Exhibit 10.14
FIRST AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
First Amendment dated as of June 11, 2003 to Revolving Credit
Agreement (the "FIRST AMENDMENT"), by and among XXXXX, INC., a Massachusetts
corporation (the "BORROWER") and FLEET NATIONAL BANK and the other lending
institutions listed on SCHEDULE 1 to the Credit Agreement (as hereinafter
defined) (the "LENDERS"), amending certain provisions of the Revolving Credit
Agreement dated as of February 28, 2003 (as amended and in effect from time to
time, the "CREDIT AGREEMENT") by and among the Borrower, the Lenders, and FLEET
NATIONAL BANK in its capacity as administrative agent for the Lenders (the
"ADMINISTRATIVE AGENT"). Terms not otherwise defined herein which are defined in
the Credit Agreement shall have the same respective meanings herein as therein.
WHEREAS, the Borrower and the Lenders have agreed to modify certain
terms and conditions of the Credit Agreement as specifically set forth in this
First Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. AMENDMENT TO SECTION 1 OF THE CREDIT AGREEMENT.
Section 1.1 of the Credit Agreement is hereby amended by inserting the following
definitions in the appropriate alphabetical order:
DESIGNATED EVENT. As such term is defined in the
Subordinated Indenture.
INDENTURE EFFECTIVE DATE. The date on which the
Subordinated Indenture becomes effective and the Borrower has incurred
the Subordinated Debt, which date shall be prior to June 30, 2003.
INDENTURE TRUSTEE. Wachovia National Bank.
OPEN MARKET PURCHASES. The purchase by the Borrower of
all or any portion of the Subordinated Notes from the holders thereof
so long as (a) the total, cumulative amount of the consideration paid
for all such purchases from and after the Indenture Effective Date
does not exceed, in the aggregate, $15,000,000 in each fiscal year,
and the Subordinated Notes so purchased in each case are promptly
cancelled by the Borrower; (b) the total cumulative amount of the
consideration paid for each Subordinated Note does not exceed 110% of
the face amount of each such Subordinated Note plus accrued and unpaid
interest
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thereon; (c) the Borrower has no Revolving Credit Loans outstanding
both immediately prior to and after giving effect to such repurchase;
and (d) the Borrower has demonstrated to the satisfaction of the
Administrative Agent that the Borrower's Unencumbered Cash both
immediately prior to and after giving effect to each such repurchase
is not less than $35,000,000.
SENIOR LEVERAGE RATIO. As of any date of determination,
the ratio of (a) Consolidated Total Funded Debt outstanding on such
date less the aggregate amount of Subordinated Debt outstanding on
such date to (b) Consolidated EBITDA for the Reference Period ending
on such date (or if such date is not a fiscal quarter end date, the
fiscal quarter most recently ended).
SUBORDINATED DEBT. Unsecured Indebtedness of the
Borrower that is expressly subordinated and made junior to the payment
and performance in full of the Obligations, as evidenced as such by
the Subordinated Indenture or by another written instrument containing
subordination provisions and terms and conditions in form and
substance approved by the Lenders in advance in writing.
SUBORDINATED DEBT DOCUMENTS. Collectively, the
Subordinated Purchase Agreement, the Subordinated Indenture, the
Subordinated Registration Rights Agreement, and the Subordinated
Notes.
SUBORDINATED INDENTURE. The Indenture dated as of a
date after June 11, 2003 but prior to June 30, 2003 between the
Borrower and the Indenture Trustee relating to the Subordinated Notes,
which shall contain substantially identical terms and conditions to
those contained in the draft Offering Memorandum dated June 11, 2003
and distributed to the Administrative Agent and the Lenders on such
date.
SUBORDINATED NOTES. The Convertible Subordinated
Debentures due 2013 in the aggregate principal amount of not more than
$150,000,000 issued pursuant to the Subordinated Indenture, which
shall have an interest rate applicable thereto of not more than five
percent (5%) per annum.
SUBORDINATED PURCHASE AGREEMENT. The Purchase
Agreement, dated or to be dated after June 11, 2003 but prior to June
30, 2003, between the Borrower and Xxxxxx Xxxxxxx & Co. Incorporated,
Wachovia Securities and certain other parties thereto as initial
purchasers, relating to the issuance and sale by the Borrower of the
Subordinated Notes.
SUBORDINATED REGISTRATION RIGHTS AGREEMENT. The
Registration Rights Agreement, dated or to be dated after June 11,
2003 but prior to June 30, 2003, between the Borrower and Xxxxxx
Xxxxxxx & Co. Incorporated, Wachovia Securities and certain other
parties thereto as initial purchasers, relating to the issuance and
sale by the Borrower of the Subordinated Notes.
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SECTION 2. AMENDMENT TO SECTION 7 OF THE CREDIT AGREEMENT.
Section 7 of the Credit Agreement is hereby amended by inserting immediately
after the text of Section 7.20 the following:
7.21. STATUS OF LOANS AS SENIOR DEBT. From and after
the Indenture Effective Date, all Indebtedness of the Borrower and
each of its Subsidiaries to the Lenders and the Administrative Agent
in respect of the Revolving Credit Loans and the Reimbursement
Obligations constitutes "Senior Indebtedness" or "Senior Debt" (or the
analogous term used therein) under the terms of the Subordinated Debt
Documents or of any other instrument evidencing or pursuant to which
there is issued Indebtedness which purports to be Subordinated Debt of
the Borrower or any Subsidiary.
7.22. SUBORDINATED DEBT DOCUMENTS. Each of the
representations and warranties made by the Borrower in any of the
Subordinated Debt Documents was true and correct in all material
respects on the date such representations and warranties were made
and/or deemed to have been made
7.23. NO OTHER SENIOR DEBT. The Borrower (a) has not
designated any Indebtedness of the Borrower or any of its Subsidiaries
as, and has no, "Designated Senior Indebtedness" (or the analogous
term used therein) for purposes of (and as defined in) the
Subordinated Indenture, other than the Obligations and (b) has no
Indebtedness under a "senior credit facility" (or the analogous term
used therein) as those terms are defined in the Subordinated Indenture
other than the Obligations.
SECTION 3. AMENDMENT TO SECTION 9 OF THE CREDIT AGREEMENT.
Section 9 of the Credit Agreement is hereby amended as follows:
(a) Section 9.1(d) of the Credit Agreement is hereby
amended by deleting Section 9.1(d) in its entirety and restating it as follows:
(d) Indebtedness (i) consisting of the Subordinated
Debt; and (ii) in respect of Hedging Agreements so long as such
arrangements are in the ordinary course of business and are not for
speculative purposes;
(b) Section 9.4 of the Credit Agreement is hereby amended
by deleting the proviso contained in Section 9.4 and restating it as follows:
"provided (i) the Borrower has no Revolving Credit Loans outstanding both
immediately prior to and after giving effect to such repurchase; and (ii) the
Borrower has demonstrated to the satisfaction of the Administrative Agent that
the Borrower's Unencumbered Cash both immediately prior to and after giving
effect to such repurchase is not less than (1) $10,000,000 (if such repurchase
is being effected prior to the Indenture Effective Date); and (2) $35,000,000
(if such repurchase is being effected after the Indenture Effective Date).
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(c) Section 9 of the Credit Agreement is further amended by
inserting immediately after the end of the text of Section 9.12 the following:
9.13. SUBORDINATED DEBT. The Borrower will not, and
will not permit any of its Subsidiaries, to amend, supplement or
otherwise modify the terms of any of the Subordinated Debt Documents
or prepay, redeem or repurchase (or offer to prepay, redeem or
repurchase) any of the Subordinated Debt [provided, however, so long
as no Default or Event of Default has occurred and is continuing or
would exist as a result thereof, the Borrower shall be permitted to
make Open Market Purchases to the extent permitted by the terms of the
Subordinated Indenture.
9.14. SENIOR DEBT. The Borrower will not (a) in any
manner designate or permit to exist any Indebtedness of the Borrower
or any of its Subsidiaries as "Designated Senior Indebtedness" (or any
analogous term) for purposes of (and as defined in) the Subordinated
Indenture, other than the Indebtedness arising under this Credit
Agreement and the Guarantees, or (b) incur or permit to exist any
Indebtedness under any "senior credit facility" (or any analogous
term) as such terms are defined in the Subordinated Indenture, other
than the Indebtedness arising under this Credit Agreement and the
Guarantees and the other Obligations.
SECTION 4. AMENDMENT TO SECTION 10 OF THE CREDIT AGREEMENT.
Section 10 of the Credit Agreement is hereby amended as follows:
(a) Section 10.2 of the Credit Agreement is hereby amended
by deleting Section 10.2 in its entirety and restating it as follows:
10.2. LEVERAGE RATIO. The Borrower will not permit the
Leverage Ratio to (a) exceed at any time from the Indenture Effective
Date through and including December 30, 2003 the ratio set forth below
(with such ratio to be determined based on the aggregate amount of the
Subordinated Notes on the date of determination):
Principal Amount of
Subordinated Notes
outstanding on date of
determination Ratio
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$125,000,000 or less 3:00:1.00
Greater than $125,000,000 but 3.25:1.00
less than or equal to
$135,000,000
Greater than $135,000,000 3.50:1.00
; and (b) exceed 3.00:1.00 at any time from and after December 31,
2003.
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(b) Section 10 of the Credit Agreement is further amended
by inserting immediately after the end of the text of Section 10.3 the
following:
10.4. SENIOR LEVERAGE RATIO. The Borrower will not
permit the Senior Leverage Ratio to exceed 1.75:1.00 at any time.
SECTION 5. AMENDMENT TO SECTION 13 OF THE CREDIT AGREEMENT.
Section 13.1 of the Credit Agreement is hereby amended as follows:
(a) Section 13.1(f) of the Credit Agreement is hereby
amended by deleting Section 13.1(f) in its entirety and restating it as follows:
(f) (i) the holders of all or any part of the
Subordinated Debt shall accelerate the maturity of all or any part of the
Subordinated Debt; or the Subordinated Debt shall be (or shall be required at
such time to be) prepaid, redeemed or repurchased in whole or in part; or the
Borrower or any of its Subsidiaries shall be or become required under the terms
of any of the Subordinated Debt Documents to prepay, redeem or repurchase (or
shall be or become required thereunder to offer to prepay, redeem or repurchase)
all or any part of the Subordinated Debt; or (ii) the Borrower or any of its
Subsidiaries shall fail to pay at maturity, or within any applicable period of
grace, any obligation for borrowed money or credit received or in respect of any
Capitalized Lease or Synthetic Lease, in an amount in excess of $5,000,000, or
any Subordinated Debt, or fail to observe or perform any material term, covenant
or agreement contained in any agreement by which it is bound, evidencing or
securing borrowed money or credit received or in respect of any Capitalized
Leases or Synthetic Leases, in an amount in excess of $5,000,000, or any
Subordinated Debt, for such period of time as would permit (assuming the giving
of appropriate notices if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof, or any such
holder or holders shall rescind or shall have the right to rescind the purchase
of any such obligations;
(b) Section 13.1(n) of the Credit Agreement is hereby
amended by inserting immediately after the words "Change of Control" the words
"or a Designated Event".
SECTION 6. CONDITIONS TO EFFECTIVENESS. This First Amendment
shall not become effective until the Administrative Agent receives a counterpart
of this First Amendment, executed by the Borrower, the Required Lenders and the
Guarantors.
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
repeats, on and as of the date hereof, each of the representations and
warranties made by it in Section 7 of the Credit Agreement (except to the extent
of changes resulting from transactions contemplated or permitted by the Credit
Agreement (as amended by this First Amendment) and the other Loan Documents and
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date), PROVIDED,
that all references therein to the Credit Agreement shall refer to such Credit
Agreement as amended hereby. In addition, the Borrower hereby
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represents and warrants that the execution and delivery by the Borrower of this
First Amendment and the performance by the Borrower of all of its agreements and
obligations under the Credit Agreement as amended hereby are within the
authority of the Borrower and have been duly authorized by all necessary action
on the part of the Borrower.
SECTION 8. RATIFICATION, ETC. Except as expressly amended
hereby, the Credit Agreement , the other Loan Documents (which, for the
avoidance of doubt, shall included the Guarantees) and all documents,
instruments and agreements related thereto are hereby ratified and confirmed in
all respects and shall continue in full force and effect. The Credit Agreement
and this First Amendment shall be read and construed as a single agreement. All
references in the Credit Agreement or any related agreement or instrument to the
Credit Agreement shall hereafter refer to the Credit Agreement as amended
hereby.
SECTION 9. NO WAIVER. Nothing contained herein shall constitute
a waiver of, impair or otherwise affect any Obligations, any other obligation of
the Borrower or any rights of the Administrative Agent or the Lenders consequent
thereon.
SECTION 10. COUNTERPARTS. This First Amendment may be executed
in one or more counterparts, each of which shall be deemed an original but which
together shall constitute one and the same instrument.
SECTION 11. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as a document under seal as of the date first above written.
XXXXX, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Senior Vice President and Chief Financial
Officer
FLEET NATIONAL BANK
By: /s/Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Managing Director
KEY CORPORATE CAPITAL INC.
By: /s/Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Vice President
RATIFICATION OF GUARANTY
Each of the undersigned guarantors (the "GUARANTORS") hereby
acknowledges and consents to the foregoing First Amendment as of June 11, 2003,
and agrees that the Guaranty dated as of February 28, 2003 from each Guarantor
to the Administrative Agent and each Lender remains in full force and effect,
and each such Guarantor confirms and ratifies all of its obligations thereunder.
DATASKILLS, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Treasurer
KEANE FEDERAL SYSTEMS, INC.
By: /s/Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Treasurer
KEANE SECURITIES CORPORATION
By: /s/Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Treasurer
KEANE TECH, LLC
BY: XXXXX, INC., ITS MEMBER AND MANAGER
By: /s/Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Senior Vice President and Chief Financial
Officer
XXXXX BUSINESS TRUST
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Trustee
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XXXXX CARE, INC.
By: /s/Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Treasurer
XXXXX SERVICE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Assistant Treasurer
XXXXX INDIA HOLDINGS, INC.
By: /s/Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Treasurer
