EXHIBIT 10.14
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of September 20, 1999, is entered into by and among;
(1) INDUS INTERNATIONAL, INC., a Delaware corporation ("Borrower");
(2) Each of the financial institutions listed in Schedule I to the
Credit Agreement referred to in Recital A below (collectively, the "Banks"); and
(3) CALIFORNIA BANK & TRUST, as successor by merger to Sumitomo Bank of
California, a California banking corporation, as agent for the Banks (in such
capacity, "Agent").
RECITALS
A. Borrower, the Banks and Agent are parties to an Amended and Restated
Credit Agreement dated as of June 10, 1998, as amended by that certain First
Amendment to Amended and Restated Credit Agreement dated as of June 30, 1998 and
by that certain Second Amendment to Amended and Restated Credit Agreement dated
as of August 1, 1998 (as amended, the "Credit Agreement").
B. Borrower has requested the Banks and Agent to amend the Credit
Agreement in certain respects.
C. The Banks and Agent are willing so to amend the Credit Agreement
upon the terms and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and variable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower the Banks and Agent hereby agree as follows:
1. Definitions, Interpretation. All capitalized terms defined above
and elsewhere in this Amendment shall be used herein as to defined. Unless
otherwise defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in the Credit Agreement, as amended by
this Amendment. The rules of construction set forth in Section 1 of the Credit
Agreement shall, to the extent not inconsistent with the terms of this
Amendment, apply to this Amendment and are hereby incorporated by reference.
2. Amendment to Credit Agreement. Subject to the satisfaction of the
conditions set forth in Paragraph 5 below, the Credit Agreement is hereby
amended as follows:
(a) All references in the Credit Agreement to the "Sumitomo Bank
of California" or to "SBC" are deleted and replaced by "California Bank &
Trust."
(b) Paragraph 1.01, entitled "Definitions," is amended by
changing the definition of "Base Rate" as set forth therein to read in
its entirety as follows:
"Base Rate" shall mean, on any day, the Prime Rate in effect
on such date; provided, however, that the Base Rate shall be
increased by two percent (2.00%) on the date an Event of
Default of the type set forth in Subparagraph 6.01(a) occurs
and ten (10) days after the date of notification of any other
type of Event of Default occurs and remains uncured, and in
each case shall continue at such increased rate during the
continuance of such Event of Default.
(c) Paragraph 1.01, entitled "Definitions," is amended by
changing the definition of "Total Commitment" set forth therein to read
in its entirety as follows:
Total Commitment shall mean Fifteen Million Dollars
($15,000,000) or, if such amount is reduced pursuant to
Subparagraph 2.03(b), the amount to which so reduced and in
effect from time to time.
(d) Subparagraph 2.01(a) is amended by changing the
reference to "July 31, 2000" set forth therein to "July 31, 2001."
(e) Clause (i) of Subparagraph 2.02(a) entitled "Letter
of Credit Facility" is amended by changing the reference to "Five
Million Dollars ($5,000,000) set forth therein to "Ten Million Dollars
($10,000,000)."
(f) Subparagraph 2.03(b) entitled "Amount Limitations,
Commitment Restrictions, Etc.," is amended by changing the reference to
"$20,000,000" set forth therein to "$10,000,000."
(g) Paragraph 2.13(a) entitled "Security," is amended to
read in its entirety as follows: "There is no security for the
Obligations."
(h) Clause (iii) of Subparagraph 5.01(a), entitled
"Financial Statements, Reports, Etc.," is amended by deleting
"thereof," at the end thereof and inserting in its place "thereof and
(D) the Borrower's annual 10-K report."
(i) Clause (iii) of Subparagraph 5.02(a), entitled
"Indebtedness," is amended by deleting the reference to "$4,000,000"
and replacing it with $5,000,000."
(j) Subparagraph 5.02(c), entitled "Asset Disposition,"
is amended by inserting after "assets or property" the following: "for
less than full, fair and reasonable consideration."
(k) Subparagraph 5.02(d), entitled "Mergers,
Acquisitions, Etc.," is deleted and replaced with the following:
(d) Merger, Acquisitions, Etc. Neither Borrower
nor any of its Subsidiaries shall sell,
lease or dispose of (whether in one
transaction or in a series of transactions)
all, or in the opinion of the Agent, a
substantial portion of its assets;
liquidate; dissolve; or consolidate with,
merge, or enter a partnership, joint venture
or other combination where Borrower is not
the
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surviving entity or where the effect of such
consolidation, merger, partnership, joint
venture or other combination would result in
an Event of Default.
(e) Subparagraph 5.02(3), entitled
"Investments," is deleted.
(l) Subparagraph 5.02(f), entitled "Dividends,
Redemptions, etc.," is amended by adding at the end thereof:
(iv) Borrower may otherwise repurchase shares of
its capital stock with a cash cost of no
more than $10,000,000 in the aggregate as
measured from July 30, 1999 going forward.
(m) Subparagraph 5.03(b) entitled "Tangible Net Worth,"
is deleted and replaced by the following:
(b) Tangible Net Worth. Borrower shall not
permit its consolidated Tangible Net Worth
to be on any date of determination less than
the difference between $100,000,000 and the
aggregate up to $10,000,000 of the cash cost
of Borrower's repurchases of its capital
stock from June 30, 1999 going forward.
(n) Subparagraph 5.03(d), entitled "Profitability," is
deleted and replaced with the following:
(d) Profitability. Borrower shall not
permit the consolidated net income after losses of
Borrower and its Subsidiaries, on a cumulative,
rolling four quarter basis with a maximum of one loss
quarter in any consecutive four quarter period, to be
less than $1.00. Such consolidated net income
includes profits from ongoing operations but excludes
gains from the sale of marketable securities or other
assets outside the ordinary course of business.
(o) Subparagraph 8.01 entitled "Notice," is amended by
deleting the name, address, telephone number and facsimile number of
Agent, set forth therein and replacing them with the following:
California Bank & Trust
San Francisco Regional Commercial Lending Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(p) Schedule 1 is deleted in its entirety and replaced
with Schedule 1 hereto. Union Bank of California, N.A. is thereby
deleted from the definition of "Banks" and shall have no
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further obligations to make advances or participate in the receipt of
loan fees, principal or interest under the Credit Agreement
(q) Schedule II is deleted in its entirety and replaced with
Schedule II hereto.
(r) Schedule 4.01(p) is deleted in its entirety and replaced
with Schedule 4.01(p) hereto.
(s) Exhibits A, B, C and F are amended by deleting the
references to "Sumitomo Bank of California" as Agent and its address
and replacing them with the following:
California Bank & Trust
San Francisco Regional Commercial Lending Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention. Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(t) Exhibit E entitled "Amended and Restated Security
Agreement" is deleted and the original, executed copy thereof is
canceled.
3. NOTES.
(a) The Note, in the principal sum of $15,000,000.00, dated
June 10, 1998, executed by Borrower in favor of Union Bank of
California, N.A., is cancelled and the original thereof will be so
marked by said Bank and returned forthwith to Borrower.
(b) Concurrently with the execution of this Amendment by
Borrower. Borrower shall execute and deliver to California Bank &
Trust a Note in substantially the form of Exhibit D to the Credit
Agreement in the principal sum of $15,000,000. Said Note shall
supercede and replace that certain Note, dated June 10, 1998, in the
principal sum of $20,000,000, executed by Borrower in favor of
Sumitomo Bank of California, the original of which shall be marked by
California Bank & Trust as so superceded by the replacement Note to be
executed concurrently herewith.
4. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Agent and the Banks that the following are true and correct on the
date of this Amendment and that, after giving effect to the amendment set forth
in Paragraph 2 above, the following will be true and correct on the Effective
Date (as defined below):
(a) The representations and warranties of Borrower set forth
in Paragraph 4.01 of the Credit Agreement and in the other Credit
Documents are true and correct in all material aspects.
(b) No Default or Event of Default has occurred and is
continuing; and
(c) Each of the Credit Documents is in full force and effect.
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IN WITNESS WHEREOF, Borrower, Agent and the Banks have caused this
Amendment to be executed as of the day and year first above written.
BORROWER INDUS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman & CEO
AGENT: CALIFORNIA BANK & TRUST,
as successor by merger to
Sumitomo Bank of California
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
By: /s/ S.C. Bellicini
----------------------------
Name: S.C. Bellicini
Title: Senior Vice President
BANKS: CALIFORNIA BANK & TRUST,
as successor by merger to
Sumitomo Bank of California
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
By: /s/ S.C. Bellicini
----------------------------
Name: S.C. Bellicini
Title: Senior Vice President
UNION BANK OF CALIFORNIA
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Vice President
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SCHEDULE I
BANKS
Banks: Proportionate Share:
----- -------------------
California Bank & Trust 100.00%
San Francisco Regional Commercial
Lending Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
California Bank & Trust
San Francisco Regional Commercial
Lending Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Wiring Instructions:
[Information maintained with Agent]
SCHEDULED II
PRICING GRID
XXXXX 0 XXXXX 0
PERIOD PERIOD
------- -------
APPLICABLE MARGINS 1.00% 1.25%
COMMITMENT FEE PERCENTAGES .100% .200%
1. The Applicable Margin for each LIBOR Loan and the Commitment Fee
Percentage will be set for each Pricing Period and will vary depending
upon whether such period is a Level 1 Period or a Level 2 Period.
2. Each Pricing Period will be a Level 1 Period or a Level 2 Period (i) in
the case of the Applicable Margins, depending upon borrower's
consolidated Leverage Ratio for the most recent fiscal quarter period
ending prior to the first day of such Pricing Period; and (ii) in the
case of the Commitment Fee Percentage, depending upon Borrower's
consolidated Leverage Ratio for the most recent fiscal quarter period
ending prior to the first day of such Pricing Period as follows:
(a) If, during any Pricing Period, Borrower's
consolidated Leverage Ratio is less than or equal to .650 to 1:00,
Borrower's pricing with respect to the Applicable Margin will be a
Level 1 Period.
(b) If, during any Pricing Period, Borrower's
consolidated Leverage Ratio is greater than .650 to 1:00, Borrower's
pricing with respect to the Applicable Margin will be a Level 2 Period.
SCHEDULE 4.01(P)
SUBSIDIARIES
Indus Group North America, Inc.
Indus Foreign Sales Corporation
Indus UK, Inc.
Indus International, Ltd.
Indus International, S.A.
Indus International Pty Ltd.
Indus International Software Pte. Ltd.
Indus International Canada, Inc.
