SIXTH AMENDMENT TO TERM LOAN AGREEMENT
This Amendment, dated as of September 29, 2000 (this "Amendment") is
entered into by and among Mynd Corporation (formerly known as Policy Management
Systems Corporation), a South Carolina corporation (the "Borrower"), the
Subsidiaries of the Borrower parties hereto (the "Guarantors"), 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
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The Borrower, the Guarantors, the Agent and the Banks are parties to a Term
Loan Agreement dated as of November 5, 1999, as amended by a First Amendment to
Term Loan Agreement dated as of February 10, 2000, as amended by a Second
Amendment to Term Loan Agreement dated as of March 30, 2000, as amended by a
Third Amendment to Term Loan Agreement dated as of April 24, 2000, as amended by
a Consent, Waiver and Amendment dated as of June 19, 2000 and as further amended
by a Fifth Amendment to Term Loan Agreement dated as of August 10, 2000 (the
"Credit Agreement") pursuant to which the Banks extended a term loan.
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 and the Banks have agreed to do so, all upon the terms and
provisions and subject to the conditions hereinafter set forth.
AGREEMENT
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In consideration of the foregoing and the mutual covenants and agreement
hereinafter set forth, the parties hereto mutually agree as follows:
A. AMENDMENTS
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1. Amendment to Section 5.12. Section 5.12 of the Credit Agreement is
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hereby amended and restated in its entirety to read as follows:
Minimum Consolidated Tangible Net Worth. At any date, Consolidated
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Tangible Net Worth will not be less than (i) $126,718,000 until
October 30, 2000 and $196,718,000 on October 31, 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 (i) 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 and (ii)
fees and expenses paid in connection with the termination of the
merger agreement with Welsh, Carson, Anderson & Stowe and accrued by
the Borrower on its income statement in accordance with GAAP in an
amount not to exceed $24,000,000.
2. Amendment to Section 5.20. Section 5.20 of the Credit Agreement is
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hereby amended and restated in its entirety to read as follows:
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Property Acquisition Costs and Capitalized Software Costs. The
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Borrower will not permit the sum of Property Acquisition Costs and
Capitalized Software Costs for (a) fiscal year 2000 to exceed
$75,000,000 and (b) fiscal year 2001 to exceed $50,000,000.
3. Amendment to Section 5.21. Section 5.21 of the Credit Agreement is
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hereby amended and restated in its entirety to read as follows:
Consolidated Adjusted Cash Flow. The Borrower will cause Consolidated
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Adjusted Cash Flow minus Capital Expenditures to equal or exceed the
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following amounts for the quarterly period ending on each of the
following dates: (i) March 31, 2000, ($2,000,000), (ii) June 30, 2000,
$10,000,000, and (iii) September 30, 2000, $10,000,000, provided,
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however that for the purposes of either (ii) or (iii) above, such
calculation shall exclude fees and expenses paid in connection with
the termination of the merger agreement with Welsh, Carson, Anderson &
Stowe and accrued by the Borrower on its income statement in
accordance with GAAP in an aggregate amount not to exceed $24,000,000
and for the purposes of (iii) above, such calculation shall also
exclude one-time nonrecurring fees and expenses incurred in connection
with severance payments and headcount reduction incurred in the
quarter ending September 30, 2000 in an aggregate amount not to exceed
$10,000,000.
4. Addition of New Section 5.22. A new Section 5.22 is hereby added as
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follows:
Section 5.22 External Syndicate Advisor.
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Upon request by the Agent, the Borrower shall and shall cause
each of its Subsidiaries to provide such information and assistance to
an external advisor (the "Syndicate Advisor"), such advisor to be
selected by the Agent and the fees and expenses of which shall be paid
by the Borrower. The scope of the investigation of the Syndicate
Advisor shall be determined by the Agent and shall include, but not be
limited to, a determination of sustainable free cash flow, a full
review of accounts receivable and debt capacity of the Borrower. The
Syndicate Advisor shall agree to be bound by the confidentiality
provisions set forth in Section 10.11 hereof.
5. Addition of New Section 5.23. A new Section 5.23 is hereby added as
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follows:
Section 5.23 Additional Information; Bank Meeting
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In the event of the termination of the Agreement and Plan of
Merger dated as of June 20, 2000 by and among the Borrower, Computer
Sciences Corporation and Patriot Acquisition Corp., the Agent shall
have the right to request, and the Borrower shall be obligated under
all circumstances to comply with such request, (a) a bank meeting to
be scheduled as soon as reasonably possible, the scope of such bank
meeting shall include, but not be limited to (i) updates on the
Borrower's internal budgets, (ii) contingency plans of the Borrower,
(iii) information relating to the Hart-Scott-Rodino antitrust approval
process and (iv) other matters as may be reasonably requested by the
Agent or any Bank and (b) any additional information, reporting or
otherwise, relating to the Borrower, in the reasonable discretion of
the Agent.
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B. REPRESENTATIONS AND WARRANTIES
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The Borrower and the Guarantors hereby represent and warrant 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, the representations and
warranties of the Borrower and the Guarantors 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 and the Guarantors of
this Amendment have been duly authorized by all necessary corporate action.
C. EFFECTIVENESS; CONDITIONS
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This Amendment will become effective as of September 30, 2000 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. Execution of Counterparts of Amendment. The Agent shall have
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received counterparts (or other evidence of execution, including telephonic
message, satisfactory to the Agent) of this Amendment, which collectively shall
have been duly executed on behalf of each of the Borrower, the Guarantors (other
than Policy Management Systems Investments, Inc., whose executed counterpart
shall not be required to be delivered to the Agent until October 11, 2000), the
Banks and the Agent.
2. Amendment Fee. The Borrower shall have paid an amendment fee to the
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Agent for the account of the consenting Banks equal to 0.10% of the aggregate
outstanding Loans in accordance with their Pro Rata Share; provided, however,
that for the purposes hereof, "consenting Banks" shall include all such Banks
that consent to the Amendment on or before October 11, 2000.
3. Other Fees. The Borrower shall have paid to the Agent all other fees
due and payable to the Agent as agreed to by the Borrower.
4. Other Items. The Agent shall have received such other documents,
agreements or information which may be reasonably requested by the Agent.
D. MISCELLANEOUS
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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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written.
BORROWER: MYND CORPORATION
(formerly known as Policy Management Systems
Corporation)
By: /S/ Stephen G. Morrison
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Title:
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GUARANTORS:
MYND CORPORATION F/K/A CYBERTEK
CORPORATION
MYND INTERNATIONAL, LTD.
MYND PARTNERS, L.P. F/K/A CYBERTEK SOLUTIONS, L.P.
By: POLICY MANAGEMENT
SYSTEMS CORPORATION, its General Partner
MYND CORPORATION F/K/A DORN
TECHNOLOGY GROUP, INC.
MYND CORPORATION F/K/A THE
LEVERAGE GROUP, INC.
SOFTWARE SERVICES HOLDING, INC.
By: /S/ Stephen G. Morrison
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Title: ___________________________
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POLICY MANAGEMENT SYSTEMS
INVESTMENTS, INC.
By: /S/ Elizabeth D. Powers
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Title: President
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BANKS: BANK OF AMERICA, N.A.
By:/S/ John E. Williams
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Title: Managing Director
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WACHOVIA BANK, N.A.
By:/S/ Donald E. Sellers, Jr.
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Title: Senior Vice President
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FIRST UNION NATIONAL BANK
By:/S/ Franklin M. Wesssinger
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Title: Senior Vice President
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