EXHIBIT 10.8A
FIRST AMENDMENT
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of November 28,
2000, by and among iGate Capital Corporation (the "Borrower"), PNC Bank,
National Association and National City Bank of Pennsylvania.
W I T N E S S E T H T H A T:
WHEREAS, the Borrower, PNC Bank, National Association, as Agent, Swing
Loan Lender, Issuing Bank and Lender, and National City Bank of Pennsylvania, as
Lender, are parties to a Credit Agreement dated as of August 1, 200O (the
"Credit Agreement"); and
WHEREAS, the parties wish to amend the Credit Agreement in several
respects.
NOW, THEREFORE, the parties hereto, in consideration of the
premises and covenants contained herein and intending to be legally bound
hereby, agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings assigned to such terms in the Credit
Agreement.
(a) Borrowing Base. The definition of "Borrowing Base" is amended to read
in its entirety as follows:
"Borrowing Base" shall mean the lesser of (a) $50,000,000 and (b)
sum of(i) 85% of Qualified Accounts and (ii) 90% of Pledged Cash
and Cash Equivalents.
(b) Derivatives. The following definition is added:
"Derivatives" means, including without limitation, (a)
any transaction (including an agreement with respect
thereto) now existing or hereafter entered into between
a Lender or an Affiliate of a Lender and the Borrower
or any Loan Party, including but not limited to any
Interest Rate Hedge Agreement, which is a rate swap
transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar
transaction (including any option with respect to any
of these transactions); (b) any combination of these
transactions; and (c) any agreements, instruments,
certificates or documents contemplated thereby, as any
of the same may be supplemented or amended from time to
time.
(c) Financial Assets Pledge Agreement. The following definition is
added:
"Financial Assets Pledge Agreement" shall mean a Pledge
Agreement dated as of _________,2000 between the
Borrower and the Agent pursuant to which the Borrower
pledged as security for its obligations under the
Credit Agreement and the other Loan Documents its
interest in cash and Cash Equivalents maintained in a
controlled account at BlackRock Institutional
Management Corporation.
(d) Lenders. The definition of Lenders is amended to read in its
entirety as follows:
"Lenders" shall mean the financial institutions named
on Schedule 1.01(a) and their respective successors and
assigns as permitted hereunder, in their capacities as
a lender, a Swing Loan Lender, an Issuing Bank, a party
to a Derivative, or otherwise, each of which is
referred to as a Lender.
(e) Loan Documents. The definition of Loan Documents is amended to read
in its entirety as follows:
"Loan Documents" shall mean this Agreement, the Notes,
any Application for Letter of Credit (and any
reimbursement agreement executed in connection
therewith), the Subsidiary Guarantees, the Pledge
Agreements, the Security Agreements, any Derivative and
any other agreements, instruments, certificates or
documents contemplated thereby, as any of the same may
be supplemented or amended from time to time in
accordance herewith or therewith; and Loan Document
shall mean any of the Loan Documents.
(f) Permitted Liens. Clause (1) of the definition of Permitted Liens is
amended to read in its entirety as follows:
(I) Liens granted to any Lender pursuant to a
Derivative; provided, however, that (i) the aggregate
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amount of such Derivatives shall not exceed fifty
percent (50%) of the maximum amount of Loans permitted
under this Agreement, and (ii) each Lender party to a
Derivative shall calculate the credit exposure covered
by such Derivatives in a reasonable and customary
manner, and (iii) each Derivative must conform to ISDA
regulations and be acceptable to the Agent with respect
to intercreditor issues;
(g) Pledge Agreements. The definition of Pledge Agreements is amended to
read in its entirety as follows:
"Pledge Agreements" shall mean (a) a pledge agreement
executed by the Borrower or by any Subsidiary Guarantor
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holding the capital stock of another Subsidiary
substantially in the form of Exhibit G, and (b) the
Financial Assets Pledge Agreement, together in each
case with all extensions, renewals, amendments,
substitutions, and replacements thereto and thereof.
(h) Pledged Cash and Cash Equivalents. A definition is added, as
follows:
"Pledged Cash and Cash Equivalents" shall mean cash and
Cash Equivalents in which the Agent has, for the
benefit of the Lenders, a prior perfected security
interest pursuant to the Financial Assets Pledge
Agreement.
2. Revolving Credit.
(a) The last sentence of Section 2.05(a) is amended to read
in its entirety as follows:
"Each such Lender shall make its Ratable Share of such
disbursement available at the Agent's principal office
in immediately available funds no later than 1:OO p.m.,
Pittsburgh time, on the date of the requested
disbursement."
(b) The first sentence of Section 2.06(a) is amended to
read in its entirety as follows:
"Subject to Section 9.03, the Agent shall, promptly
after receipt by it of a Loan Request pursuant to
Section 2.05 (but not later than noon, Pittsburgh time,
on the Borrowing Date for same day funding, 2:00 p.m.,
Pittsburgh time, on the third Business Day preceding
any Borrowing Date for which any Portion of the Loans
to be made on such Borrowing Date is to bear interest
at the Euro-Rate Option in Dollars, and 2:00 p.m.,
Pittsburgh time, on the fourth Business Day preceding
any Borrowing Date for which any Portion of the Loans
to be made on such Borrowing Date is to bear interest
at the Euro Rate Option in an Optional Currency),
notify the Lenders of its receipt of such Loan Request
specifying: (a) the proposed Borrowing Date and the
time and method of disbursement of such Loan; (b) the
amount and type of such Loan and the applicable Euro-
Rate Portions and Euro-Rate Interest Periods (if any)
and the Optional Currency (if any); and (c) the
apportionment among the Lenders of the Loans as
determined by the Agent in accordance with Section 2.02
hereof. "
3. Swing Loans. Section 2.08(b)(iii) is amended to read in its
entirety as follows:
"(iii) Swing Loans. Interest shall accrue on all Swing
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Loans at a
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rate per annum equal to PNC Bank's overnight offered
rate plus two percent (2%)."
4. Election, Renewal or Conversion of Interest Rate Options. Section 2.08(f)
of the Credit Agreement is amended to read in its entirety as follows:
(f) Election, Renewal or Conversion of Interest Rate
Options. Elections or renewals of, or conversions to, the
Base Rate Option shall continue in effect until converted or
renewed as hereinafter provided. Elections or renewals of,
or conversions to, the Euro-Rate Option shall expire as to
each Euro-Rate Portion at the expiration of the applicable
Euro-Rate Interest Period. At any time with respect to the
Base Rate Portion or at the expiration of the applicable
Euro-Rate Interest Period with respect to any Euro-Rate
Portion, the Borrower may cause (subject to Subsection
2.08(e)) all or any part of the principal amount of such
Portion to be converted to, or to be renewed under, the Euro-
Rate Option by notice to the Agent as hereinafter provided.
Such notice (i) shall be irrevocable, (ii) shall be given
not later than noon (Pittsburgh, Pennsylvania time) in the
case of a conversion to or renewal of, either in whole or in
part, the Euro-Rate Option, not less than three (3) Business
Days prior to the proposed effective date for such
conversion or renewal (except if the Loan is in an Optional
Currency in which case the notice is required four (4)
Business Days prior to the proposed effective date for such
conversion or renewal), and (iii) shall set forth:
(A) the effective date of such
conversion or renewal, which shall be a Business Day;
(B) the new Euro-Rate Interest
Period(s) selected; and
(C) with respect to each such Euro-
Rate Interest Period, the aggregate principal amount of the
corresponding Euro-Rate Portion.
At the expiration of each Euro-Rate Interest Period, any
part (including the whole) of the principal amount of the
corresponding Euro-Rate Portion as to which no notice of
conversion or renewal has been received shall automatically
be converted to the Base Rate Option. The Agent shall
promptly notify the Borrower and the Lenders of any such
automatic conversion.
5. Security Interests. Section 4.28 of the Credit Agreement is amended to
read in its entirety as follows:
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4.28 Security Interests. The Liens and security
interests granted to the Agent for the benefit of the
Lenders pursuant to the Patent, Trademark and Copyright
Assignment, the Pledge Agreements and the Security
Agreements constitute and will continue to constitute
Prior Security Interests under the Uniform Commercial
Code as in effect in each applicable jurisdiction (the
"Uniform Commercial Code") or other applicable Law
entitled to all the rights, benefits and priorities
provided by the Uniform Commercial Code or such Law.
Upon the filing of financing statements relating to
said security interests in each office and in each
jurisdiction where required in order to perfect the
security interests described above, taking possession
of any stock certificates or other certificates, and
recordation of the Patent, Trademark and Copyright
Assignment in the United States Patent and Trademark
Office and United States Copyright Office, entering
into a control agreement as required by the Financial
Assets Pledge Agreement, as applicable, all such action
as is necessary or advisable to establish such rights
of the Agent will have been taken, and there shall be
upon execution and delivery of the Patent, Trademark
and Copyright Assignment, the Pledge Agreements, the
Security Agreements and a control agreement, such
filings and such taking of possession no necessity for
any further action in order to preserve, protect and
continue such rights, except the filing of continuation
statements with respect to such financing statements
within six months prior to each five- year anniversary
of the filing of such financing statements or within
not less than six months prior to such other longer
anniversary date in any jurisdiction. All filing fees
and other expenses in connection with each such action
have been or will be paid by the Borrower.
6. Pledge of Cash and Cash Equivalents. Section 6.1 G(b) of the Credit
Agreement is deleted. Section 7.13(b) of the Credit Agreement is amended to
read in its entirety, as follows:
"(b) Minimum Cash and Cash Equivalents. The Borrower
shall not permit the sum of cash and Cash Equivalents
of the Borrower and its Subsidiaries to be less than
$30,000,000 at any time. The Borrower shall not permit
the aggregate value of Pledged Cash and Cash
Equivalents to be less than $25,000,000 at any time."
7. New Subsidiaries. Section 7.03(h) is amended to read in its entirety as
follows:
"(h) the Borrower or any Subsidiary may acquire the
assets or securities of any other Person provided that
(i) at the time of such acquisition no Default or Event
of Default shall have occurred
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and be continuing or be caused by such acquisition, (ii) the
acquired Person, if a Domestic Subsidiary, shall become a
Subsidiary Guarantor within five (5) Business Days of such
acquisition and shall execute all Loan Documents required of
a Subsidiary Guarantor, including without limitation a
subsidiary Guarantor Joinder in the form attached as Exhibit
J, (iii) the Borrower's equity ownership interest in the
acquired Person shall, if a Subsidiary, be pledged to the
Agent for the benefit of the Lenders; provided, however,
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that if the acquired Person is a non-Domestic Subsidiary,
the maximum amount of such acquired Person's equity pledged
to the Agent shall not exceed sixty-five percent (65%) of
the acquired Person's equity capitalization, (iv) the board
of directors or other equivalent governing body of such
acquired Person shall have approved such acquisition, (v)
the acquired Person is engaged in the information technology
business or a business related thereto, and (vi) the
Borrower shall have provided the Agent, for redelivery to
the Lenders, at least three (3) Business Days prior to such
acquisition, with a certificate stating that (A) such
acquisition shall not violate any covenants of this
Agreement and (B) establishing that, on a pro forma basis
after taking into account the acquisition, the Borrower is
in compliance with the financial covenants set forth in
Section 7.13.
8. Consequences of Event of Default. Sections 8.02(a) and (b) are
amended to read in their entirety as follows:
"(a) If an Event of Default specified in any of items (a)
through (k) or item (n) or (o) of Section 8.01 shall occur
and be continuing, the Lenders shall be under no further
obligation to make Loans hereunder, the Issuing Bank shall
be under no further obligation to issue or amend Letters of
Credit hereunder and the Agent may, and upon the request of
the Required Lenders shall, by written notice to the
Borrower, terminate the Revolving Credit Commitment and
declare the unpaid principal amount of the Notes then
outstanding and all interest accrued thereon, any unpaid
fees and all other Indebtedness of the Borrower to the
Lenders, the Agent and the Issuing Bank to be forthwith due
and payable, and the same shall thereupon become and be
immediately due and payable to the Agent for the benefit of
each Lender, the Agent and the Issuing Bank without
presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived; provided,
however, that no acceleration will occur under any agreement
creating a Derivative unless that agreement, by its own
terms provides for such acceleration; and"
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"(b) If any Event of Default specified in item (l) or
(m) of Section 8.01 shall occur, the Lenders shall be
under no further obligations to make Loans hereunder,
the Issuing Bank shall be under no further obligation
to issue or amend Letters of Credit hereunder, the
Revolving Credit Commitment shall be terminated and the
unpaid principal amount of the Notes then outstanding
and all interest accrued thereon, any unpaid fees and
all other Indebtedness of the Borrower to the Lenders,
the Agent and the Issuing Bank and under the other Loan
Documents shall be immediately due and payable, without
presentment, demand, protest or notice of any kind, all
of which are hereby expressly waived; further, during
the sixty (60) day period referred to in item (l) the
Lenders shall be under no further obligation to make
Loans and the Issuing Bank shall be under no further
obligation to issue or amend Letters of Credit;
provided, however, that no acceleration will occur
under any agreement creating a Derivative unless that
agreement, by its own terms provides for such
acceleration
9. Amendments and Waivers.
(A) The introductory clause of Section 10.01 is amended to read in its
entirety as follows:
"Amendments and Waivers. The Required Lenders, or the Agent
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with the consent in writing of the Required Lenders,
and the Borrower (if required) may, subject to the
provisions of this Section 10.01, from time to time
enter into written supplemental agreements to this
Agreement and the other Loan Documents (except
Derivatives) for the purpose of adding or deleting any
provisions or otherwise changing, varying or waiving in
any manner the rights of the Lenders, the Agent or the
obligor thereunder or the conditions, provisions or
terms thereof or waiving any Event of Default
thereunder or consenting to an action of any of the
Borrower or any of its Subsidiaries, but only to the
extent specified in such written agreements; provided,
however, that no such supplemental agreement shall,
without the consent of all the Lenders:"
(B) Section 10.01(h) is amended to read in its entirety as follows:
"(h) release any Subsidiary Guarantor or any material
portion of the Collateral (other than a through merger,
sale or disposition permitted by Section 7.04 or 7.05);
or"
(C) A new sentence is added at the end of Section 10.01 as follows:
"In the case of Derivatives, the agreement creating the
Derivative
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will govern amendments and waivers."
10. Conditions. This First Amendment shall be conditioned on:
(a) the execution and delivery of this First Amendment by the
Borrower, the Agent and the Lenders; and
(b) such other instruments, documents and certificates as the Agent
and the Lenders may reasonably require.
11. Limited Amendment. This First Amendment shall not, except as expressly set
forth above, serve to waive, supplement or amend the Credit Agreement, which
Credit Agreement shall remain in full force and effect as amended hereby.
12. Miscellaneous. The Borrower represents and warrants that:
(a) Except as set forth herein, all terms, covenants and conditions
set forth in the Credit Agreement, together with all representations and
warranties made therein, shall remain valid, effective, accurate and in full
force and effect and are hereby ratified and reaffirmed in all respects;
(b) No Events of Default or potential Events of Default exist;
13. Governing Law. This First Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania (without regard to
the conflict of law provisions thereof); and
14. Counterparts. This First Amendment may be executed in counterparts.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed and delivered this Waiver and Amendment as of the day and year first
set forth above.
WITNESS: iGATE CAPITAL CORPORATION
By: By: /s/ Bruce E. Haney
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Title: CFO
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PNC BANK, NATIONAL
ASSOCIATION,
as Agent and Lender
By: ________________________
Title: _____________________
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NATIONAL CITY BANK OF
PENNSYLVANIA,
as Lender
By: _____________________________
Title: __________________________
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