13
CHAR1\527698_ 7
CHAR1\527698_ 7
THIRD AMENDMENT TO CREDIT AGREEMENT
This Amendment, dated as of March 30, 2000 (this "Amendment") is entered
into by and among Policy Management Systems Corporation, a South Carolina
corporation (the "Borrower"), 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
--------
The Borrower, 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 further amended by a Second Amendment to Credit
Agreement dated as of February 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. In order to induce the Banks to agree to the foregoing, the
Banks have requested, and the Borrower has agreed, that the Borrower will pay an
amendment fee, modify the pricing, reduce the Commitments and provide the Banks
with security. The Borrower has requested that the Banks enter into this
Amendment in order to approve and reflect the foregoing, and the Banks have
agreed to do so, all upon the terms and provisions and subject to the conditions
hereinafter set forth.
AGREEMENT
---------
In consideration of the foregoing and the mutual covenants and agreement
hereinafter set forth, the parties hereto mutually agree as follows:
A. AMENDMENTS
----------
1. Amendment of Section 1.1. The following definitions set forth in
---------------------------
Section 1.1 are hereby amended and restated as follows:
(a) "Commitment" means, with respect to each Bank, the amount set forth
----------
opposite the name of such Bank on Exhibit A hereto, as such amount may be
---------
further reduced from time to time pursuant to Section 2.10 or Section 2.11;
provided, however, to the extent that the amount of the aggregate Commitments of
----
the Banks as of April 1, 2001 exceeds $125,000,000, the Commitments of the Banks
shall be reduced ratably on such date by the amount of such excess.
(b) "Termination Date" means July 1, 2001.
-----------------
2. Amendment of Section 1.1. Section 1.1 is hereby amended by adding
--------------------------
the following new definitions:
(a) "Accounts Receivable" means, at any time, all accounts receivable of the
-------------------
Borrower other than Ineligible Accounts Receivable.
(b) "Borrowing Base" means, as of any day, an amount equal to a to be
---------------
determined percentage of Accounts Receivable plus a to be determined percentage
----
of Eligible PP&E as set forth in the applicable Borrowing Base Certificate
delivered to the Agent and the Lenders in accordance with the terms of Section
5.1(l), it being understood that (i) the foregoing to be determined percentages
and (ii) such additional eligible assets and amounts which may comprise the
Borrowing Base, shall be mutually determined by the Required Banks and the
Borrower; provided, however, that if no such mutual agreement can be reached
--------
with respect to the foregoing on or before July 15, 2000, such percentages and
or additional eligible assets shall be determined by the Required Banks, in
their sole discretion.
(c) "Borrowing Base Certificate" shall have the meaning assigned to such
----------------------------
term in Section 5.1(l).
(d) "Capitalized Software Costs" means the costs identified on the
----------------------------
Consolidated Statements of Cash Flows of the Borrower as "Capitalized internal
software development costs".
(e) "Collateral" means a collective reference to the collateral which is
----------
identified in, and at any time will be covered by, the Collateral Documents.
(f) "Collateral Documents" means a collective reference to the Security
---------------------
Agreement, the Pledge Agreement, the Mortgage and such other documents executed
and delivered in connection with the attachment and perfection of the Agent's
security interests and liens arising thereunder, including without limitation,
UCC financing statements and patent and trademark filings.
(g) "Dekru Acquisition" means the Acquisition by the Borrower of the stock
------------------
or assets of Dekru B.V., an entity organized under the laws of the Netherlands,
for aggregate consideration (including cash and non-cash consideration) not to
exceed $1,500,000.
(h) "Eligible PP&E" means, as of any date of determination and without
--------------
duplication, the aggregate net book value of all real estate, machinery and
equipment ("PP&E") owned by the Borrower or any of its Subsidiaries but
excluding in any event (i) PP&E which is (a) not subject to a perfected, first
priority Lien in favor of the Agent to secure the Obligations or (b) subject to
any other Lien that is not permitted under Section 5.3, (ii) PP&E which is not
in good condition or fails to meet standards for sale or use imposed by
governmental agencies, departments or divisions having regulatory authority over
such PP&E, (iii) PP&E which is not useable or salable at prices approximating
its depreciated value in the ordinary course of the business, (iv) PP&E located
outside of the
United States, (v) PP&E located at a location not owned by the Borrower or any
of its Subsidiaries with respect to which the Agent shall not have received a
landlord's, warehousemen's, bailee's or appropriate waiver satisfactory to the
Agent and (vi) PP&E which is leased or on consignment.
(i) "Ineligible Accounts Receivable" shall be mutually determined by the
--------------------------------
Required Banks and the Borrower; provided, however, that if no such mutual
--------
agreement can be reached with respect to the definition of "Ineligible Accounts
Receivable" on or before July 15, 2000, such definition shall be determined by
the Required Banks, in their sole discretion.
(j) "Mortgage" means, collectively those certain deeds of trust encumbering
--------
the fee interest of the Borrower and each Material Subsidiary in the real
property assets identified on Schedule A hereto, as amended, modified, restated
----------
or supplemented from time to time.
(k) "Obligations" means all Debt, obligations and liabilities of the
-----------
Borrower under this Agreement, the Term Loan or any of the Collateral Documents
to which the Borrower is a party, now existing or hereafter arising, due or to
become due, direct or indirect, absolute or contingent, howsoever evidenced,
held or acquired, as the Obligations may be modified, extended, renewed or
replaced from time to time.
(l) "Pledge Agreement" means a pledge agreement in form and substance
-----------------
satisfactory to the Agent to be executed in favor of the Agent by the Borrower
and each Material Subsidiary, as amended, modified, restated or supplemented
from time to time.
(m) "Property Acquisition Costs" means the costs identified on the
----------------------------
Consolidated Statements of Cash Flows of the Borrower as "Acquisition of
property and equipment".
(n) "Security Agreement" means a security agreement in form and substance
-------------------
satisfactory to the Agent to be executed in favor of the Agent by the Borrower
and each Material Subsidiary, as amended, modified, restated or supplemented
from time to time.
3. Amendment of Section 2.11. Section 2.11 is hereby amended and
----------------------------
restated as follows:
Termination, Mandatory Prepayment and Reduction of Commitments
--------------------------------------------------------------------
Mandatory Termination of Commitments.
--------------------------------
(a) The Commitments shall automatically terminate on the Termination Date
and any Loans then due and outstanding (together with accrued interest thereon)
shall be due and payable on such date.
(b) If at any time, the aggregate principal amount of Loans outstanding
shall exceed (i) the aggregate Commitments or (ii) to the extent the Borrowing
Base is then applicable, the lesser of the aggregate Commitments and the
Borrowing Base, the Borrower shall immediately make payment on the Loans in an
amount sufficient to eliminate the deficiency.
(c) If the Borrower shall issue for cash any additional equity (other than
in connection with the exercise of options or the issuance of equity in
connection with employee benefit plans) or issue debt securities for cash, the
Borrower shall promptly notify the Agent of the estimated net proceeds of such
issuance to be received by the Borrower. Promptly upon, and in no event later
than three Business Days after receipt by the Borrower of the net cash proceeds
of such issuance, the Borrower shall first prepay the Term Loan in an aggregate
amount equal to the amount of net proceeds until the Term Loan shall be repaid
in full, and if any excess then remains, such excess shall be applied to repay
any outstanding Loans. The Commitments will be reduced (i) to the extent that
the Borrowing Base is not applicable pursuant to the terms of Section 5.20(a) by
50% of any remaining excess and (ii) to the extent that the Borrowing Base is
applicable pursuant to the terms of Section 5.20(a), in a like amount until the
overadvance (if any) permitted with respect to the Loans shall be eliminated,
thereafter, the Commitments shall be reduced by 50% of any remaining excess.
4. Amendment of Section 5.1(a) and (b). Section 5.1(a) and (b) are
---------------------------------------
hereby amended and restated as follows:
(a) within 2 Business Days after the filing of each Form 10-K by the
Borrower with the Securities and Exchange Commission (and in any event no later
than 92 days after the end of each fiscal year of the Borrower), a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income and cash
flows and changes in stockholders' equity for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all
reported on in a manner acceptable to the Securities and Exchange Commission and
accompanied by a report of independent public accountants or nationally
recognized standing in scope and manner acceptable to the Securities and
Exchange Commission;
(b) within 2 Business Days after the filing of each Form 10-Q by the
Borrower with the Securities and Exchange Commission (and in any event no later
than 47 days after the end of each of the first three quarters of each fiscal
year of the Borrower), a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of income and cash flows for such quarter and for the
portion of the Borrower's fiscal year ended at the end of such quarter, setting
forth in the case of such statements of income and cash flows, in comparative
form the figures for the corresponding quarter and the corresponding portion of
the Borrower's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted
accounting principles and consistency by the chief financial officer or the
chief accounting officer of the Borrower;
5. Amendment of Section 5.1. Section 5.1 is hereby amended by adding a
------------------------
new Section 5.1(k), 5.1(l), 5.1(m) and 5.1(n):
"(k) to the extent the Borrowing Base is then applicable pursuant to the
terms of Section 5.20 hereof, within 47 days following the end of each fiscal
quarter, an accounts receivable aging and listing certified by the chief
financial officer of the Borrower to be true and correct as of the date thereof
and in form reasonably satisfactory to the Agent."
"(l) to the extent the Borrowing Base is then applicable pursuant to the
terms of Section 5.20 hereof, on or before the tenth Business Day of each month,
the Borrower shall submit, in form satisfactory to the Agent, a Borrowing Base
Certificate as of the last day of the prior month."
"(m) prior to the beginning of each fiscal month of the Borrower, a monthly
forecast of income and cash flows for such month, certified as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer or the chief accounting officer of the Borrower."
"(n) prior to April 30, 2000 and thereafter, simultaneously with the delivery of
each set of financial statements referred to in clauses (a) and (b) above, a
report signed by an executive officer of the Borrower setting forth (i) a list
of United States registration numbers for all patents, trademarks, service
marks, and copyrights awarded to the Borrower or any of its Material
Subsidiaries since the last day of the immediately preceding fiscal quarter or
fiscal year, as the case may be, and (ii) a list of all trademark applications,
service xxxx applications, and copyright applications submitted for registration
in the United States by the Borrower or any of its Material Subsidiaries since
the last day of the immediately preceding fiscal quarter or fiscal year, as the
case may be, and the status of each such application, all in such form as shall
be reasonably satisfactory to the Agent."
6. Amendment of Section 5.3(b). Section 5.3(b) of the Credit Agreement
---------------------------
is hereby amended and restated as follows:
(b) The Borrower will maintain, and will cause each Material Subsidiary to
maintain, or be covered under, (i) physical damage insurance on all real and
personal property on an all risks basis (including the perils of flood and
quake), covering the repair and replacement cost of all such property and
consequential loss coverage for extra expense and (ii) public liability
insurance (including products/completed operations liability coverage) all on
terms and conditions and in scope substantially commensurate with that which is
currently maintained as described on Schedule 5.3 hereto and evidenced by the
------------
certificate contemplated by clause (w) of the second following sentence and with
risk retention thereunder up to an amount which in the good faith business
judgement of the Borrower's or such Material Subsidiary's management could not
reasonably be expected to expose the Borrower or such Material Subsidiary to a
materially adverse noninsured loss. On or before, April 30, 2000, and at all
times thereafter, the Agent shall be named as loss payee or mortgagee, as its
interest may appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any Collateral. All such insurance
shall be provided by insurers having an A.M. Best policyholders rating of not
less than B+ or such other insurers as the Required Banks may approve in
writing. The Borrower will deliver to the Agent for distribution to each of the
Banks (w) on the date of the first Borrowing hereunder, a certificate dated such
date showing the amount of coverage as of such date, (x) upon request of any
Bank through the Agent from time to time full information as to the insurance
carried, (y) within seven Business Days of receipt of notice from any insurer a
copy of any notice of cancellation, alteration or material change in coverage
from that existing on the date of this Agreement and (z) forthwith upon receipt
thereof, notice of any cancellation or nonrenewal of coverage by the Borrower.
7. Amendment of Section 5.9. Section 5.9 of the Credit Agreement is
---------------------------
hereby amended by adding new Section 5.9(k):
"(k) Liens in favor of the Agent on behalf of the Banks arising under the
Collateral Documents."
8. Amendment of Section 5.11. Section 5.11 of the Credit Agreement is
--------------------------
hereby amended and restated as follows:
Leverage Ratio5.11 Leverage Ratio. The Borrower will not permit the Leverage
--------------- ---------------
Ratio at any time from (i) December 31, 1999 through but not including September
30, 2000 to exceed 5.5:1.0, (ii) September 30, 2000 through but not including
December 31, 2000 to exceed 3.5:1.0, and (iii) December 31, 2000 and at any time
thereafter, to exceed 2.5:1.0.
9. Amendment of Section 5.12. Section 5.12 of the Credit Agreement is
----------------------------
hereby amended and restated as follows:
Minimum Consolidated Tangible Net Worth Minimum Consolidated Tangible Net Worth.
--------------------------------------- ---------------------------------------
At any date, Consolidated Tangible Net Worth will not be less than (i)
$126,718,000 until September 29, 2000 and $196,718,000 on September 30, 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 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.
10. Amendment of Section 5.13. Section 5.13 of the Credit Agreement is
-------------------------
hereby amended and restated as follows:
Restricted Payments5.13 Restricted Payments. Restricted PaymentsNeither the
-------------------- -------------------- -------------------
Borrower nor any Subsidiary (i) will declare or make any Restricted Payment
(other than any dividend or other distribution from
a Subsidiary, direct or indirect, to the Borrower) or (ii) will optionally
prepay, defease or purchase any Debt of the Borrower or any Subsidiary other
than (x) the Loans or the Term Loan or (y) any other Debt of the Borrower
incurred for working capital purposes provided that the aggregate amount of such
-------- ----
Debt prepaid, defeased or purchased is less than $15,000,000.
11. Amendment of Section 5.14(d). Section 5.14(d) of the Credit
-------------------------------
Agreement is hereby amended and restated as follows:
Restricted Payments(d) (i) any Investment made prior to March 31, 2000
-------------------
in compliance with Section 5.14(d) prior to the amendment hereby and (ii)
Restricted Payments any Investment with respect to the Dekru Acquisition.
---------------
12. Amendment of Section 5.16. Section 5.16 of the Credit Agreement is
-------------------------
hereby amended and restated as follows:
Additional Guarantors Additional Guarantors. The Borrower shall from time to
---------------------- ---------------------
time cause each Subsidiary of the Borrower or other entity that is not a
Material Subsidiary on the date hereof but becomes a Material Subsidiary after
the date hereof (whether by acquisition of capital stock by the Borrower or
otherwise) to (a) become party hereto as guarantor by executing a supplement
hereto in form and substance satisfactory to the Agent, such supplement to be
executed by such Material Subsidiary within 10 days after the date on which the
Borrower acquires or forms such Material Subsidiary, or a Subsidiary not
originally a Guarantor becomes a Material Subsidiary, (b) cause 100% of the
issued and outstanding capital stock of such Material Subsidiary to be delivered
to the Agent (together with undated stock powers signed in blank, if applicable)
and pledged to the Agent pursuant to an appropriate pledge agreement(s) in
substantially the form of the Pledge Agreement and otherwise in form reasonably
acceptable to the Agent and (c) deliver such other documentation as the Agent
may reasonably request in connection with the foregoing, including without
limitation, documentation to ensure that the Agent has a first priority
perfected Lien in the personal and real property owned by such Material
Subsidiary, certified resolutions and other authority documents of such Material
Subsidiary and favorable opinions of counsel to such Material Subsidiary (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above), all in form, content and
scope reasonably satisfactory to the Agent.
13. Amendment of Section 5.17. Section 5.17 of the Credit Agreement is
-------------------------
hereby amended and restated as follows:
Limitation on Non-Cash Charges Additional Guarantors. The Borrower will not
--------------------------------- ---------------------
incur non-cash charges that would exceed (i) $25,000,000 in the aggregate with
--
respect to the Borrower and its Consolidated Subsidiaries from
and after November 1, 1999 through and including March 31, 2000 and (ii)
$15,000,000 in the aggregate with respect to the Borrower and its Consolidated
Subsidiaries from and after April 1, 2000 through and including the Termination
Date, other than (A) depreciation and amortization expensed in the ordinary
course of business determined in accordance with generally accepted accounting
principles; and (B) any acquisition related charges of intangibles determined in
accordance with generally accepted accounting principles.
14. Addition of New Section 5.18. A new Section 5.18 is hereby added
------------------------------
as follows:
SECTION 5.18. Pledged Assets.
---------------
On or before April 30, 2000, or such later date as the Agent may reasonably
determine, the Borrower will cause, and will cause each Material Subsidiary to
cause (i) all of its owned personal property located in the United States and
(ii) all of its owned real property located in the United States deemed to be
material by the Agent or the Required Banks in its or their sole reasonable
discretion, to be subject at all times to first priority, perfected Liens in
favor of the Agent to secure the Borrower's Obligations in accordance with the
terms and conditions of the Collateral Documents, subject in any case to Liens
permitted under Section 5.9. Without limiting the generality of the above, the
Borrower will cause (i) 100% of the issued and outstanding capital stock of each
domestic Material Subsidiary directly owned by the Borrower or any other
Material Subsidiary of the Borrower and (ii) 65% (or such greater percentage
which would not result in material adverse tax consequences) of the issued and
outstanding capital stock entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) and 100% of the issued and outstanding capital stock not
entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of
each foreign Subsidiary directly owned by the Borrower or any other Material
Subsidiary of the Borrower to be subject at all times to a first priority,
perfected Lien in favor of the Agent to secure the Borrower's Obligations in
accordance with the terms and conditions of the Collateral Documents or such
other security documents as the Agent shall reasonably request.
15. Addition of New Section 5.19. A new Section 5.19 is hereby added
------------------------------
as follows:
SECTION 5.19. Real Property Collateral.
--------------------------
On or before April 30, 2000, or such later date as the Agent may reasonably
determine, the Borrower and each other Material Subsidiary shall, with respect
to the real property assets identified on Schedule A hereto and deemed to be
----------
material by the Agent or the Required Banks in its or their sole reasonable
discretion, deliver to the Agent the following:
(a) fully executed and notarized Mortgages;
(b) title reports obtained by the Borrower in respect of the real property
subject to the Mortgages;
(c) maps or plats of an as-built survey of the sites of the real property
covered by the Mortgages certified to the Agent and the title insurance company
issuing the
policy referred to in clause (d) below (the "Title Insurance Company") in a
-----------------------
manner reasonably satisfactory to each of the Agent and the Title Insurance
Company, dated a date reasonably satisfactory to each of the Agent and the Title
Insurance Company by an independent professional licensed land surveyor, which
maps or plats and the surveys on which they are based shall be sufficient to
delete any standard printed survey exception contained in the applicable title
policy and be made in accordance with the Minimum Standard Detail Requirements
for Land Title Surveys jointly established and adopted by the American Land
Title Association and the American Congress on Surveying and Mapping in 1992,
and, without limiting the generality of the foregoing, there shall be surveyed
and shown on such maps, plats or surveys the following: (i) the locations on
such sites of all the buildings, structures and other improvements and the
established building setback lines; (ii) the lines of streets abutting the sites
and width thereof; (iii) all access and other easements appurtenant to the sites
necessary to use the sites; (iv) all roadways, paths, driveways, easements,
encroachments and overhanging projections and similar encumbrances affecting the
site, whether recorded, apparent from a physical inspection of the sites or
otherwise known to the surveyor; (v) any encroachments on any adjoining property
by the building structures and improvements on the sites; and (vi) if the site
is described as being on a filed map, a legend relating the survey to said map;
(d) an ALTA mortgagee title insurance policy issued by the Title Insurance
Company, in an amount satisfactory to the Agent, assuring the Agent that the
each Mortgage creates a valid and enforceable first priority mortgage lien on
the real property subject to the Mortgage, free and clear of all defects and
encumbrances except Liens permitted by Section 5.9, which mortgage policy shall
be in form and substance reasonably satisfactory to the Agent and shall provide
for affirmative insurance and such reinsurance as the Agent may reasonably
request, all of the foregoing in form and substance reasonably satisfactory to
the Agent;
(e) evidence as to (i) whether any of the mortgaged properties are in an
area designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards (a "Flood Hazard Property") and (ii) if any mortgaged
---------------------
property is a Flood Hazard Property, (A) whether the community in which such
mortgaged property is located is participating in the National Flood Insurance
Program, (B) the Borrower's written acknowledgment of receipt of written
notification from the Agent (1) as to the fact that such mortgaged property is a
Flood Hazard Property and (2) as to whether the community in which such Flood
Hazard Property is located is participating in the National Flood Insurance
Program and (C) copies of insurance policies or certificates of insurance of the
Borrower evidencing flood insurance satisfactory to the Agent and naming the
Agent as sole loss payee; and
(f) evidence reasonably satisfactory to the Agent that the mortgaged
properties, and the uses of the mortgaged properties, are in compliance in all
material respects, as relevant for purposes of this Agreement, with all
applicable laws, regulations and ordinances including without limitation health
and environmental protection laws, erosion control ordinances, storm drainage
control laws, doing business and/or licensing laws, zoning laws (the evidence
submitted as to zoning should include the zoning designation made for the
mortgaged properties, the permitted uses of the mortgaged
properties under such zoning designation and zoning requirements as to parking,
lot size, ingress, egress and building setbacks) and applicable laws regarding
access and facilities for disabled persons including, but not limited to, the
Federal Architectural Barriers Act, the Fair Housing Amendments Act of 1988, the
Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.
16. Addition of New Section 5.20. A new Section 5.20 is hereby added
------------------------------
as follows:
SECTION 5.20. Borrowing Base and Field Examination.
----------------------------------------
(a) If the Term Loan is not repaid in full by July 15, 2000, the aggregate
principal amount of the Loans outstanding at any time shall not exceed the
lesser of (i) the aggregate Commitments of the Banks and (ii) the Borrowing
Base.
(b) The Borrower and each of its Subsidiaries shall permit the Agent (or a
third party satisfactory to the Agent) to conduct a written business audit of
the accounts receivable, inventory, payables, controls and systems of the
Borrower and its Subsidiaries at a frequency to be determined in the sole
discretion of the Agent; provided that, the Borrower shall not be required to
--------
pay for more than four such field examinations in any one calendar year. If the
results of any of such audits are not satisfactory to the Agent, in its
reasonable discretion, the Borrower covenants and agrees to cooperate in good
faith with the Agent to develop a plan of action that will correct the
deficiencies identified by the Agent within 180 days of the completion of such
audit.
17. Addition of New Section 5.21. A new Section 5.21 is hereby added
------------------------------
as follows:
SECTION 5.21. 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 $84,000,000 and
(b) fiscal year 2001 to exceed $93,000,000.
18. Amendment of Section 6.1. Section 6.1 of the Credit Agreement is
--------------------------
hereby amended by adding new Section 6.1(m):
"(m) any of the Collateral Documents shall fail to be in full force and effect
or to give the Agent and/or the Banks the Liens, rights, powers and privileges
purported to be created thereby, or the Borrower or any Subsidiary of the
Borrower shall so state in writing."
19. Amendment to Pricing Schedule. The Pricing Schedule shall be
--------------------------------
amended and restated as per the attachment hereto.
B. REPRESENTATIONS AND WARRANTIES
--------------------------------
The Borrower hereby represents and warrants 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 and the information contained
in the preliminary draft of the December 31, 1999 financial statements of the
Borrower, the representations and warranties of the Borrower 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 of this Amendment have
been duly authorized by all necessary corporate action.
C. EFFECTIVENESS; CONDITIONS
--------------------------
This Amendment will become effective as of December 31, 1999 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. On or before March 31, 2000, a copy of a resolution passed by the
Board of Directors of the Borrower and each of the Guarantors, certified by the
Secretary or an Assistant Secretary of the Borrower and each of the Guarantors
as being in full force and effect on the date hereof, authorizing the execution,
delivery and performance of the Credit Agreement as hereby amended; provided,
however, with respect to Policy Management Systems Investments, Inc., such
certified resolution shall be provided to the Agent no later than April 28,
2000.
2. On or before March 31, 2000, a certificate of incumbency certifying
the names of the officers of the Borrower and Guarantors authorized to sign this
Amendment, together with the true signatures of such officers; provided,
however, with respect to Policy Management Systems Investments, Inc., such
certificate of incumbency shall be provided to the Agent no later than April 28,
2000.
3. On or before March 30, 2000, executed counterparts of this
Amendment.
Borrower shall pay the Agent for the account of the consenting Banks an
amendment fee equal to 1.00% of the Commitments payable to the Banks on April 3,
2000 in accordance with their Pro Rata Share.
D. MISCELLANEOUS
-------------
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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written.
POLICY MANAGEMENT SYSTEMS
CORPORATION
By: /S/ G. Xxxxx Xxxxxx
----------------------
Title: Chief Executive Officer
--------------------------
BANK OF AMERICA, N.A.
By:/S/ Xxxxxxx X. XxXxxxxx
--------------------------
Title: Managing Director
--------------------
WACHOVIA BANK, N.A.
By:/S/ Xxxx Xxxxxx .
----------------- -
Title: Asst. Vice President
-----------------------
FIRST UNION NATIONAL BANK
By:/S/Xxxxxxxx X. Wesssinger
---------------------------
Title: Senior Vice President
-----------------------
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By:
Title:
By:
Title:
DAI-ICHI KANGYO BANK, LTD.
By: /S/ Xxxxxx Xxxxx
------------------
Title: Assistant Vice President
--------------------------
THE FUJI BANK, LIMITED
By:
Title:
ACKNOWLEDGED AND AGREED:
POLICY MANAGEMENT SYSTEMS
CORPORATION
CYBERTEK CORPORATION
PMSC LIMITED
CYBERTEK SOLUTIONS, L.P.
By: POLICY MANAGEMENT
SYSTEMS CORPORATION;
Its General Partner
THE LEVERAGE GROUP
By: /S/ G. Xxxxx Xxxxxx
----------------------
Title: Director
--------
BANK OF AMERICA, N.A.
By:/S/ Xxxxxxx X. XxXxxxxx
--------------------------
Title: Managing Director
--------------------
ACKNOWLEDGED AND AGREED:
POLICY MANAGEMENT SYSTEMS
INVESTMENTS, INC.
By: /S/ Xxxxxxxxx Xxxxxx
------------------------
Title: President
---------
EXHIBIT A
---------
BANK COMMITMENTS
Commitment
----------
BANK OF AMERICA, N.A. $ 54,000,000
WACHOVIA BANK, N.A. $ 45,000,000
FIRST UNION NATIONAL BANK $ 31,500,000
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS
BRANCH $ 22,500,000
DAI-ICHI KANGYO BANK, LTD. $ 18,000,000
THE FUJI BANK, LIMITED $ 9,000,000
----------------
$ 180,000,000
PRICING SCHEDULE
Each of "Eurodollar Margin" and "Facility Fee Rate" means, for any date,
the rates set forth below:
Euro-Dollar Margin (Retroactive to January 1, 2000) 2.75%
Facility Fee Rate (Retroactive to January 1, 2000) .50%
