999, 50% of Consolidated Net Income, if positive. There
shall be excluded from the calculation of Consolidated Tangible Net
Worth (i) all acquisition related charges of intangibles and any
amounts that have been expended to repurchase shares of the Borrower's
common stock, in each case, since August 8, 1997 and (ii) fees and
expenses paid in connection with the termination of the merger
agreement with Welsh, Carson, Xxxxxxxx & Xxxxx and accrued by the
Borrower on its income statement in accordance with GAAP in an amount
not to exceed $24,000,000.
4. Amendment to Section 5.21. Section 5.21 of the Credit Agreement is
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hereby amended and restated in its entirety to read as follows:
Property Acquisition Costs and Capitalized Software Costs. The
Borrower will not permit the sum of Property Acquisition Costs and
Capitalized Software Costs for (a) fiscal year 2000 to exceed
$75,000,000 and (b) fiscal year 2001 to exceed $50,000,000.
5. Amendment to Section 5.22. Section 5.22 of the Credit Agreement is
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hereby amended and restated in its entirety to read as follows:
Consolidated Adjusted Cash Flow. The Borrower will cause Consolidated
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Adjusted Cash Flow minus Capital Expenditures to equal or exceed the
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following amounts for the quarterly period ending on each of the
following dates: (i) March 31, 2000, ($2,000,000), (ii) June 30, 2000,
$10,000,000, and (iii) September 30, 2000, $10,000,000, provided,
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however that for the purposes of either (ii) or (iii) above, such
calculation shall exclude fees and expenses paid in connection with
the termination of the merger agreement with Welsh, Carson, Xxxxxxxx &
Xxxxx and accrued by the Borrower on its income statement in
accordance with GAAP in an aggregate amount not to exceed $24,000,000
and for the purposes of (iii) above, such calculation shall also
exclude one-time nonrecurring fees and expenses incurred in connection
with severance payments and headcount reduction incurred in the
quarter ending September 30, 2000 in an aggregate amount not to exceed
$10,000,000.
6. Addition of New Section 5.23. A new Section 5.23 is hereby added as
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follows:
Section 5.23 External Syndicate Advisor.
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Upon request by the Agent, the Borrower shall and shall cause
each of its Subsidiaries to provide such information and assistance to
an external advisor (the "Syndicate Advisor"), such advisor to be
selected by the Agent and the fees and expenses of which shall be paid
by the Borrower. The scope of the investigation of the Syndicate
Advisor shall be determined by the Agent and shall include, but not be
limited to, a determination of sustainable free cash flow, a full
review of accounts receivable and debt capacity of the Borrower. The
Syndicate Advisor shall agree to be bound by the confidentiality
provisions set forth in Section 10.11 hereof.
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7. Addition of New Section 5.24. A new Section 5.24 is hereby added as
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follows:
Section 5.24 Additional Information; Bank Meeting
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In the event of the termination of the Agreement and Plan of
Merger dated as of June 20, 2000 by and among the Borrower, Computer
Sciences Corporation and Patriot Acquisition Corp., the Agent shall
have the right to request, and the Borrower shall be obligated under
all circumstances to comply with such request, (a) a bank meeting to
be scheduled as soon as reasonably possible, the scope of such bank
meeting shall include, but not be limited to (i) updates on the
Borrower's internal budgets, (ii) contingency plans of the Borrower,
(iii) information relating to the Xxxx-Xxxxx-Xxxxxx antitrust approval
process and (iv) other matters as may be reasonably requested by the
Agent or any Bank and (b) any additional information, reporting or
otherwise, relating to the Borrower, in the reasonable discretion of
the Agent.
8. Addition of New Section 5.25. A new Section 5.25 is hereby added as
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follows:
Section 5.25 Availability
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The Borrower will maintain Availability of not less than
$5,000,000 at all times; provided, however, that in the event of the
termination of the Agreement and Plan of Merger dated as of June 20,
2000 by and among the Borrower, Computer Sciences Corporation and
Patriot Acquisition Corp., the minimum Availability required hereunder
shall be reduced to $0.
9. Addition of New Section 5.26. A new Section 5.26 is hereby added as
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follows:
Section 5.26 Operating Accounts.
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(a) All of the Operating Accounts of the Borrower maintained with
any of the Banks are set forth on Schedule 5.26 hereto. The Borrower
shall not close and/or move any Operating Account set forth on
Schedule 5.26 to an Operating Account maintained with another bank or
other financial institution that is not a Bank hereunder; and
(b) The Borrower shall be required, on each Business Day, to wire
the Daily Net Amount (as defined herein) of the Wachovia Operating
Account to the Agent, for the benefit of the Banks, by no later than
the close of business on such day. For purposes hereof, "Daily Net
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Amount" means the sum of (i) the total amount of funds in the Wachovia
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Operating Account as of such day less (ii) disbursements to be made
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that Business Day and less (iii) $250,000, which shall be the minimum
balance to be maintained in the Wachovia Operating Account at all
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times, which sum shall be rounded down to the nearest $50,000
increment. The Borrower shall notify the Agent by no later than 10:30
A.M. (Charlotte time) of the Daily Net Amount which shall be wired by
the end of that Business Day to the Agent for the benefit of the Banks
to reduce the outstanding Committed Loans.
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B. REPRESENTATIONS AND WARRANTIES
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The Borrower and the Guarantors hereby represent and warrant to the Agent
and Banks that:
1. After giving effect to this Amendment, no Event of Default specified
in the Credit Agreement and no event which with notice or lapse of time or both
would become such an Event of Default has occurred and is continuing;
2. After giving effect to this Amendment, the representations and
warranties of the Borrower and the Guarantors pursuant to the Credit Agreement
are true on and as of the date hereof as if made on and as of said date; and
3. The making and performance by the Borrower and the Guarantors of
this Amendment have been duly authorized by all necessary corporate action.
C. EFFECTIVENESS; CONDITIONS
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This Amendment will become effective as of September 30, 2000 upon
execution by the Required Banks (the "Effective Date"). The Borrower shall
provide to the Agent in form and substance satisfactory to the Agent, the
following:
1. Execution of Counterparts of Amendment. The Agent shall have
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received counterparts (or other evidence of execution, including telephonic
message, satisfactory to the Agent) of this Amendment, which collectively shall
have been duly executed on behalf of each of the Borrower, the Guarantors (other
than Policy Management Systems Investments, Inc., whose executed counterpart
shall not be required to be delivered to the Agent until October 11, 2000), the
Banks and the Agent.
2. Amendment Fee. The Borrower shall have paid an amendment fee to the
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Agent for the account of the consenting Banks equal to 0.10% of the Commitments
in accordance with their Pro Rata Share; provided, however, that for the
purposes hereof, "consenting Banks" shall include all such Banks that consent to
the Amendment on or before October 11, 2000.
3. Other Fees. The Borrower shall have paid to the Agent all other
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fees due and payable to the Agent as agreed to by the Borrower.
4. Other Items. The Agent shall have received such other documents,
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agreements or information which may be reasonably requested by the Agent.
D. MISCELLANEOUS
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1. This Amendment may be signed in any number of counterparts, each of
which shall be an original, with same effect as if the signatures thereto and
hereto were upon the same instrument.
2. Except as herein specifically amended, all terms, covenants and
provisions of the Credit Agreement shall remain in full force and effect and
shall be performed by the parties hereto according to its terms and provisions
and all references therein or in the Exhibits shall henceforth refer to the
Credit Agreement as amended by this Amendment.
3. This Amendment shall be governed by and construed in accordance with
the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written.
BORROWER: MYND CORPORATION
(formerly known as Policy Management Systems
Corporation)
By: /S/ Xxxxxxx X. Xxxxxxxx
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Title:
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GUARANTORS:
MYND CORPORATION F/K/A CYBERTEK
CORPORATION
MYND INTERNATIONAL, LTD.
MYND PARTNERS, L.P. F/K/A CYBERTEK SOLUTIONS, L.P.
By: POLICY MANAGEMENT
SYSTEMS CORPORATION, its General Partner
MYND CORPORATION F/K/A XXXX
TECHNOLOGY GROUP, INC.
MYND CORPORATION F/K/A THE
LEVERAGE GROUP, INC.
SOFTWARE SERVICES HOLDING, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
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Title: ___________________________
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POLICY MANAGEMENT SYSTEMS
INVESTMENTS, INC.
By: /S/ Xxxxxxxxx X. Xxxxxx
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Title: President
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BANKS: BANK OF AMERICA, N.A.
By:/S/ Xxxx X. Xxxxxxxx
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Title: Managing Director
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WACHOVIA BANK, N.A.
By:/S/ Xxxxxx X. Xxxxxxx, Xx.
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Title: Senior Vice President
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FIRST UNION NATIONAL BANK
By:/S/ Xxxxxxxx X. Wesssinger
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Title: Senior Vice President
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DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By: /S/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President
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By: /S/ Xxxxxx X. Xxxxxxx
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Title: Vice President
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DAI-ICHI KANGYO BANK, LTD.
By: /S/ Xxxxxx X. Xxxxx
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Title: Vice President
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THE FUJI BANK, LIMITED
By:
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Title:
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SCHEDULE 5.26
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Operating Accounts at Banks
Wachovia Accounts:
3205 2016 6 Policy Management Systems Corporation
3205 2008 3 Policy Management Systems Corporation
1868 064291 Policy Management Systems Corporation
3205 2011 7 Policy Management Systems Corporation
FIRST UNION NATIONAL BANK*
2010000061846 Policy Management Systems Corporation
*Does not include accounts held by PMSC for customer/employee funds
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