Exhibit 10.1
SECOND AMENDMENT
THIS SECOND AMENDMENT, dated as of September 30, 2004 (this "Second
Amendment"), to the Credit Agreement referred to below is among ANTEON
INTERNATIONAL CORPORATION, a Delaware corporation (the "Borrower"), ANTEON
CORPORATION, a Virginia corporation (together with the Borrower, the
"Borrowers"), and the Lenders party hereto.
WITNESSETH:
WHEREAS, the Borrowers, Bank of America, N.A., as Administrative Agent
and Issuing Bank, Citizens Bank of Pennsylvania, as Collateral Agent and
Swingline Lender, and each lender from time to time party thereto (collectively,
the "Lenders"), are parties to the Amended and Restated Credit Agreement, dated
as of December 19, 2003 (as amended by that certain First Amendment, dated as of
March 1, 2004, and as otherwise amended, supplemented, amended and restated or
otherwise modified and in effect on the date hereof, the "Credit Agreement";
capitalized terms used herein and not otherwise defined are used herein as
defined in (or by reference in) the Credit Agreement);
WHEREAS, the Borrowers have requested that the Lenders further amend
the Credit Agreement by (i) decreasing the Applicable Percentage with respect to
the Term Loans (other than any Incremental Term Loans), (ii) increasing the Term
Loan Commitments of the Increasing Term Lenders and (iii) amending certain other
provisions of the Credit Agreement, in each case, as more specifically set forth
herein; and
WHEREAS, the Lenders have agreed pursuant to their consents, subject to
the terms and conditions set forth herein, to amend the Credit Agreement as more
specifically set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
and for other valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
Part I
AMENDMENTS
Effective on the Second Amendment Effective Date, the Credit Agreement
is hereby amended in accordance with this Part I.
SUBPART 1.1 The Preamble to the Credit Agreement is hereby amended by
inserting the sentence "The proceeds of the Additional Term Loans will be used
by the Borrowers solely to finance Permitted Acquisitions, and to pay fees and
expenses related thereto, and for general corporate purposes." as the final
sentence of the fourth paragraph of such Preamble.
SUBPART 1.2 The following definitions in Article I of the Credit Agreement
are hereby amended as set forth below:
1.2.1 Clauses (a) and (b) of the definition of "Applicable Percentage"
is hereby amended in its entirety to read as follows (for reference, the
portions of such clauses amended hereby are italicized):
"(a) with respect to any Eurodollar Term Loan, 1.75%, (b) with respect
to any ABR Term Loan, 0.50%,"
1.2.2 The definition of "Term Loan Commitment" is hereby amended in
its entirety to read as follows:
"Term Loan Commitment" shall mean, with respect to each Lender, (i) the
commitment of such Lender to make Term Loans hereunder as set forth on Schedule
2.01, (ii) the commitment of such Lender as set forth in the Assignment and
Acceptance pursuant to which such Lender assumed its Term Loan Commitment, (iii)
the commitment of such Lender, if any, to make Incremental Term Loans hereunder
pursuant to Section 2.24, and (iv) the commitment of such Lender, if any, to
make Additional Term Loans hereunder pursuant to Section 2.01, as applicable, as
the same may be reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 9.04. Unless the context shall
otherwise require, upon the effectiveness of any Incremental Term Loan
Commitment or any Additional Term Loan Commitment, the term "Term Loan
Commitment" shall include such Incremental Term Loan Commitment and/or such
Additional Term Loan Commitment.
SUBPART 1.3 Article I of the Credit Agreement is amended by inserting the
following defined terms in their appropriate alphabetical location therein:
"Additional Term Loan Commitment" shall mean the commitment of any Lender,
established pursuant to Section 2.01, to make Additional Term Loans to the
Borrowers.
"Additional Term Loans" shall mean the Term Loans made by the Increasing
Term Lenders to the Borrowers on the Second Amendment Effective Date in an
aggregate principal amount of $16,125,000.
"Increasing Term Lenders" shall mean those Lenders having an Additional
Term Loan Commitment.
"Second Amendment Effective Date" shall mean the date on which the Second
Amendment, dated as of September 30, 2004, to this Agreement became effective
pursuant to its terms.
SUBPART 1.4 Section 2.01 of the Credit Agreement is hereby amended in its
entirety to read as follows (for reference, the portions of Section 2.01 amended
hereby are italicized):
"Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees,
severally and not jointly, (a) if such Lender has a Term Loan
Commitment, to make a Term Loan to the Borrowers on the Restatement
Date in a principal amount not to exceed its Term Loan Commitment in
effect on such date, (b) if such Lender has a Revolving Credit
Commitment, to make Revolving Loans to the Borrowers, at any time and
from time to time on or after the Closing Date and until the earlier of
the Revolving Credit Maturity Date and the termination of the Revolving
Credit Commitment of such Lender in accordance with the terms hereof,
in an aggregate principal amount at any time outstanding that will not
result in such Lender's Revolving Credit Exposure exceeding such
Lender's Revolving Credit Commitment, and (c) if such Lender has an
Incremental Term Loan Commitment, to make Incremental Term Loans to the
Borrowers, in an aggregate principal amount not to exceed its
Incremental Term Loan Commitment. Within the limits set forth in clause
(b) of the preceding sentence and subject to the terms, conditions and
limitations set forth herein, the Borrowers may borrow, pay or prepay
and reborrow Revolving Loans. Amounts paid or prepaid in respect of
Term Loans may not be reborrowed. The Borrowers and the Revolving
Credit Lenders acknowledge the making of Revolving Loans prior to the
Restatement Date and agree that, to the extent outstanding on the
Restatement Date, such Revolving Loans shall continue to be outstanding
pursuant to the terms and conditions of this Agreement and the other
Loan Documents. Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, each Increasing
Term Lender agrees, severally and not jointly, to make Additional Term
Loans on the Second Amendment Effective Date to the Borrowers in a
principal amount not to exceed its Additional Term Loan Commitment in
effect on the Second Amendment Effective Date. The Additional Term
Loans made by the Increasing Term Lenders (i) shall be "Term Loans" and
part of the "Obligations" for all purposes, in each case, together with
the Term Loans made on the Restatement Date and (ii) shall be "Secured
Parties", pari passu with all other Secured Parties. Automatically upon
the Increasing Term Lenders making the Additional Term Loans, the
Administrative Agent shall adjust its book and records to reflect the
pro-rata allocation of all Term Loans outstanding as of the close of
business on the Second Amendment Effective Date among Term Lenders
according to their respective Term Loan Commitment in effect on such
date. Each of the parties hereto hereby agrees that the Administrative
Agent may take any and all action as may be reasonably necessary to
ensure that the Additional Term Loans are included in each Borrowing of
outstanding Term Loans on a pro rata basis. This may be accomplished at
the discretion of the Administrative Agent by requiring each
outstanding Eurodollar Term Borrowing to be converted into an ABR Term
Borrowing on the date of the making of the Additional Term Loans, or by
allocating a portion of each Additional Term Loan to each outstanding
Eurodollar Term Borrowing on a pro rata basis, even though as a result
thereof such Additional Term Loan may effectively have a shorter
Interest Period than the Term Loans included in the Borrowing of which
they are a part (and notwithstanding any other provision of this
Agreement that would prohibit such an initial Interest Period). Any
conversion of Eurodollar Term Loans to ABR Term Loans required by the
preceding sentence shall be subject to Section 2.16."
SUBPART 1.5 Section 2.11(a) of the Credit Agreement is hereby amended by
replacing the parenthetical in the last sentence thereof in its entirety to read
as follows:
"(as adjusted from time to time pursuant to Section 2.01, 2.12,
2.13(f) and 2.24(d))"
SUBPART 1.6 Section 5.04(f) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(f) concurrently with any delivery of financial statements under
paragraph (a) or (b) of this Section, a certificate in the form of Exhibit
I (a "Compliance Certificate") of the Financial Officer (i) certifying that
no Event of Default or Default has occurred or, if such an Event of Default
or Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto and
(ii) setting forth computations in detail reasonably satisfactory to the
Agents demonstrating compliance with the covenants contained in Sections
6.01(c), 6.01(f), 6.01(g), 6.01(h), 6.01(i), 6.01(j), 6.01(k), 6.01(l),
6.04(d), 6.04(h), 6.04(k), 6.04(p), 6.05(b), 6.06, 6.07(d), 6.14(b), 6.08
(in the case of paragraph (a)), 6.09, 6.10, 6.11, 6.12 and 6.13, and, in
the case of a certificate delivered with the financial statements required
by paragraph (a) above, setting forth the Borrower's calculation of Excess
Cash Flow;"
SUBPART 1.7 Exhibit I of the of the Credit Agreement is hereby amended by
(i) deleting the phrase "[KPMG LLP] [independent public accountants]" from
clause (a) of the Annual Compliance Certificate located therein and replacing it
with the term "Borrower" and (ii) deleting the phrase "[KPMG LLP,] [independent
public accountants]" from the signature block of the Annual Compliance
Certificate located therein and replacing it with the phrase "[certifying
Financial Officer]".
SUBPART 1.8 Section 6.13 of the Credit Agreement is amended in its entirety
to read as follows:
"SECTION 6.13. Asset Coverage Ratio. Permit, as of the date of each
Credit Event and as of the last day of each fiscal quarter of the Borrower,
the ratio of (a) the Net Value of Eligible Accounts Receivables (after
giving pro forma effect to the acquisition of any Eligible Accounts
Receivable during such fiscal quarter) on such date to (b) the Revolving
Credit Exposure on such date to be less than 1.10 to 1.0."
Part II
CONDITIONS TO EFFECTIVENESS
SUBPART 2.1 Effective Date. The amendments contemplated hereby shall become
effective when each of the conditions set forth in Subparts 2.2, 2.3 and 2.4
have been satisfied, and in any event after giving effect to the September 30,
2004 amortization payment on the Term Loans outstanding on the date hereof (the
"Second Amendment Effective Date).
SUBPART 2.2 Execution of Counterparts. The Administrative Agent shall have
received (i) counterparts of this Second Amendment duly executed and delivered
on behalf of the Borrowers and the Reaffirming Parties, and (ii) a consent,
substantially in the form set forth as Exhibit A to this Second Amendment (each,
a "Lender Consent", and each Lender executing a Lender Consent, a "Consenting
Lender"), duly executed and delivered from each of the following with respect
the relevant provisions of this Second Amendment (a) each Term Lender, with
respect to the amendments contemplated by Subpart 1.2, (b) each Increasing Term
Lender, with respect to the amendments contemplated by Subpart 1.4 and (c) the
Required Lenders (which may include the Increasing Term Lenders), with respect
to the amendments contemplated by Subparts 1.1 and 1.3 through 1.7.
SUBPART 2.3 Legal Details, etc.. The Administrative Agent and its counsel
shall have received all information, and such counterpart originals or such
certified or other copies of such materials, as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
effectiveness of this Second Amendment shall be satisfactory to the
Administrative Agent and its counsel. All documents executed or submitted
pursuant hereto or in connection herewith shall be reasonably satisfactory in
form and substance to the Administrative Agent and its counsel.
SUBPART 2.4 Fees, Expenses, etc.. The Borrowers shall have paid all fees,
expenses, charges and disbursements of the Administrative Agent and its
Affiliates with respect to this Second Amendment, including, without limitation,
Mayer, Brown, Xxxx & Maw LLP, counsel to the Administrative Agent, to the extent
invoiced on the Second Amendment Effective Date.
Part III
MISCELLANEOUS PROVISIONS
SUBPART 3.1 Cross-References. References in this Second Amendment to any
Part or Subpart are, unless otherwise specified, to such Part or Subpart of this
Second Amendment.
SUBPART 3.2 Loan Document Pursuant to Credit Agreement. This Second
Amendment and each Lender Consent is a "Loan Document" executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated therein) be
construed, administered and applied in accordance with all of the terms and
provisions of the Credit Agreement, as amended hereby, including Article IX
thereof.
SUBPART 3.3 Successors and Assigns. This Second Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 3.4 Full Force and Effect; Limited Amendment and Waiver. Except as
expressly amended or waived hereby, all of the representations, warranties,
terms, covenants, conditions and other provisions of the Loan Documents shall
remain unchanged and shall continue to be, and shall remain, in full force and
effect in accordance with their respective terms. The amendments and waivers set
forth herein shall be limited precisely as provided for herein to the provisions
expressly amended or waived herein and shall not be deemed to be an amendment
to, waiver of, consent to or modification of any other term or provision of any
Loan Document referred to therein or herein or of any transaction or further or
future action on the part of any Obligor which would require the consent of the
Lenders under any of the Loan Documents.
SUBPART 3.5 Governing Law. THIS SECOND AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SUBPART 3.6 Execution in Counterparts. This Second Amendment may be
executed in any number of counterparts by the parties hereto, each of which
counterparts when so executed shall be an original, but all the counterparts
shall together constitute one and the same agreement. The parties hereto agree
that delivery of an executed counterpart of a signature page to this Second
Amendment electronically shall be effective as delivery of an original executed
counterpart of this Second Amendment.
SUBPART 3.7 Representations and Warranties; No Default. In order to induce
the Lenders to execute and deliver Lender Consents in connection with this
Second Amendment, the Borrowers hereby represent and warrant to the Lenders
that, on the Second Amendment Effective Date, before and after giving effect to
each amendment contained in Part I of this Second Amendment, all statements set
forth herein and in Section 4.01(b) and (c) of the Credit Agreement are true and
correct as of such date, except to the extent that any such statement expressly
relates to an earlier date (in which case such statement was true and correct on
and as of such earlier date).
SUBPART 3.8 Subsidiary Reaffirmation.
3.8.1 Each Subsidiary of the Borrowers (each a "Reaffirming Party" and,
collectively, the "Reaffirming Parties") identified on the signature pages to
this Second Amendment acknowledges its receipt of this Second Amendment and its
review of the terms and conditions hereof and consents to the terms and
conditions hereof and the transactions contemplated hereby. Each Reaffirming
Party hereby (i) affirms and confirms its guarantees, pledges, grants and other
commitments under the Subsidiary Guarantee Agreement and the Security Documents,
as applicable, (ii) affirms and confirms its obligations to indemnify and
perform the other commitments and obligations under the Indemnity, Subrogation
and Contribution Agreement, and (iii) agrees that, notwithstanding the
effectiveness of this Second Amendment, (x) the Subsidiary Guarantee Agreement,
each of the Security Documents and the Indemnity, Subrogation and Contribution
Agreement continues to be in full force and effect and (y) all guarantees,
pledges, grants and other commitments thereunder shall continue to be in full
force and effect and shall accrue to the benefit of the Secured Parties. Each
Reaffirming Party further acknowledges that the Additional Term Loans shall be
"Obligations" under each of the Subsidiary Guarantee Agreement, the Pledge
Agreement and the Security Agreement.
3.8.2 Each Reaffirming Party hereby represents and warrants to each Secured
Party as follows, which representation and warranties shall survive execution
and delivery of this Second Amendment:
(a) Such reaffirming Party is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization;
(b) Such Reaffirming Party has all requisite corporate or other
comparable power and authority to execute, deliver and carry out the terms
and provisions of this Second Amendment and has taken all necessary action
to authorize the execution, delivery and performance by it of this Second
Amendment;
(c) Such Reaffirming Party has duly executed and delivered this Second
Amendment, and this Second Amendment constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms;
and
(d) The representations and warranties of such Reaffirming Party
contained in each of the Loan Documents are true and correct in all
material respects on and as of the date hereof with the same effect as
though made on the date hereof, except to the extent that such
representation and warranties expressly relate to an earlier date.
SUBPART 3.9 Increasing Term Lenders. Each party hereto agrees that each
Increasing Term Lender party hereto, but not party to the Credit Agreement prior
to the Second Amendment Effective Date, shall be deemed a party to the Credit
Agreement (as amended hereby) as a Term Lender for all purposes on the Second
Amendment Effective Date. Each Increasing Term Lender agrees, pursuant to the
execution of its Lender Consent, that it will perform in accordance within their
terms all the obligations which by the terms of the Credit Agreement (as amended
hereby) are required by it as a Lender.
[Remainder of Page Intentionally Left Blank. Signatures Follow.]
Signature page to Second Amendment, dated as of September 30, 2004,
to the Credit Agreement, dated as of December 19, 2003
for Anteon International Corporation and Anteon Corporation
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers hereunto duly authorized
as of the day and year first above written.
ANTEON INTERNATIONAL CORPORATION, as a Borrower and a Reaffirming
Party
By: \s\ Xxxxx Xxxxx
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Title: Xxxxx Xxxxx, Treasurer
ANTEON CORPORATION, as a Borrower and a Reaffirming Party
By: \s\ Xxxxx Xxxxx
-----------------------------------------------------------
Title: Xxxxx Xxxxx, Treasurer
AC CAPITAL MANAGEMENT, INC., as a Reaffirming Party
By: \s\ Xxxxxx Xxxxxx
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Title: Xxxxxx Xxxxxx, Vice President
INTEGRATED MANAGEMENT SERVICES, INC., as a Reaffirming Party
By: \s\ Xxxxxx Xxxxxx
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Title: Xxxxxx Xxxxxx, Vice President
SIMULATION TECHNOLOGIES, INC., as a Reaffirming Party
By: \s\ Xxxxxx Xxxxxx
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Title: Xxxxxx Xxxxxx, Vice President
BANK OF AMERICA, N.A., as Administrative Agent on behalf of each
Consenting Lender
By: \s\ Xxxxx X Xxxxxxx
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Title: Xxxxx X Xxxxxxx, Agency Officer Assistant Vice President
BANK OF AMERICA, N.A., as Issuing Bank, and, individually, as a Lender
By: \s\ Xxxxxxx X. Xxxx
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Title: Xxxxxxx X. Xxxx, Senior Vice President
