1
EXHIBIT 10.14
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment (the "Second Amendment") dated as of March 21, 2001
amends that certain $120,000,000 Multi-Currency Revolving Credit Agreement dated
as of January 9, 1998 among American Management Systems, Incorporated (as a
Borrower and the Guarantor), various other Borrowers, the Lenders named therein
and Bank of America, N.A., formerly NationsBank, N.A., as Administrative Agent,
and Wachovia Bank, N.A., as Documentation Agent, as amended by a certain First
Amendment to Credit Agreement dated as of March 16, 1998 (the "Agreement").
WHEREAS, the Borrowers and the Guarantor have requested that the Lenders
and the Agents amend certain provisions of the Agreement, and the Lenders and
the Agents are willing to amend the Agreement as herein provided;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein, the Borrowers, the Guarantor, the Lenders and the Agents
hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the Agreement.
2. APPLICABLE RATE. The definition of "Applicable Rate" in Section
1.1 of the Agreement shall be amended by substituting the following for the
existing language:
"APPLICABLE RATE" means, for any day, with
respect to any Eurocurrency Rate Revolving Credit Loan
or Swingline Loan, or with respect to the Facility Fees
payable hereunder, or with respect to the Letter of
Credit Fees payable hereunder, as the case may be, the
applicable rate per annum, expressed as a percentage,
equal to the
2
number of basis points set forth below under the caption
"Eurocurrency Rate Margin/Swingline Margin," "Facility
Fee," or "LC Fee," as the case may be, based upon the
ratio of EBILTDA to Interest and Lease Charges of AMS
and its consolidated Subsidiaries:
- ---------------------------------------------------------------------------
Eurocurrency Rate
Margin/Swingline
Margin Facility Fee LC Fee
EBILTDA: Interest (basis points (basis points (basis points
and Lease Charges per annum) per annum) per annum)
- ---------------------------------------------------------------------------
Less than or 77.5 35 77.5
equal to 3.0
- ---------------------------------------------------------------------------
Greater than 3.0
but less than or
equal to 3.5 70 30 70
- ---------------------------------------------------------------------------
Greater than 3.5 62.5 25 62.5
- ---------------------------------------------------------------------------
For purposes of the foregoing, the Applicable
Rate for any date shall be determined by reference to
the ratio of EBILTDA to Interest and Lease Charges as of
the last day of the fiscal quarter of AMS most recently
ended as of such determination date (such calculations
of EBILTDA and Interest and Lease Charges to be for the
four fiscal quarters ending on such date), and any
change in the Applicable Rate shall become effective
five Business Days after the delivery to each Lender of
the certificate with respect to the Financial Statements
to be delivered pursuant to Section 5.1(a) for the
fiscal quarter or fiscal year most recently ended, as
the case may be, and shall apply to Loans and Letters of
Credit outstanding on such delivery date or made on and
after such delivery date. Notwithstanding the foregoing
and except as provided in the following sentence, at any
time during which AMS has failed to deliver to the
Administrative Agent the certificate referred to above
with respect to a fiscal quarter or fiscal year
following the date that delivery of Financial Statements
relating to such fiscal quarter or fiscal year are
required to be delivered under Section 5.1(a), the ratio
of EBILTDA to Interest and Lease Charges shall be
deemed, solely for the purposes of calculating the
Applicable Rate, to be less than 3.0 until such time as
AMS shall have delivered such certificate and Financial
Statements to the Administrative Agent. Notwithstanding
the foregoing, from the date hereof to the date on which
the certificate required by Section 5.1(a) with respect
to the Financial Statements for the fiscal quarter
ending March 31, 2001 is actually delivered, the ratio
of EBILTDA to Interest and Lease Charges shall be
deemed, solely for purposes of calculating the
Applicable Rate, to be less than or equal to 3.0.
2
3
3. DENOMINATION DATE. The definition of Denomination Date in Section
1.1 of the Agreement shall be amended by substituting the following for the
existing language:
"DENOMINATION DATE" means, (i) with respect to the borrowing,
continuation or conversion of a Loan denominated in U.S. Dollars,
the date such Loan is made, converted or continued; (ii) with
respect to the borrowing, conversion or continuation of a
Eurocurrency Rate Revolving Credit Loan or a Swingline Loan
denominated in an Approved Currency other than U.S. Dollars, the
date that is two Business Days before the date such Loan is made,
converted, or continued as a Eurocurrency Rate Revolving Credit
Loan; (iii) with respect to the issuance of a Letter of Credit,
the date such Letter of Credit is issued; and (iv) with respect to
a borrowing of a Competitive Bid Loan, the date such Loan is
accepted by Borrower.
4. EBILTDA. The definition of "EBILTDA" in Section 1.1 of the
Agreement shall be amended by adding the following sentence to the definition:
For purposes of Section 5.2 hereof only, for each of the fiscal
quarters ending March 31, 2001 and June 30, 2001, EBILTDA shall be
calculated by adding back to the figure otherwise calculated in
accordance with GAAP the amount of $35,200,000 recorded as a
charge to earnings for the quarter ended September 30, 2000 in
connection with a settlement and related expenses of legal
proceedings against AMS brought by the State of Mississippi in an
action styled State of Mississippi v. American Management Systems,
Inc., No. 251-99-382-CIV (Circuit Court of Hinds County,
Mississippi (filed April 22, 1999).
5. USAGE PREMIUM. The definition of "Usage Premium" in Section 1.1 of
the Agreement shall be deleted.
6. INTEREST BASIS; INTEREST PAYMENT DATES. Section 2.10 of the
Agreement is hereby amended by substituting the following subsection (a) for the
existing subsection:
(a) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Revolving Credit Loan, Swingline Loan and
Competitive Bid Loan from the date of the relevant Loan until such
Loan is paid in full and at maturity (whether by acceleration or
otherwise) and thereafter on demand at the following rates per
annum:
(i) For each day that such Loan is a Base Rate Loan, the
Base Rate applicable to such Loan for such day.
3
4
(ii) For each day that such Loan is a Swingline Loan, a
rate per annum equal to the sum of the rate quoted by Bank
of America for such Loan for such day and accepted by AMS,
plus the Applicable Rate.
(iii) During such period that such Loan is a Eurocurrency
Rate Revolving Credit Loan, the Eurocurrency Rate
applicable to such Loan for the related Interest Period
plus the Applicable Rate.
(iv) During such period that such Loan is a Competitive Bid
Loan, at a rate per annum accepted by Borrower in its
notice to the Administrative Agent delivered pursuant to
Section 2.6(a)(iii)(B) or Section 2.7(a)(iii)(B).
7. FEES. Section 2.13 of the Agreement is hereby amended by
substituting the following subsection (b) for the existing subsection:
(b) Each Borrower for the account of which a Letter of Credit is
issued hereunder shall pay to the Administrative Agent (i) for the
account of each Lender, a fee (the "Letter of Credit Fee") in U.S.
Dollars on the date of issuance of a Letter of Credit in an amount equal
to the Applicable Rate per annum times the stated amount of such Letter
of Credit and (ii) for the account of the Administrative Agent, a
fronting fee (the "Fronting Fee") in U.S. Dollars on the date of issuance
of a Letter of Credit in an amount equal to .125% per annum times the
stated amount of such Letter of Credit; provided that the Administrative
Agent shall rebate to such Borrower the ratable portion of such fees
attributable to the period between the date such Letter of Credit is
cancelled by mutual agreement of Bank of America and such Borrower (other
than by reason of payment in full of such Letter of Credit) and the
expiration date of such Letter of Credit. For purposes of this Section
2.13(b), the stated amount of a Letter of Credit denominated in an
Alternative Currency shall be the Equivalent U.S. Dollar Amount thereof
as of the Denomination Date. Upon receipt of notice from the
Administrative Agent, each Lender shall pay to the Administrative Agent
its Commitment Percentage of any amount subject to rebate hereunder.
8. BANK OF AMERICA. Each and every reference in the Agreement to
"NationsBank" shall be deemed a reference to "Bank of America."
9. ACKNOWLEDGEMENT OF GUARANTOR. The Guarantor affirms its
obligations under the Guaranty and consents to this Second Amendment.
10. REPRESENTATIONS AND WARRANTIES. Each Borrower represents and
warrants to the Agents and each Lender as follows:
10.1 EXISTENCE. Each of the Borrower and its Subsidiaries is a
corporation or partnership duly organized, validly existing and in good standing
under the Laws of the nation in which it is organized and any political
subdivision thereof, and is duly qualified to do business and in good standing
in each other nation and any political subdivision thereof where the nature
4
5
or extent of its business activities requires such qualification, except where
the failure to be so qualified and in good standing could not reasonably be
expected to have a Materially Adverse Effect.
10.2 POWER AND AUTHORITY. Each of the Borrower and its
Subsidiaries has all requisite power and authority to own or lease its
properties, conduct its business as now conducted and to execute and deliver the
Second Amendment and to perform the Agreement as amended hereby.
10.3 AUTHORIZATION AND ENFORCEABILITY. The execution, delivery
and performance of the Second Amendment have been duly authorized by all
necessary corporate or partnership action of each of the Borrower and its
Subsidiaries and require no consent of any Person which has not been obtained,
and the Second Amendment constitutes and the Agreement as amended hereby
constitutes valid and binding obligations of each of the Borrower and its
Subsidiaries party thereto, enforceable in accordance with their respective
terms, except as such enforceability may be limited by Debtor Relief Laws and by
general principles of equity.
10.4 NO VIOLATION. The execution, delivery and performance of
the Second Amendment does not and will not violate any Borrower's or any of its
Subsidiaries' charter, bylaws, partnership agreement or other organizational
documents, any Laws applicable to such Borrower or any of its Subsidiaries or
any agreement to which such Borrower or any of its Subsidiaries is a party or by
which such Borrower or any of its Subsidiaries is bound, except for violations
of Laws or agreements which could not reasonably be expected to have a
Materially Adverse Effect.
10.5 NO DEFAULT. As of the date of this Second Amendment, no
Default Condition or Event of Default has occurred and is continuing under the
Agreement which has not been waived.
11. COST AND EXPENSES. AMS shall pay all reasonable
out-of-pocket costs, fees and expenses of the Agents incident to this Second
Amendment, including the reasonable fees, out-of-pocket expenses and other
disbursement of Troutman Sanders Mays & Valentine LLP, counsel for the Agents,
in connection with this Second Amendment, and an arrangement fee as agreed
between the Administrative Agent and the Guarantor.
12. REAFFIRMATION. Except as otherwise expressly amended by this
Second Amendment, the Agreement is and shall continue to be in full force and
effect in accordance with its terms. The parties hereto further agree that each
reference in any Loan Document to the "Agreement" or the "Loan Agreement" shall
be deemed to refer to the Agreement as amended by this Second Amendment and as
it may be amended from time to time hereafter.
13. MISCELLANEOUS.
13.1 GOVERNING LAW. This Second Amendment shall be governed by,
and construed and interpreted in accordance with, the laws of the State of New
York.
5
6
13.2 NO NOVATION. The transactions described herein do not
constitute, and should not be construed to be, a novation of any indebtedness
outstanding under the Agreement.
13.3 WAIVER. Any waiver of a provision of a Loan Document
accomplished by this Second Amendment shall be effective only in the specific
instance for which it is granted, shall not constitute a waiver of any other
provision of a Loan Document and shall not constitute an undertaking or
agreement to waive any provision of a Loan Document in the future.
13.4 SUCCESSORS AND ASSIGNS. This Second Amendment shall be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns.
13.5 INVALIDITY. If any provision of this Second Amendment shall
be held invalid by any court of competent jurisdiction, such holding shall not
invalidate any other provision hereof.
13.6 COUNTERPARTS. This Second Amendment may be executed in
several counterparts, each of which shall be an original and all of which
together shall constitute but one and the same instrument.
13.7 EFFECTIVE DATE. This Second Amendment shall become
effective upon its execution by AMS and all of the Lenders. Until a Borrower
executes this Second Amendment, such Borrower shall not have the right to borrow
under the Agreement and the Lenders shall have no obligation to lend to such
Borrower under the Agreement. On the date this Second Amendment is executed by a
Borrower, such Borrower shall have the right to borrow, and the Lenders shall be
obligated to lend to such Borrower, under the Agreement, as amended, and such
Borrower shall be deemed to have made the representations and warranties
contained herein as of the date of such execution. Upon execution of this Second
Amendment, AMS Poland Sp. Z.O.O. shall be a Borrower.
IN WITNESS WHEREOF, each Borrower, the Guarantor, the
Administrative Agent, the Documentation Agent and each Lender have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first about written.
AMERICAN MANAGEMENT
SYSTEMS, INCORPORATED,
as Borrower and Guarantor
BY: /s/ FRANK A. NICOLAI
--------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
6
7
AMS MANAGEMENT SYSTEMS
DEUTSCHLAND GMBH,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
AMS MANAGEMENT SYSTEMS
EUROPE S.A./N.V.,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
AMS MANAGEMENT SYSTEMS U.K. LTD.,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
AMS MANAGEMENT SYSTEMS CANADA
INC.,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
AMSY MANAGEMENT SYSTEMS
NETHERLANDS, B.V.,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
7
8
NORDIC BUSINESS MANAGEMENT
SYSTEMS AB,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
AMS MANAGEMENT SYSTEMS
AUSTRALIA PTY. LIMITED,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
AMS MANAGEMENT SYSTEMS
(SWITZERLAND) AG,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
AMS MANAGEMENT SYSTEMS ITALIA
S.P.A.,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
AMS MANAGEMENT SYSTEMS
FRANCE S.A.,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
8
9
AMS MANAGEMENT SYSTEMS
POLAND SP. Z O.O.,
as Borrower
BY:
----------------------------------------------
TITLE:
-------------------------------------------
DATE:
-------------------------------------------
AMERICAN MANAGEMENT SYSTEMS
PORTUGAL-CONSULTORIA E
DESENVOLVIMENTO DE SOFTWARE,
SOCIEDADE UNIPESSOAL IDA, as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
AMS MANAGEMENT SYSTEMS
ESPANA, S.A.,
as Borrower
BY: /s/ FRANK A. NICOLAI
----------------------------------------------
TITLE: Frank A. Nicolai, Director
-------------------------------------------
DATE: March 23, 2001
-------------------------------------------
9
10
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF __________________
The foregoing instrument was acknowledged before me in my jurisdiction
aforesaid this _____ day of ___________, ________ by _________________, who is
________________ of AMS Management Systems Espana, S.A., for and on behalf of
the corporation.
---------------------------------------
Notary Public
My commission expires: ______________________________
10
11
BANK OF AMERICA, N.A.,
as Administrative Agent and Lender
BY: /s/ ROBERT MAURIELLO
------------------------------------------------
TITLE: Vice President
---------------------------------------------
DATE: March 21, 2001
----------------------------------------------
WACHOVIA BANK, N.A.,
as Documentation Agent and Lender
BY: /s/ JENNIFER L. NORRIS
------------------------------------------------
TITLE: Assistant Vice President
---------------------------------------------
DATE: March 21, 2001
----------------------------------------------
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY, as Lender
BY: /s/ JEFFERY STANTON
-----------------------------------------------
TITLE: Vice President
---------------------------------------------
DATE: March 22, 2001
----------------------------------------------
COMERICA BANK, as Lender
BY: /s/ ASHLEY S. YASHIN
------------------------------------------------
TITLE: Account Officer
---------------------------------------------
DATE: March 21, 2001
----------------------------------------------
KBC BANK N.V.
BY: /s/ Robert Snauffer /s/ Patrick A. Janssens
------------------------------------------------
TITLE: First Vice President Vice President
---------------------------------------------
DATE:
---------------------------------------------
837556
11