REVOLVING CREDIT
AND
REIMBURSEMENT AGREEMENT
by and among
MODIS PROFESSIONAL SERVICES, INC., as Borrower
and
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative Agent
and
FLEET NATIONAL BANK,
as Syndication Agent
and
FIRST UNION NATIONAL BANK,
as Co-Syndication Agent
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
and
NATIONSBANC MONTGOMERY SECURITIES LLC
as Lead Arranger
October 30, 1998
vii
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Terms
1.01 Definitions..............................................................................................2
1.02 Accounting Terms........................................................................................26
1.03 Cross References........................................................................................26
1.04 Accounting and Financial Determinations.................................................................27
1.05 General Provisions Relating to Definitions..............................................................27
1.06 Time....................................................................................................27
ARTICLE II The Loans
2.01 Revolving Credit Facilities.............................................................................28
2.02 Competitive Bid Loans...................................................................................32
2.03 Payment of Interest.....................................................................................35
2.04 Payment of Principal....................................................................................36
2.05 Non-Conforming Payments.................................................................................36
2.06 Borrower's Account......................................................................................37
2.07 Notes...................................................................................................37
2.08 Reductions..............................................................................................38
2.09 Conversions and Elections of Subsequent Interest Periods................................................38
2.10 Increase and Decrease in Amounts........................................................................39
2.11 Pro Rata Payments.......................................................................................39
2.12 Unused Fee..............................................................................................39
2.13 Deficiency Advances.....................................................................................40
2.14 Use of Proceeds.........................................................................................40
2.15 Swing Line..............................................................................................40
2.16 Revolving Credit Facility Extension and Term Loan Option................................................41
2.17 The Euro................................................................................................43
ARTICLE III Letters of Credit
3.01 Letters of Credit.......................................................................................45
3.02 Reimbursement...........................................................................................45
3.03 Letter of Credit Fee....................................................................................49
3.04 Administrative Fees and Reserves........................................................................49
ARTICLE IV Change in Circumstances
4.01 Increased Cost and Reduced Return.......................................................................50
4.02 Limitation on Types of Loans............................................................................51
4.03 Illegality..............................................................................................52
4.04 Treatment of Affected Loans................ .............................................................52
4.05 Compensation............................................................................................53
4.06 Taxes...................................................................................................53
ARTICLE V Guaranties
5.01 Guaranties..............................................................................................56
ARTICLE VI Conditions to Making Loans and Issuing
6.01 Conditions of Advance and Issuance of Letters of Credit.................................................57
6.02 Conditions of Loans.....................................................................................58
ARTICLE VII Representations and Warranties
7.01 Representations and Warranties..........................................................................60
ARTICLE VIII Affirmative Covenants
8.01 Financial Reports, Etc..................................................................................67
8.02 Maintain Properties.....................................................................................68
8.03 Existence, Qualification, Etc...........................................................................68
8.04 Regulations and Taxes...................................................................................68
8.05 Insurance. ............................................................................................68
8.06 True Books..............................................................................................69
8.07 Year 2000 Compliance....................................................................................69
8.08 Right of Inspection.....................................................................................69
8.09 Observe all Laws........................................................................................69
8.10 Officer's Knowledge of Default..........................................................................69
8.11 Suits or Other Proceedings..............................................................................69
8.12 Notice of Discharge of Hazardous Material or Environmental Complaint. .................................70
8.13 Environmental Compliance................................................................................70
8.14 Indemnification.........................................................................................70
8.15 Further Assurances......................................................................................70
8.16 ERISA Requirement.......................................................................................70
8.17 Continued Operations....................................................................................71
8.18 Use of Proceeds.........................................................................................71
ARTICLE IX Negative Covenants
9.01 Consolidated Leverage Ratio.............................................................................72
9.02 Consolidated Fixed Charge Ratio.........................................................................72
9.03 Consolidated Capitalization Ratio.......................................................................72
9.04 Indebtedness............................................................................................72
9.05 Transfer of Assets......................................................................................73
9.06 Investments; Acquisitions...............................................................................73
9.07 Liens...................................................................................................74
9.08 Restricted Payments.....................................................................................74
9.09 Merger or Consolidation.................................................................................75
9.10 Change in Control.......................................................................................75
9.11 Transactions with Affiliates............................................................................75
9.12 ERISA...................................................................................................75
9.13 Fiscal Year.............................................................................................76
9.14 Dissolution, etc........................................................................................76
9.15 Rate Hedging Obligations................................................................................76
9.16 Negative Pledge Clauses.................................................................................76
ARTICLE X Events of Default and Acceleration
10.01 Events of Default.......................................................................................77
10.02 Agent to Act............................................................................................80
10.03 Cumulative Rights.......................................................................................80
10.04 No Waiver...............................................................................................80
10.05 Allocation of Proceeds..................................................................................80
ARTICLE XI The Agent
11.01 Appointment, Powers and Immunities......................................................................82
11.02 Reliance by Agent.......................................................................................82
11.03 Defaults................................................................................................83
11.04 Rights as Lender........................................................................................83
11.05 Indemnification.........................................................................................83
11.06 Non-Reliance on Agent and Other Lenders.................................................................83
11.07 Resignation of Agent....................................................................................84
11.08 Fees....................................................................................................84
11.09 Other Agents............................................................................................84
ARTICLE XII Miscellaneous
12.01 Assignments and Participations..........................................................................85
12.02 Notices.................................................................................................86
12.03 Right of Setoff; Adjustments............................................................................87
12.04 Survival................................................................................................88
12.05 Expenses................................................................................................88
12.06 Amendments and Waivers..................................................................................89
12.07 Counterparts............................................................................................90
12.08 Waivers by Borrower.....................................................................................90
12.09 Termination.............................................................................................90
12.10 Replacement Lender......................................................................................90
12.11 Governing Law...........................................................................................91
12.12 Headings and References.................................................................................91
12.13 Severability............................................................................................91
12.14 Entire Agreement........................................................................................91
12.15 Agreement Controls......................................................................................91
12.16 Usury Savings Clause....................................................................................92
12.17 Confidentiality.........................................................................................92
EXHIBIT A Applicable Commitment Percentages........................................................108
EXHIBIT B Form of Assignment and Acceptance........................................................109
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative...........................................................................114
EXHIBIT D-1 Form of Borrowing Notice--Loans..........................................................115
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans...............................................117
EXHIBIT E Form of Interest Rate Selection Notice...................................................119
EXHIBIT F-1 Form of 364 Day Note.....................................................................121
EXHIBIT F-2 Form of 5 Year Note......................................................................126
EXHIBIT F-3 Form of Competitive Bid Note.............................................................131
EXHIBIT F-4 Form of Swing Line Note..................................................................137
EXHIBIT G Form of Competitive Bid Quote............................................................142
EXHIBIT H Form of Competitive Bid Quote Request....................................................144
EXHIBIT I-1 Form of Opinion of Borrower's Counsel....................................................145
EXHIBIT I-2 Form of Opinion of Guarantors' Counsel...................................................146
EXHIBIT J Compliance Certificate...................................................................147
EXHIBIT K Form of Subsidiary and Suretyship Guaranty...............................................148
Schedule 1.02 Existing Letters of Credit
Schedule 1.03 Material Subsidiaries
Schedule 7.01(d) Subsidiaries and Investments
Schedule 7.01(f) Contingent Liabilities
Schedule 7.01(g) Liens
Schedule 7.01(j) Litigation
Schedule 7.01(t) Employment Matters
Schedule 8.05 Existing Insurance
Schedule 9.04 Indebtedness
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT, dated as of the 30th day of
October, 1998 (the "Agreement"), is made by and among:
MODIS PROFESSIONAL SERVICES, INC., a Florida corporation having its principal
place of business in Jacksonville, Florida (the "Borrower"); and
NATIONSBANK, NATIONAL ASSOCIATION (successor by merger of NationsBank, National
Association (South)), a national banking association organized and existing
under the laws of the United States of America and having its principal place of
business in Charlotte, North Carolina ("NationsBank") and the other Lenders
whose names are subscribed hereto and each other financial institution which may
hereafter execute and deliver an instrument of assignment with respect to this
Agreement pursuant to Section 12.01 (hereinafter NationsBank and such other
lenders may be referred to individually as a "Lender" or collectively as the
"Lenders"); and
NATIONSBANK, NATIONAL ASSOCIATION, in its capacity as agent for the Lenders (in
such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to the
Borrower loans of up to $500,000,000 consisting of (a) a 364 day revolving
credit facility (the '364 Day Facility') and (b) a five year revolving credit
facility (the '5 Year Facility') with (i) a $40,000,000 sublimit for the
issuance of standby letters of credit, (ii) a $20,000,000 swing line facility
and (iii) a $50,000,000 sublimit for borrowing in British pounds sterling, the
proceeds of such revolving credit facilities to be used as provided in Section
2.14 hereof; and
WHEREAS, the Lenders are willing to make the loans with NationsBank to act as
administrative agent for the Lenders;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as follows:
10
ARTICLE I
Definitions and Terms
1.01 Definitions. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
'Absolute Rate' has the meaning assigned to such term in Section 2.02(c)(ii)(C)
hereof;
'Absolute Rate Loan' means any Loan for which the rate of interest is
determined by reference to the Absolute Rate;
"Acquire" or "Acquisition", as applied to a Person, means the acquiring or
acquisition of a controlling interest in such Person by purchase (including all
or substantially all of the assets), exchange, issuance of stock or other
securities, or by merger, reorganization or other method;
"Adjusted CD Rate" means a per annum rate of interest equal to the sum of (i)
the CD Rate plus (ii) the Assessment Rate plus (iii) 10 basis points plus (iv)
the Applicable Margin;
"Adjusted Consolidated EBITDA" means Consolidated EBITDA; provided, however,
that with respect to an Acquisition which is accounted for as a "purchase", for
the Four-Quarter Period following the date of such Acquisition, the Consolidated
EBITDA shall include the results of operations of the Person or assets so
acquired which amounts shall be determined on a historical pro forma basis for
the Four-Quarter Period preceding or including the date of such Acquisition as
if such Acquisition had been consummated as a "pooling of interest", plus to the
extent applicable, any adjustments made in accordance with Securities and
Exchange Commission Rule 17 CFR 210.11-02;
"Advance" means a borrowing under (i) either of the Revolving Credit Facilities,
consisting of the aggregate principal amount of a Base Rate Loan or a Eurodollar
Loan, as the case may be or (ii) the Swing Line consisting of Swing Line Loans
or (iii) the Competitive Bid Facility consisting of Competitive Bid Loans;
'Advance Day Exchange Rate' means, with respect to a specified Advance or Loan
of an Alternative Currency, the Spot Rate of Exchange as of the date two
Business Days preceding the date such Advance is originally made, provided that,
if such Advance or Loan is continued for a subsequent Interest Period or
Converted pursuant to Section 2.09 the Advance Date Exchange Rate with respect
to such Loan shall be the Spot Rate of Exchange two Business Days preceding the
effective date of the latest Continuation or Conversion of such Advance or Loan;
and the Dollar Value of such Advance or Loan shall be adjusted as set forth in
Section 2.01(b); provided, further, that in the case of a drawing under a Letter
of Credit, the Spot Rate of Exchange shall be as of the date of such drawing;
'Alternative Currency' means, with respect to Loans under the 5 Year Facility,
the British Pounds and Euro and, with the prior written consent of all Lenders
and the Agent, any other lawful currency other than Dollars which is freely
transferable and convertible into Dollars in the United States currency market;
provided, however, that an Alternative Currency shall only be available to the
Borrower if each Lender shall have access to such Alternative Currency on terms
reasonably acceptable to such Lender;
'Alternative Currency Equivalent Amount' means, with respect to a specified
Alternative Currency and a specified Dollar amount, the amount of such
Alternative Currency into which such Dollar amount would be converted, based on
the applicable Advance Day Exchange Rate;
'Alternative Currency Loan' means a Loan made in an Alternative Currency;
"Affiliate" means a Person (i) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with
the Borrower; (ii) which beneficially owns or holds 25% or more of any class of
the outstanding voting stock (or in the case of a Person which is not a
corporation, 25% or more of the equity interest) of the Borrower; or (iii) 25%
or more of any class of the outstanding voting stock of which is beneficially
owned or held by the Borrower. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of voting stock, by contract
or otherwise;
"Applicable Commitment Percentage" means, with respect to each Lender at any
time, a fraction, the numerator of which shall be such Lender's Revolving Credit
Commitment and the denominator of which shall be the Total Revolving Credit
Commitment, which Applicable Commitment Percentage for each Lender as of the
Closing Date is as set forth in Exhibit A; provided that the Applicable
Commitment Percentage of each Lender shall be increased or decreased to reflect
any assignments to or by such Lender effected in accordance with Section 12.01;
'Applicable Lending Office' means, for each Lender and for each Type of Loan,
the 'Lending Office' of such Lender (or of an affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of such Lender (or an affiliate of such Lender) as such Lender may from
time to time specify (subject to the provisions of this Agreement) to the Agent
and the Borrower by written notice in accordance with the terms hereof as the
office by which its Loans of such Type are to be made and maintained;
"Applicable Margin" means that number of basis points per annum set forth below
in the case of each of a (i) Swing Line Loan or Eurodollar Loan made pursuant to
the 5 Year Facility, (ii) a Eurodollar Loan made pursuant to the 364 Day
Facility and (iii) with respect to the Unused Fee for the 5 Year Facility and
the 364 Day Facility, which number of basis points shall be the Applicable
Margin effective beginning on the first Business Day next following receipt by
the Agent of a Compliance Certificate pursuant to Section 8.01 hereof setting
forth the ratio of Net Funded Indebtedness to Adjusted Consolidated EBITDA, such
Applicable Margin to be that set forth opposite the respective ratio described
below:
Applicable Margin
-------------------------------------------------------------
5 Year Facility 364 Day Facility
-------------------------- -------------------------
Ratio of Net Funded Eurodollar Loan
Indebtedness Adjusted to and Swing Unused Eurodollar Unused
Tier Consolidated EBITDA Line Loan Fee Loan Fee
- - ---- ------------------------------ --------------- ------- ---------- -------
I Equal to or Less than
1.25 to 1.00 50 15 50 bp 12.5
II Greater than 1.25 to 1.00
but Equal to or Less than
2.25 to 1.00 62.5 20 62.5 17.5
III Greater than 2.25 to 1.00 75 25 75 22.5
For a period of six full calendar months next following the Closing
Date the Applicable Margin for Eurodollar Loans and Swing Line Loans
and the Unused Fee shall be not less than Tier II and after such six
month period the Applicable Margin shall be based upon the most recent
Compliance Certificate furnished to the Agent;
'Applicable Rate' means the Eurodollar Rate applicable to any Alternative
Currency Loan;
"Applications and Agreements for Letters of Credit" means, collectively, the
Applications and Agreements for Letters of Credit executed by the Borrower from
time to time and delivered to NationsBank to support the issuance of Letters of
Credit;
"Assessment Rate" means, for any day, the annual assessment rate (rounded
upwards, if necessary, to the nearest 1/100 of 1%) which is payable by
NationsBank to the Federal Deposit Insurance Corporation (or any successor) for
deposit insurance for Dollar time deposits with NationsBank at the Principal
Office as determined by NationsBank. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in the Assessment
Rate;
"Assignment and Acceptance" shall mean an Assignment and Acceptance
substantially in the form of Exhibit B (with blanks appropriately filled in)
delivered to the Agent in connection with an assignment of a Lender's interest
under this Agreement pursuant to Section 12.01;
'Associated Costs' means a rate per annum equal to the arithmetic mean of the
percentage rates applicable to the Applicable Lending Office of the relevant
Lender according to the following formula:
Associated Costs BY + L(Y-X) + S x 0.01
per annum = ----------------------
100 - (B+L)
where:
B = The percentage of such Lender's eligible liabilities required, on the
first day of the Relevant Period, to be held in a non-interest-bearing
deposit account with the Bank of England pursuant to the cash ratio
requirements of the Bank of England.
Y = The interest rate at which British Pound deposits in an amount
comparable to the aggregate principal amount of the relevant Loan are
offered by such Lender to leading banks in the London interbank market at
or about 11:00 a.m. (London time) on the first day of the Relevant Period
for a period comparable to the Relevant Period.
L = The percentage of eligible liabilities which the Bank of England, as at
the first day of the Relevant Period, requires such Lender to maintain as
interest bearing special deposits with the Bank of England.
X = The rate per annum payable by the Bank of England to the Lender on
interest bearing special deposits.
S = The rate payable by the Lender to the Financial Services Authority
pursuant to the Fees Regulations (but, for this purpose, the figure at
paragraph [2.02b]/[2.03b] of the Fees Regulations shall be deemed to be
zero) and expressed in pounds per 1,000,000 of the Fee Base of the Lender.
(a) For the purposes of this definition:
(i) "eligible liabilities" and "special deposits" shall have the
meanings ascribed to them from time to time by the Bank of
England;
(ii) "Relevant Period" means, if the Interest Period with respect
to the relevant Loan is three months or less, the duration of
such Interest Period or, if such Interest Period is longer than
three months, each period of three months and any necessary
shorter period in such Interest Period;
(iii) "Fee Regulations" means the Banking Supervision (Fees)
Regulations 1998 or such other regulations as may be in force
from time to time in respect of the payment of fees for banking
supervision; and
(iv) "Fee Base" shall bear the meaning ascribed to it, and shall
be calculated in accordance with, the Fees Regulations.
(b) In the application of the above formula, B, Y, L, X, S and Z will
be included in the formula as decimal fractions and not as
percentages, e.g. if B = 0.5% and Y = 15%, BY will be calculated as
0.5 x 15 and not as 0.5% x 15%.
(c) Associated Costs shall be computed by the applicable Lender on the
first day of each Relevant Period, and shall, if necessary, be rounded
upward to the nearest 1/10,000 of 1%. If there is more than one
Relevant Period comprised in the relevant Interest Period, then the
Associated Costs for that Interest Period shall be the weighted
average of the amounts so computed for the Relevant Periods comprised
in that Interest Period.
(d) Calculations will be made on the basis of a year of 365 days.
The "Associated Costs" shall be increased by an amount which the applicable
Lender shall determine from time to time to be necessary to compensate such
Lender for the cost or loss to it of complying with any liquidity, monetary
control or prudential requirements of The Bank of England existing from time to
time.
"Authorized Representative" means any of the President, the Chief Financial
Officer or the Controller of the Borrower or any other person expressly
designated by the Board of Directors of the Borrower (or the appropriate
committee thereof) as an Authorized Representative of the Borrower, as set forth
from time to time in a certificate in the form attached hereto as ExhibitC;
"Base Loan" means any Loan for which the rate of interest is determined by
reference to the Base Rate;
"Base Rate" means, for any day, the rate per annum equal to the higher of (a)
the Federal Funds Rate for such day plus one-half of one percent (.5%) and (b)
the Prime Rate for such day. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Rate shall be effective on the effective date of
such change in the Prime Rate or Federal Funds Rate;
"Base Rate Refunding Loan" means a Base Loan or Swing Line Loan made either to
(i) satisfy Reimbursement Obligations arising from a drawing under a Letter of
Credit or (ii) pay NationsBank in respect of Swing Line Outstandings;
"Board" means the Board of Governors of the Federal Reserve System (or any
successor body);
"Borrower's Account" means a demand deposit account number 3750165027, or any
successor account with the Agent, which may be maintained at one or more offices
of the Agent or an agent of the Agent;
"Borrowing Notice" means the notice delivered by an Authorized Representative in
connection with an Advance under either of the Revolving Credit Facilities or a
Swing Line Loan, in the forms attached hereto, respectively, as ExhibitsD-1 and
D-2;
'British Pound' means the lawful currency of England and Wales;
'Business Day' means (i) any day excluding Saturday, Sunday and any day which is
a legal holiday under the laws of the States of New York, North Carolina or
Florida or is a day on which banking institutions located in such states are
authorized or required by law or other governmental action to close and (ii)
with respect to all notices, determinations, fundings and payments in connection
with any Eurodollar Loan, any day that is a Business Day described in clause (i)
above and that is also a day for trading by and between banks in Dollar deposits
in the applicable interbank Eurodollar market or in deposits in the applicable
Alternative Currency in the United States interbank market, as applicable;
"CD Rate" means, for any Swing Line Loan which bears interest at the Adjusted CD
Rate, the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitles "Select
Interest Rates" published weekly on Form H.15 as of the date hereof, or any
successor publication thereof, or if the foregoing publication or any successor
or substitute thereof shall not be published by the Federal Reserve System for
any week, then the weekly offering rate determined by NationsBank on the basis
of quotations for such certificates received by it from three certificate of
deposit dealers of recognized standing. Each change in the CD Rate shall be
effective on the date thereof, without notice to the Borrower;
"Capital Leases" means all leases which have been or should be capitalized in
accordance with Generally Accepted Accounting Principles as in effect from time
to time including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof;
"Closing Date" means the date as of which this Agreement is executed by the
Borrower, the Agent and the Lender and on which the conditions set forth in
Section 6.01 hereof have been satisfied;
"Code" means the Internal Revenue Code of 1986, as amended, any successor
provision or provisions and any regulations promulgated thereunder;
'Competitive Bid Borrowing' has the meaning assigned to such term in Section
2.02 hereof;
'Competitive Bid Facility' means the facility described in Section 2.02 hereof
providing for Competitive Bid Loans to the Borrower;
'Competitive Bid Loan Commitment' means the amount which a Lender has offered to
loan to the Borrower pursuant to a Competitive Bid Quote by such Lender, the sum
of all Competitive Bid Loans not to exceed the Total 5 Year Commitment;
'Competitive Bid Loans' means the Loans bearing interest at the Absolute Rate
provided for in Section 2.02 hereof;
'Competitive Bid Notes' means, collectively, the promissory notes of the
Borrower with respect to Competitive Bid Loans provided for by Section 2.02
hereof executed and delivered to the Lenders as provided in Section 2.07(c)
substantially in the form attached hereto as Exhibit F-3 and incorporated herein
by reference, with appropriate insertions as to dates and names of Lenders, and
all promissory notes delivered in substitution or exchange thereof, in each case
as the same shall be amended, modified or supplemented and in effect from time
to time;
'Competitive Bid Quote' means an offer in accordance with Section 2.02 hereof by
a Lender to make a Competitive Bid Loan with one single specified interest rate;
'Competitive Bid Quote Request' has the meaning assigned to such term in Section
2.02 hereof;
"Consistent Basis" in reference to the application of Generally Accepted
Accounting Principles means the accounting principles observed in the period
referred to are comparable in all material respects to those applied in the
preparation of the audited financial statements of the Borrower referred to in
Section 7.01(f)(i) hereof;
"Consolidated Capitalization Ratio" means the ratio of (a) Consolidated Funded
Indebtedness to (b) the sum of Consolidated Funded Indebtedness and Consolidated
Shareholders' Equity;
"Consolidated EBITDA" means, with respect to the Borrower and its Subsidiaries
for the Four-Quarter Period ending on the date of computation thereof, the sum
of, without duplication, (i) Consolidated Net Income, plus (ii) Consolidated
Interest Expense accrued during such period, plus (iii) taxes on income accrued
during such period, plus (iv) amortization accrued during such period, plus (v)
without duplication, any depreciation during such period, all determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
"Consolidated EBITDAR" means the sum of Consolidated EBITDA plus Consolidated
Rental Expense;
"Consolidated Fixed Charge Ratio" means, with respect to the Borrower and its
Subsidiaries for the Four-Quarter Period ending on the date of computation
thereof, the ratio of (a) Consolidated EBITDAR to (b) Consolidated Fixed
Charges;
"Consolidated Fixed Charges" means, with respect to Borrower and its
Subsidiaries, for the periods indicated, the sum of, without duplication, (i)
Consolidated Interest Expense, (ii)Consolidated Rental Expense, and (iii)
required principal payments of Consolidated Funded Indebtedness, including,
without duplication, payments made with respect to earn-out obligations, made
during the Four-Quarter Period ending on the date of computation thereof;
"Consolidated Funded Indebtedness" means Indebtedness for Money Borrowed of the
Borrower and its Subsidiaries and any liability associated with an earn-out
obligation arising in connection with an Acquisition which is recorded as a
liability on the consolidated balance sheet of the Borrower and its Subsidiaries
all as determined in accordance with Generally Accepted Accounting Principles;
"Consolidated Interest Expense" means, with respect to any period of computation
thereof, the gross interest expense of the Borrower and its Subsidiaries,
including without limitation (i) the amortization of debt discounts, (ii) the
amortization of all fees (including, without limitation, fees payable in respect
of a Swap Agreement and Letters of Credit) payable in connection with the
incurrence of Indebtedness to the extent included in interest expense, and (iii)
the portion of any liabilities incurred in connection with Capital Leases
allocable to interest expense, all determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis;
"Consolidated Leverage Ratio" means the ratio of Consolidated Funded
Indebtedness to Adjusted Consolidated EBITDA;
"Consolidated Net Income" means, for any period of computation thereof, the
gross revenues from operations of the Borrower and its Subsidiaries less all
operating and non-operating expenses of the Borrower and its Subsidiaries
including taxes on income, all determined on a consolidated basis in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis; but
excluding as income: (i) net gains on the sale, conversion or other disposition
of capital assets, (ii)net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or its
Subsidiaries, (iii) net gains on the collection of proceeds of life insurance
policies, (iv) any write-up of any asset, and (v) any other net gain or credit
of an extraordinary nature as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Consolidated Pre-Tax Income" means, for any period of computation thereof, the
gross revenues from operations of the Borrower and its Subsidiaries less all
operating and non-operating expenses of the Borrower and its Subsidiaries
excluding taxes on income, all determined on a consolidated basis in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis; but
excluding as income: (i) net gains on the sale, conversion or other disposition
of capital assets, (ii)net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or its
Subsidiaries, (iii) net gains on the collection of proceeds of life insurance
policies, (iv) any write-up of any asset, and (v) any other net gain or credit
of an extraordinary nature as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Consolidated Rental Expense" means and includes with respect to the period of
determination thereof, the aggregate amount of all fixed payments (including as
such all payments which the lessee is obligated to make to the lessor on
termination of the lease or surrender of the leased property) payable by the
Borrower or any of its Subsidiaries, as lessee or sublessee under any lease of
real or personal property and shall include any amounts required to be paid by
the Borrower or any of its Subsidiaries (whether or not designated as rents or
additional rents) on account of maintenance, repairs, insurance, taxes and
similar charges;
"Consolidated Shareholders' Equity" means, at any time as of which the amount
thereof is to be determined, the consolidated shareholders' equity as determined
in accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
'Consolidated Total Assets' means, as of any date on which the amount thereof is
to be determined, the net book value of all assets of the Borrower and its
Subsidiaries as determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Contingent Obligation" of any Person means all contingent liabilities required
(or which, upon the creation or incurring thereof, would be required) to be
included in the consolidated financial statements of such Person in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis, as
defined by Statement No.5 of the Financial Accounting Standards Board, and any
obligation of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including obligations
of such Person however incurred:
(1) to purchase such Indebtedness or other obligation or any property or
assets constituting security therefor;
(2) to advance or supply funds in any manner (i)for the purchase or
payment of such Indebtedness or other obligation, or (ii)to maintain a
minimum working capital, net worth or other balance sheet condition or any
income statement condition of the primary obligor;
(3) to grant or convey any lien, security interest, pledge, charge or other
encumbrance on any property or assets of such Person to secure payment of
such Indebtedness or other obligation;
(4) to lease property or to purchase securities or other property or
services primarily for the purpose of assuring the owner or holder of such
Indebtedness or obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness or such obligation of
the primary obligor against loss in respect thereof;
with respect to Contingent Obligations, such liabilities shall be computed at
the amount which, in light of all the facts and circumstances existing at the
time, represent the present value of the amount which can reasonably be expected
to become an actual or matured liability;
'Continue', 'Continuation' and 'Continued' shall refer to the continuation
pursuant to Section 2.09 hereof of a Eurodollar Loan from one Interest Period to
the next Interest Period;
'Convert', 'Conversion' and 'Converted' shall refer to a conversion pursuant to
Section 2.09 or Article IV of one Type of Loan into another Type of Loan;
"Cost of Acquisition" means, as at the date of entering into any agreement to
Acquire any Person, the sum of the following without duplication: (i) any cash
or other property or the face amount of any debt instrument given as
consideration; (ii) any Indebtedness or liabilities assumed by the Borrower or
its Subsidiaries in connection with such Acquisition, including accounts payable
and other current liabilities and (iii) all amounts paid or payable in respect
of covenants not to compete, consulting agreements (either of which are required
to be capitalized in accordance with Generally Accepted Accounting Principles)
and other related contracts in connection with such Acquisition; provided,
however, that the Cost of Acquisition shall not include the value of the capital
stock of the Borrower or any Subsidiary to be transferred in connection
therewith;
"Default" means any event or condition which, with the giving or receipt of
notice or lapse of time or both, would constitute an Event of Default hereunder;
"Default Rate" means (i) with respect to each Eurodollar Loan, until the end of
the Interest Period applicable thereto, a rate of two percent (2%) above the
Eurodollar Rate applicable to such Loan, and thereafter at a rate of interest
per annum which shall be two percent (2%) above the Base Rate, (ii) with respect
to Base Rate Loans and Swing Line Loans, a rate of interest per annum which
shall be two percent (2%) above the Base Rate, (iii) with respect to each
Competitive Bid Loan, a rate of two percent (2%) above the Absolute Rate
applicable to such Loan, and (iv) in any case, the maximum rate permitted by
applicable law, if lower;
'Dollar Equivalent Amount' means, with respect to a specified Alternative
Currency amount, the amount of Dollars into which an Alternative Currency amount
would be converted, based on the applicable Advance Date Exchange Rate;
'Dollar Value' of an Advance or Loan in an Alternative Currency means the Dollar
Equivalent Amount of the principal amount of such Advance or Loan, as recorded
in the Agent's records pursuant to Section 2.01(b) and Section 3.01(b);
"Dollars" and the symbol "$" means dollars constituting legal tender for the
payment of public and private debts in the United States of America;
'Eligible Assignee' means (i) a Lender; (ii) an affiliate of a Lender; and (iii)
any other financial institution approved by the Agent, such approval not to be
unreasonably withheld, and, unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with Section
12.01, the Borrower, such approval not to be unreasonably withheld or delayed by
the Borrower or the Agent and such approval to be deemed given by the Borrower
if no objection is received by the assigning Lender and the Agent from the
Borrower within five Business Days after written notice of such proposed
assignment has been provided by the assigning Lender to the Borrower; provided,
however, that neither the Borrower nor an affiliate of the Borrower shall
qualify as an Eligible Assignee; and provided, further, that Borrower may
withhold its consent if by reason of an assignment Borrower will incur any
increased costs or withholding of taxes under Article IV;
"Eligible Securities" means the following obligations provided such securities
are authorized to be acquired under the Borrower's Cash Management Account
Investment Guidelines (the "Guidelines"):
(a) Government Securities;
(b) the following debt securities of the following agencies or
instrumentalities of the United States of America if at all times the full
faith and credit of the United States of America is pledged to the full and
timely payment of all interest and principal thereof:
(i) all direct or fully guaranteed obligations of the United States
Treasury; and
(ii) mortgage-backed securities and participation certificates
guaranteed by the Government National Mortgage Association;
(c) the following obligations of the following agencies or
instrumentalities of the United States of America:
(i) participation certificates and debt obligations of the Federal
Home Loan Mortgage Corporation;
(ii) consolidated debt obligations, and obligations secured by a
letter of credit, of the Federal Home Loan Banks; and
(iii) debt obligations and mortgage-backed securities of the Federal
National Mortgage Association which have not had the interest portion
thereof severed therefrom;
(d) obligations of any corporation organized under the laws of any state of
the United States of America or under the laws of any other nation, payable
in the United States of America, expressed to mature not later than 92 days
following the date of issuance thereof and rated in an investment grade
rating category by S&P and Moody's;
(e) interest bearing demand or time deposits issued by a Lender or
certificates of deposit maturing within one year from the date of
acquisition issued by a bank or trust company organized under the laws of
the United States or of any state thereof having capital surplus and
undivided profits aggregating at least $400,000,000 and being rated A- or
better by S&P or A-3 or better by Moody's;
(f) Repurchase Agreements;
(g) Pre-Refunded Municipal Obligations;
(h) shares of mutual funds which invest in obligations described in
paragraphs (a) through (g) above, the shares of which mutual funds are at
all times rated "AAA" by S&P;
(i) asset-backed remarketed certificates of participation representing a
fractional undivided interest in the assets of a trust, which certificates
are rated at least "A-1" by S&P and "P-1" by Moody's; and
(j) those securities which comply with the Borrower's Guidelines, so long
as the Agent shall have approved in writing such Guidelines.
Obligations listed in paragraphs (a), (b) and (c) above which are in
book-entry form must be held in a trust account with the Federal Reserve
Bank or with a clearing corporation or chain of clearing corporations which
has an account with the Federal Reserve Bank;
'EMU' means the European economic and monetary union;
"Environmental Laws" means any federal, state or local statute, law, ordinance,
code, rule, regulation, order, decree, permit or license regulating, relating
to, or imposing liability or standards of conduct concerning, any environmental
matters or conditions, environmental protection or conservation, including
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as amended;
the Toxic Substances Control Act, as amended; the Clean Air Act, as amended; the
Clean Water Act, as amended; together with all regulations promulgated
thereunder, and any other "Superfund" or "Superlien" law.
"ERISA" means, at any date, the Employee Retirement Income Security Act of 1974,
as amended, and the regulations thereunder, all as the same shall be in effect
at such date;
'Euro' means the lawful currency of the EMU;
"Euro Business Day" means a Business Day on which the relevant international
financial markets are open for the transaction of the business contemplated by
this Agreement in London, England and New York, New York;
'Eurodollar Loan' means a Loan for which the rate of interest is determined by
reference to the Eurodollar Rate;
"Eurodollar Rate" means, for the Interest Period for any Eurodollar Loan, the
rate of interest per annum determined pursuant to the following formula:
Eurodollar Interbank Offered Rate Applicable
Rate = 1-Eurodollar Reserve + Margin
Requirement
"Eurodollar Reserve Requirement" means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against in the case of
Eurodollar Loans, Eurocurrency liabilities (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks with
respect to (i) any category of liabilities which includes deposits by reference
to which the Eurodollar Rate is to be determined, or (ii) any category of
extensions of credit or other assets which include Eurodollar Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the effective date
of any change in the Eurodollar Reserve Percentage;
"Event of Default" means any of the occurrences set forth as such in Section
10.01 hereof;
"Existing Letters of Credit" means those Letters of Credit issued by
NationsBank, which are outstanding on the Closing Date and which are described
in Schedule1.02 attached hereto;
'5 Year Commitment' means, with respect to each Lender, the obligation of such
Lender to make Advances to the Borrower up to an aggregate principal amount at
any one time outstanding equal to such Lenders Applicable Commitment Percentage
of the Total 5 Year Commitment;
'5 Year Facility' means the revolving credit facility providing for loans of up
to $350,000,000 to the Borrower described in Section 2.01(b);
'5 Year Loan' means a Loan or Advance made to the Borrower pursuant to the 5
Year Facility;
'5 Year Notes' means, collectively, the promissory notes of the Borrower
evidencing 5 Year Loans executed and delivered to the Lenders as provided in
Section 2.07(b) hereof substantially in the form attached hereto as Exhibit F-2,
with appropriate insertions as to amounts, dates and names of Lenders;
'5 Year Termination Date' means (i) Stated 5 Year Termination Date or (ii) such
earlier date of termination of Lenders obligations pursuant to Section 10.01
upon the occurrence of an Event of Default or (iii) such date as the Borrower
may voluntarily permanently terminate the 5 Year Facility (including the Swing
Line Facility) and the Competitive Bid Facility by payment in full of all
outstanding 5 Year Loans (including the discharge of all Obligations to the
Lenders and NationsBank with respect to Letters of Credit, Participations, Swing
Line Loans and Competitive Bid Loans);
"Federal Funds Rate" means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the agent (in its
individual capacity) on such day on such transactions as determined by the
Agent;
"Fiscal Year" means the twelve month period of the Borrower beginning January 1
and ending December 31 of the same calendar year;
'Foreign Benefit Law' means any applicable statute, law, ordinance, code, rule,
regulation, order or decree of any foreign nation or any province, state,
territory, protectorate or other political subdivision thereof regulating,
relating to, or imposing liability or standards of conduct concerning any
pension, retirement, healthcare, death, disability or other employee benefit
plan;
"Four-Quarter Period" means a period of four full consecutive fiscal quarter
periods, taken together as one accounting period;
'Funding Bank' means any banking institution approved by the Agent located
within a country which countrys currency constitutes an Alternative Currency;
"Generally Accepted Accounting Principles" means those principles of accounting
set forth in pronouncements of the Financial Accounting Standards Board, the
American Institute of Certified Public Accountants or which have other
substantial authoritative support and are applicable in the circumstances as of
the date of a report, as such principles are from time to time supplemented and
amended;
"Government Securities" means direct obligations of, or obligations the timely
payment of principal and interest on which are fully and unconditionally
guaranteed by, the United States of America;
"Governmental Authority" shall mean any Federal, state, municipal, national or
other governmental department, commission, board, bureau, agency or
instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative or judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether
of a state of the United States, the United States or a foreign governmental
entity;
"Guarantors" means each Material Subsidiary of the Borrower who shall deliver to
the Agent a Guaranty at the Closing Date and all Receivables Subsidiaries;
"Guaranty Agreement" means that certain Guaranty and Suretyship Agreement dated
as of even date hereof in favor of the Agent, for the benefit of the Lenders, as
the same may be amended, modified or supplemented;
"Hazardous Material" means and includes any pollutant, contaminant or hazardous,
toxic or dangerous waste, substance or material (including, without limitation
petroleum products, asbestos-containing material and lead), the generation,
handling, storage, disposal, treatment, release, discharge or emission of which
is subject to any Environmental Law;
"Indebtedness" means with respect to any Person, without duplication, all
Indebtedness for Money Borrowed, all indebtedness of such Person for the
acquisition of property, all indebtedness secured by any Lien on the property of
such Person whether or not such indebtedness is assumed, all liability of such
Person by way of endorsements (other than for collection or deposit in the
ordinary course of business), all Contingent Obligations, all letters of credit,
all Rate Hedging Obligations and other items which in accordance with Generally
Accepted Accounting Principles is classified as a liability on a balance sheet
other than accrued expenses and accrued taxes; but excluding all accounts
payable in the ordinary course of business so long as payment therefor is due
within one year; provided that in no event shall the term Indebtedness include
partners' capital, surplus and retained earnings, minority interest in Persons,
lease obligations (other than pursuant to Capital Leases), reserves for current
and deferred income taxes and investment credits, other deferred credits and
reserves, and deferred compensation obligations;
"Indebtedness for Money Borrowed" means all indebtedness in respect of money
borrowed, including without limitation all Capital Leases and the deferred
purchase price of any property or asset, evidenced by a promissory note, bond or
similar written obligation for the payment of money (including, but not limited
to, conditional sales or similar title retention agreements) and the undrawn
amount of all Letters of Credit;
"Interbank Offered Rate" means, with respect to any Eurodollar Loan, for the
Interest Period applicable thereto, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Dow Jones Telerate Page 3750
(or any successor page) as the London interbank offered rate for deposits in
Dollars or such other applicable page in the case of an Alternative Currency at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term Interbank Offered Rate shall
mean, for any Eurodollar Loan for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars or the Alternative Currency, as the case may be, at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if necessary,
to the nearest 1/100th of 1%);
"Interest Period" (a) for each Eurodollar Loan means a period commencing on the
date such Eurodollar Loan is made or Converted and each subsequent period
commencing on the last day of the immediately preceding Interest Period for such
Eurodollar Loan, and ending, at the Borrower's option, on the date one, two,
three or six months thereafter as notified to the Agent by the Authorized
Representative three (3) Business Days prior to the beginning of such Interest
Period in the case of a Eurodollar Loan in Dollars and four (4) Business Days in
the case of a Eurodollar Loan in an Alternative Currency; provided, that,
(i) if the Authorized Representative fails to notify the Agent of the
length of an Interest Period three (3) Business Days in the case of a
Eurodollar Loan in Dollars and four (4) Business Days in the case of a
Eurodollar Loan in an Alternative Currency prior to the first day of such
Interest Period, the Loan for which such Interest Period was to be
determined shall be deemed to be a Base Loan in Dollars as of the first day
thereof;
(ii) if an Interest Period for a Eurodollar Loan would end on a day which
is not a Business Day such Interest Period shall be extended to the next
Business Day (unless such extension would cause the applicable Interest
Period to end in the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day); and
(iii) on any day, with respect to all Revolving Credit Loans and
Competitive Bid Loans, there shall not be in effect more than seven (7)
Interest Periods;
(b) for each Competitive Bid Loan means the period commencing on the date
of such Loan and ending on such date as may be mutually agreed upon by the
Borrower and the Lender or Lenders making such Competitive Bid Loan or
Loans, as the case may be, comprising such Competitive Bid Loan; provided
that no Interest Period for a Competitive Bid Loan shall be for a period of
less than seven nor greater than 120 days;
'Interest Rate Selection Notice' means the telephonic or telefacsimile request
of an Authorized Representative to elect a subsequent Interest Period for or to
convert a Loan or Loans of any Type, as such election or conversion shall be
otherwise permitted herein. Any Interest Rate Selection Notice shall be binding
on and irrevocable by the Borrower and, if given by telephone, shall be
confirmed by facsimile transmission delivered to the Agent, or in the case of
Swing Line Loans, NationsBank, effective upon receipt, on the same Business Day
upon which the telephonic request is made, by the Authorized Representative in
the form attached hereto as Exhibit E and incorporated herein by reference;
"LC Account Agreement" means the LC Account Agreement dated as of the date
hereof between the Borrower and the Agent, as amended or modified from time to
time;
"Letter of Credit" means a standby letter of credit issued by NationsBank for
the account of the Borrower in favor of a Person advancing credit or securing an
obligation on behalf of the Borrower including the Existing Letters of Credit;
"Letter of Credit Facility" means the facility described in Article III hereof
providing for the issuance by NationsBank for the account of the Borrower of
Letters of Credit in an aggregate stated amount at any time outstanding not
exceeding the Total Letter of Credit Commitment;
"Letter of Credit Outstandings" means, as of any date of determination, the
aggregate amount remaining undrawn under all Letters of Credit plus
Reimbursement Obligations then outstanding;
"Lien" means any interest in property securing any obligation owed to, or a
claim by, a Person other than the owner of the property, whether such interest
is based on the common law, statute or contract, and including but not limited
to the lien or security interest arising from a mortgage, encumbrance, pledge,
security agreement, conditional sale or trust receipt or a lease, consignment or
bailment for security purposes. For the purposes of this Agreement, the Borrower
and its Subsidiaries shall be deemed to be the owners of any property which any
of them have acquired or hold subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has been
retained by or vested in some other Person for security purposes;
"Loan" or "Loans" means any borrowing under the Revolving Credit Loans, Swing
Line Loans or Competitive Bid Loans;
"Loan Documents" means this Agreement, the Notes, the Guaranty Agreements, the
Applications and Agreements for Letters of Credit, the LC Account Agreement and
all other instruments and documents heretofore or hereafter executed or
delivered to and in favor of the Agent for the benefit of the Lenders in
connection with the Loans or the Letters of Credit made, issued or created under
this Agreement as the same may be amended, modified or supplemented from the
time to time;
'Loan Parties' means the Borrower and the Guarantors;
'Material Adverse Effect' means a material adverse effect on (i) the business,
properties, operations or condition, financial or otherwise, of the Borrower and
its Subsidiaries, taken as a whole, (ii) the ability of the Borrower to pay or
perform its obligations, liabilities and indebtedness under the Loan Documents
as such payment or performance becomes due in accordance with the terms thereof,
or (iii) the rights, powers and remedies of the Agent or any Lender under any
Loan Document or the validity, legality or enforceability thereof (including for
purposes of clauses (ii) and (iii) the imposition of burdensome conditions with
respect to such Loan Documents);
Material Subsidiary means those Subsidiaries of Borrower listed on Schedule
1.03 other than those indicated as inactive and to be liquidated;
"Moody's" means Moody's Investors Service, Inc., a Delaware corporation;
"Multi-employer Plan" means an employee pension benefit plan covered by Title IV
of ERISA and in respect of which the Borrower or any Subsidiary is an "employer"
as described in Section 4001(b) of ERISA, which is also a multi-employer plan as
defined in Section 4001(a)(3) of ERISA;
"Net Funded Indebtedness" means Consolidated Funded Indebtedness less cash and
Eligible Securities (other than those described in clause (j) which are not
otherwise permitted in clauses (a) through (i) of the definition of Eligible
Securities) having a maturity of less than one year aggregating in excess of
$25,000,000;
"Notes" means, collectively, the 5 Year Notes, the 364 Day Notes, the Swing Line
Note and the Competitive Bid Notes which are to be delivered to the Lenders;
"Obligations" means the obligations, liabilities and Indebtedness of the
Borrower with respect to (i)the principal and interest on the Loans as
evidenced by the Notes, (ii)the Reimbursement Obligations, (iii) all
liabilities of Borrower to the Lenders which arise under a Swap Agreement,
and (iv) the payment and performance of all other obligations, liabilities and
Indebtedness of the Borrower to the Lenders hereunder, under any one or more of
the other Loan Documents or with respect to the Loans;
'Outstanding 5 Year Obligations' means the sum of (i) the outstanding 5 Year
Loans, (ii) Outstanding Letters of Credit, (iii) Swing Line Outstandings and
(iv) outstanding Competitive Bid Loans, all as at the date of determination;
'Outstanding Letters of Credit' means all undrawn amounts of Letters of Credit
plus Reimbursement Obligations;
'Outstanding 364 Day Obligations' means the sum of all outstanding 364 Day Loans
as at the date of determination;
"Participation" means (i) with respect to any Lender (other than NationsBank)
and a Letter of Credit, the extension of credit represented by the participation
of such Lender hereunder in the liability of NationsBank in respect to a Letter
of Credit issued by NationsBank in accordance with the terms hereof and (ii)
with respect to any Lender (other than NationsBank) and a Swing Line Loan, the
extension of credit represented by the participation of such Lender hereunder in
the liability of NationsBank in respect of a Swing Line Loan made by NationsBank
in accordance with the terms hereof;
'Permitted Liens' means:
(a) Liens existing on the Closing Date set forth on Schedule 7.01(g);
(b) any Lien for taxes not yet due or taxes or assessments or other
governmental charges which are being actively contested in good faith by
appropriate proceedings;
(c) any Liens, pledges or deposits in connection with workers compensation
or social security, assessments or other similar charges or deposits
incidental to the conduct of the business of the Borrower or any Subsidiary
or the ownership of any of their properties which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit and which do not in the aggregate materially detract from the value
of their properties or materially impair the use thereof in the operation
of their businesses;
(d) any Lien existing on any properties of any corporation at the time it
becomes a Subsidiary, or existing prior to the time of acquisition upon any
properties acquired by the Borrower or any Subsidiary through purchase,
merger, consolidation or otherwise, whether or not assumed by the Borrower
or such Subsidiary;
(e) statutory Liens of carriers, warehousemen, mechanics, materialmen and
other Liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by
appropriate proceedings;
(f) pledges or deposits for the purpose of securing a stay or discharge in
the course of any legal proceeding;
(g) Liens consisting of encumbrances in the nature of zoning restrictions,
easements, rights and restrictions of record on the use of real property on
the date of the acquisition thereof and statutory Liens of landlords and
lessors which in any case do not materially detract from the value of such
property or impair the use thereof;
(h) any Lien in favor of the United States of America or any department or
agency thereof, or in favor of any state government or political
subdivision thereof, or in favor of a prime contractor under a government
contract of the United States, or of any state government or any political
subdivision thereof, and, in each case, resulting from acceptance of
partial, progress, advance or other payments in the ordinary course of
business under government contracts of the United States, or of any state
government or any political subdivision thereof, or subcontracts
thereunder;
(i) any Lien renewing, extending, refinancing or refunding any Lien
permitted by clauses (a), (c), (d), (e), (f), (g) or (h) above; provided,
however, that the principal amount secured is not increased, and the Lien
is not extended to other properties.
"Person" means an individual, partnership, corporation, limited liability
company, trust, unincorporated organization, association, joint venture or a
government or agency or political subdivision thereof;
"Pre-Refunded Municipal Obligations" means obligations of any state of the
United States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated, based on the escrow,
in the highest investment rating category by both S&P and Moody's and which have
been irrevocably called for redemption and advance refunded through the deposit
in escrow of Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii) irrevocably
pledged solely to the payment of all principal and interest on such obligations
as the same becomes due and (iii) in a principal amount and bear such rate or
rates of interest as shall be sufficient to pay in full all principal of,
interest, and premium, if any, on such obligations as the same becomes due as
verified by a nationally recognized firm of certified public accountants;
"Prime Rate" means the per annum rate of interest established from time to time
by NationsBank as its prime rate, which rate may not be the lowest rate of
interest charged by NationsBank to its customers;
"Principal Office" means the office of the Agent presently located at 101 North
Tryon Street, 15th Floor, Charlotte, North Carolina 28255, Attention: Agency
Services or such other office and address as the Agent may from time to time
designate in writing to the Borrower;
"Rate Hedging Obligations" means any and all obligations of the Borrower,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (a) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions, including, but not
limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options, puts,
warrants and those commonly known as interest rate "swap" agreements; and (b)
any and all cancellations, buybacks, reversals, terminations or assignments of
any of the foregoing;
'Receivables Subsidiary' means a Subsidiary of the Borrower which principal
business is to acquire accounts receivable from the Borrower and/or its other
Subsidiaries;
"Regulation D" means RegulationD of the Board as the same may be amended or
supplemented from time to time;
"Reimbursement Obligation" shall mean at any time, the obligation of the
Borrower with respect to any Letter of Credit to reimburse NationsBank and the
Lenders to the extent of their respective Participations (including by the
receipt by NationsBank of proceeds of Loans pursuant to Section 2.01(d)(iv)) for
amounts theretofore paid by NationsBank pursuant to a drawing under such Letter
of Credit;
"Repurchase Agreement" means a repurchase agreement entered into with any
financial institution whose debt obligations or commercial paper are rated "A"
by either of S&P or Moody's or "A-1" by S&P or "P-1" by Moody's;
"Required Lenders" means, as of any date, Lenders on such date having Credit
Exposures (as defined below) aggregating at least 51% of the aggregate Credit
Exposures of all the Lenders on such date. For purposes of the preceding
sentence, the amount of the "Credit Exposure" of each Lender shall be equal at
all times to its Revolving Credit Commitment; provided that, if any Lender shall
have failed to pay (x) to NationsBank its Applicable Commitment Percentage of
any Swing Line Loan or (y) to NationsBank its Applicable Commitment Percentage
of any drawing under any Letter of Credit resulting in an outstanding
Reimbursement Obligation, such Lender's Credit Exposure attributable to Swing
Line Loans shall be deemed to be held by NationsBank for purposes of this
definition, and such Lender's Credit exposure attributable to Letters of Credit,
Reimbursement Obligations and the Letter of Credit Commitment shall be deemed to
be held by the applicable Issuing Bank for purposes of this definition;
'Restricted Payment' means (a) any dividend or other distribution, direct or
indirect, on account of any shares of any class of stock of Borrower or any of
its Subsidiaries (other than those payable or distributable solely to the
Borrower or a Subsidiary) now or hereafter outstanding, except a dividend
payable solely in shares of a class of stock to the holders of that class; (b)
any redemption, conversion, exchange, retirement or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any class of
stock of the Borrower or any of its Subsidiaries (other than those payable or
distributable solely to the Borrower or a Subsidiary) now or hereafter
outstanding; (c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
stock of the Borrower or any of its Subsidiaries now or hereafter outstanding;
and (d) any issuance and sale of capital stock of any Subsidiary of the Borrower
(or any option, warrant or right to acquire such stock) other than to the
Borrower;
"Revolving Credit Commitment" means, with respect to each Lender, the obligation
of such Lender to make Advances to the Borrower up to an aggregate principal
amount at any one time outstanding equal to such Lender's Applicable Commitment
Percentage of the Total Revolving Credit Commitment;
"Revolving Credit Facilities" means the facilities described in Section 2.01(a)
and (b) hereof providing for Loans to the Borrower by the Lenders in the
aggregate principal amount of up to the Total Revolving Credit Commitment less
the aggregate amount of Total Outstanding Credit Obligations;
'Revolving Credit Loan' means a Loan made pursuant to either of the Revolving
Credit Facilities;
"S&P" means Standard & Poor's, a division of McGraw-Hill Companies;
"Single Employer Plan" means any employee pension benefit plan covered by Title
IV of ERISA and in respect of which the Borrower or any Subsidiary is an
"employer" as described in Section 4001(b) of ERISA, which is not a
Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at the time of
determination:
(i) the fair value of its assets is in excess of the total amount of its
liabilities, including, without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay its debts as they
mature; and
(iii) it has capital sufficient to carry on its business as conducted and
as proposed to be conducted;
'Spot Rate of Exchange' means , (i) in determining the Dollar Equivalent Amount
of a specified Alternative Currency amount as of any date, the spot exchange
rate determined by the Agent in accordance with its usual procedures for the
purchase by the Agent of Dollars with such Alternative Currency at approximately
10:00 A.M. on the Business Day that is two (2) Business Days prior to the date
of the Advance or Conversion, and (ii) in determining the Alternative Currency
Equivalent Amount of a specified Dollar amount on any date, the spot exchange
rate determined by the Agent in accordance with its usual procedures for the
purchase by the Agent of such Alternative Currency with Dollars at approximately
10:00 A.M. on the Business Day that is two (2) Business Days prior to the date
of the Advance or Conversion;
'Stated 5 Year Termination Date' means October 27, 2003;
'Strategix Subsidiaries' means any corporation or other entity in which more
than 50% of its outstanding voting stock or more than 50% of all equity interest
was owned directly or indirectly by the Borrower and which were sold to Randstad
US, L.P. pursuant to an Acquisition Agreement dated as of August 27, 1998 among
the Borrower, Randstad US, L.P. and Randstad Holding, n.v.;
"Subsidiary" means any corporation or other entity in which more than 50% of its
outstanding voting stock or more than 50% of all equity interests is owned
directly or indirectly by the Borrower and/or by one or more of the Borrower's
Subsidiaries;
"Swap Agreement" means one or more agreements with respect to Indebtedness
evidenced by the Notes between the Borrower and a Lender, on terms mutually
acceptable to such Borrower and such Lender, which agreements create Rate
Hedging Obligations;
"Swing Line" means the revolving line of credit established by NationsBank in
favor of the Borrower pursuant to Section 2.15;
"Swing Line Loans" means loans made by NationsBank to the Borrower pursuant to
Section 2.15;
'Swing Line Note' means the promissory note of the Borrower evidencing Swing
Line Loans executed and delivered to NationsBank as provided in Section 2.07(d)
hereof substantially in the form attached hereto as Exhibit F-4, with
appropriate insertions as to amounts, dates and names;
"Swing Line Outstandings" means, as of any date of determination, the aggregate
principal amount of all Swing Line Loans then outstanding;
'364 Day Commitment' means, with respect to each Lender, the obligation of such
Lender to make Advances to the Borrower up to an aggregate principal amount at
any one time outstanding equal to such Lenders Applicable Commitment Percentage
of the 364 Day Facility;
'364 Day Facility' means the revolving credit facility providing for Loans of up
to $150,000,000 to the Borrower described in Section 2.01(a);
'364 Day Extension Date' means October 27, 1999 and each date thereafter, if
any, to which the 364 Day Termination Date has been extended pursuant to Section
2.16, but in no event later than the 5 Year Termination Date;
'364 Day Loan' means a Loan or Advance made to the Borrower pursuant to a 364
Day Facility;
'364 Day Notes' means, collectively, the promissory notes of the Borrower
evidencing Loans executed and delivered to the Lenders as provided in Section
2.07(a) hereof substantially in the form attached hereto as Exhibit F-1, with
appropriate insertions as to amounts, dates and names of Lenders;
'364 Day Termination Date' means the earlier of (i) the 364 Day Extension Date
or (ii) the date of termination of Lenders obligations pursuant to Section
10.01 upon the occurrence of an Event of Default, or (iii) such date as the
Borrower may voluntarily permanently terminate the 364 Day Facility by payment
in full of all outstanding 364 Obligations, or (iv) the occurrence of the 5 Year
Termination Date;
'Total Alternative Currency Commitment' means an amount not to exceed
$50,000,000;
'Total 5 Year Commitment' means a principal amount equal to $350,000,000, as
reduced from time to time in accordance with Section 2.08;
"Total Letter of Credit Commitment" means an amount not to exceed $40,000,000;
'Total Outstanding Credit Obligations' means the sum of the Outstanding 5 Year
Obligations and the Outstanding 364 Day Obligations;
"Total Revolving Credit Commitment" means a principal amount equal to
$500,000,000, as reduced from time to time in accordance with Section 2.08;
'Total 364 Day Commitment' means a principal amount equal to $150,000,000, as
reduced from time to time in accordance with Section 2.08;
'Type' shall mean any type of Loan (i.e., a Base Loan or Eurodollar Loan);
"Unused Fee" means the fee payable by Borrower to the Agent for the benefit of
the Lenders pursuant to Section 2.12, such fee to be determined as set forth
under the definition of Applicable Margin;
'Year 2000 Compliant' means all computer applications (including those affected
by information received from its suppliers and vendors) that are material to the
Borrowers or any of its Subsidiaries business and operations will on a timely
basis be able to perform properly data-sensitive functions involving all dates
on and after January 1, 2000;
'Year 2000 Problem' means the risk that computer applications used by the
Borrower and any of its Subsidiaries (including those affected by information
received from its suppliers and vendors) may be unable to recognize and perform
properly data-sensitive functions involving certain dates on and after January
1, 2000.
1.02 Accounting Terms. All accounting terms not specifically defined herein
shall have the meanings assigned to such terms and shall be interpreted in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis.
1.03 Cross References. Unless otherwise specified, references in this Agreement
and in each Loan Document to any Article or Section are references to such
Article or Section of this Agreement or such Loan Document, as the case may be,
and, unless otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of such Section, Article
or definition.
1.04 Accounting and Financial Determinations. Where the character or amount of
any asset or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable, be made in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis except insofar as:
(a) the Borrower shall have elected (with the concurrence of its
independent public accountant and upon prior written notification to the
Lenders) to adopt more recently promulgated Generally Accepted Accounting
Principles (which election shall continue to be effective for subsequent
years); and
(b) the Agent and the Required Lenders shall have consented to such
election (it being understood that such consent may be conditioned upon the
implementation of such changes to Sections 8.01 and 8.02 as are appropriate
to reflect such adoption of more recently promulgated Generally Accepted
Accounting Principles and it being further understood that such consent
shall be deemed to have been given upon the implementation of such
changes).
Upon a change in Generally Accepted Accounting Principles which becomes
effective after the Closing Date which would have a material effect on the
Company's consolidated financial statements and the assets and liabilities
reflected therein or otherwise affect the calculation or the application of
the covenants contained in Article VIII hereof or the calculation of the
Applicable Margin, such change shall not be given effect for purposes
hereof until sixty (60) days from the otherwise effective date of such
change. Prior to such effectiveness the Agent, the Lenders and the Borrower
shall in good faith negotiate to amend the pertinent provisions of this
Agreement to account for such change to the extent appropriate to effect
the substance thereof as of the Closing Date. If such an amendment is not
entered into with respect to any such change, such change shall not be
given effect for purposes hereof.
1.05 General Provisions Relating to Definitions. Terms for which meanings are
defined in this Agreement shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The term
"including" means including, without limiting the generality of any description
preceding such term. Each reference herein to any Person shall include a
reference to such Person's successors and permitted assigns. References to any
instrument defined in this Agreement refer to such instrument as originally
executed or, if subsequently varied, replaced or supplemented from time to time,
as so varied, replaced or supplemented and in effect at the relevant time of
reference thereto.
1.06 Time. Unless otherwise indicated, all references to time are to Charlotte,
North Carolina time.
ARTICLE II
The Loans
2.01 Revolving Credit Facilities
(a) 364 Day Facility. Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make Advances to the Borrower, from time to time
from the Closing Date until the 364 Day Termination Date on a pro rata basis as
to the total borrowing requested by the Borrower under the 364 Day Facility on
any day determined by its Applicable Commitment Percentage up to but not
exceeding the 364 Day Commitment of such Lender, provided, however, that the
Lenders will not be required and shall have no obligation to make any Advance
(i) so long as a Default or an Event of Default has occurred and is continuing
or (ii) if the Agent, in accordance with the terms of this Agreement, has
accelerated the maturity of the Notes as a result of an Event of Default;
provided further, however, that immediately after giving effect to each Advance,
the principal amount of Outstanding 364 Day Obligations shall not exceed the
Total 364 Day Commitment. Within such limits, the Borrower may borrow, repay and
reborrow hereunder, on a Business Day from the Closing Date until, but (as to
borrowings and reborrowings) not including, the 364 Day Termination Date;
provided, however, that (x)no Eurodollar Loan shall be made which has an
Interest Period that extends beyond the 364 Day Termination Date and (y)each
Eurodollar Loan may, subject to the provisions of Section 2.09, be repaid only
on the last day of the Interest Period with respect thereto unless such payment
is accompanied by the additional payment, if any, required by Section 4.05. The
Borrower agrees that if at any time the Outstanding 364 Day Obligations shall
exceed the Total 364 Day Commitment, the Borrower shall immediately reduce the
outstanding principal amount of the 364 Day Loans such that, as a result of such
reduction, the Outstanding 364 Day Obligations shall not exceed the Total 364
Day Commitment.
(b) 5 Year Facility. Subject to the terms and conditions of this Agreement, each
Lender severally agrees to make Advances in Dollars or an Alternative Currency
(as specified in the respective Borrowing Notice) to the Borrower under the 5
Year Facility from time to time from the Closing Date until the 5 Year Revolving
Credit Termination Date on a pro rata basis as to the total borrowing requested
by the Borrower on any day determined by such Lender's Applicable Commitment
Percentage up to but not exceeding a Dollar Value equal to the 5 Year Commitment
of such Lender, provided, however, that the Lenders will not be required and
shall have no obligation to make any such Advance (i) so long as a Default or an
Event of Default has occurred and is continuing or (ii) if the Agent has
accelerated the maturity of any of the Notes as a result of an Event of Default;
provided further, however, that immediately after giving effect to each such
Advance, the Dollar Value of the principal amount of Outstanding 5 Year
Obligations shall not exceed the Total 5 Year Commitment and the Dollar Value of
outstanding Advances in Alternative Currencies shall not exceed the Total
Alternative Currency Commitment. Within such limits, the Borrower may borrow,
repay and reborrow under the 5 Year Facility on a Business Day from the Closing
Date until, but (as to borrowings and reborrowings) not including, the 5 Year
Termination Date; provided, however, that (y)no Eurodollar Loan shall be made
which has an Interest Period that extends beyond the Stated 5 Year Termination
Date and (z)each Eurodollar Loan may, subject to the provisions of Section
2.09, be repaid only on the last day of the Interest Period with respect thereto
unless such payment is accompanied by the additional payment, if any, required
by Section 4.05. The Borrower agrees that if at any time the Outstanding 5 Year
Obligations shall exceed the Total 5 Year Commitment, the Borrower shall
immediately reduce the outstanding principal amount of the 5 Year Loans such
that, as a result of such reduction, the Outstanding 5 Year Obligations shall
not exceed the Total 5 Year Commitment.
(c) Amounts. (i) Each request for an Advance of an Alternative Currency under a
Borrowing Notice shall constitute the Borrowers request for a Loan of the
Dollar Value of the amount of the Alternative Currency specified in such
Borrowing Notice and for such Loan to be made available by the Lenders to the
Borrower in the Alternative Currency Equivalent Amount of such Dollar Value
(determined based on the Advance Date Exchange Rate applicable to such Advance).
The principal amount outstanding on any Loan shall be recorded in the Agents
records in Dollars (in the case of an Advance of an Alternative Currency as if
the Loan had initially been made in Dollars), based on the amount of any
Eurodollar Loan Advance and on the Dollar Value of the initial Advance of an
Alternative Currency, as reduced from time to time by the Dollar Equivalent
Amount (based on the Advance Date Exchange Rate applicable to such Advance) of
any principal payments with respect to such Advance. Advances in an Alternative
Currency shall be limited to Eurodollar Rate Loans. In the event a Eurodollar
Loan of an Alternative Currency is Continued, such election to Continue the
Eurodollar Loan shall be treated as an Advance and the Agent shall notify the
Borrower and the Lenders of the Advance Date Exchange Rate, Interest Period and
the Eurodollar Rate for such Continued Eurodollar Loan. The Lenders shall each
be deemed to have made an Advance to the Borrower of its Applicable Commitment
Percentage of such Loan of an Alternative Currency and the Agent shall apply the
Advance Date Exchange Rate for such new Interest Period to such Continued
Alternative Currency Equivalent Amount to determine the new Dollar Value of such
Eurodollar Loan and shall adjust its books and the Outstanding 5 Year
Obligations. In the event that such adjustment with respect to a Continued Loan
would cause either the total Dollar Value of Outstanding 5 Year Obligations to
exceed the Total 5 Year Commitment or the Dollar Value of such Continued
Alternative Currency Equivalent Amount to exceed the Total Alternative Currency
Commitment, the Borrower shall, immediately on the effective date of such
Continuation, repay (a Rate Adjustment Payment) the portion of such Continued
Loan (applying the new Advance Date Exchange Rate) necessary to ensure that the
total Dollar Value of all Outstanding 5 Year Obligations does not exceed the
Total 5 Year Commitment and that the Dollar Value of such Continued Alternative
Currency Equivalent Amount does not exceed the Total Alternative Currency
Commitment, provided, however, that the Borrower shall not be required to pay
any additional compensation pursuant to Section 4.02 with respect to a
prepayment of a Loan required by this sentence if such prepayment is made
immediately on the effective date of the Continuation giving rise to such
prepayment and no notice of such prepayment shall be required. For the purposes
of determining the maximum amount of Outstanding 5 Year Obligations hereunder,
it is intended by the parties that all Loans shall be the functional equivalent
of Loans made and repaid (based on the applicable Advance Date Exchange Rate for
each Advance) in Dollars. It is recognized that one or more Lenders may elect to
record Loans or Advances in Alternative Currencies. The Agent shall maintain
records sufficient to identify at any time, (A) the Advance Date Exchange Rate
with respect to each Advance, and (B) the portion of the Outstanding 5 Year
Obligations attributable to each Advance.
(ii) Except as otherwise permitted by the Lenders from time to time, the
aggregate unpaid principal amount (including with respect to Loans of
Alternative Currencies the total Dollar Value) of the Outstanding 5 Year
Obligations shall not exceed at any time the Total 5 Year Commitment, and,
in the event there shall be outstanding any such excess, the Borrower shall
immediately make such payments and prepayments as shall be necessary to
comply with this restriction. At no time shall the outstanding principal
amount of Swing Line Loans exceed $20,000,000. Each Loan hereunder, other
than Base Rate Refunding Loans and Swing Line Loans, and each Conversion
under Section 2.08, shall be (A) in the case of Loans made in Dollars, in
an amount of at least $5,000,000, and, if greater than $5,000,000, an
integral multiple of $1,000,000, and (B) in the case of Loans made in an
Alternative Currency, in an amount of at least $5,000,000 (or the
equivalent thereof in any Alternative Currency), and, if greater than
$5,000,000, an integral multiple of $1,000,000 (or the equivalent thereof
if in any Alternative Currency).
(d) Advances and Rate Selection. An Authorized Representative shall give the
Agent (A) at least three (3) Business Days' irrevocable written notice by
telefacsimile transmission of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions, effective upon receipt, of
each Eurodollar Loan (whether representing an additional borrowing hereunder or
the Conversion of a borrowing hereunder) prior to 10:30 A.M., (B) at least four
(4) Business Days' irrevocable notice by telefacsimile transmission of a
Borrowing Notice or Interest Rate Selection Notice (as applicable) with
appropriate insertions, effective upon receipt, of each Alternative Currency
Loan (whether representing an additional borrowing hereunder or the Conversion
of a borrowing hereunder) prior to 10:30 A.M. and (C) irrevocable written notice
by telefacsimile transmission of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions, effective upon receipt, of
each Revolving Credit Loan (other than Base Rate Refunding Loans to the extent
the same are effected without notice pursuant to Section 2.01(d)(iv)) that is a
Base Loan (whether representing an additional borrowing hereunder or the
Conversion of borrowing hereunder) prior to 10:30 A.M. on the day of such
proposed Base Loan. Each such notice shall specify the amount of the borrowing,
whether Dollar or Alternative Currency, the type of Loan (Base Rate or
Eurodollar Rate), the date of borrowing and, if a Eurodollar Loan, the Interest
Period to be used in the computation of interest. Notice of receipt of such
Borrowing Notice or Interest Rate Selection Notice, as the case may be, together
with the amount of each Lender's portion of an Advance requested thereunder,
shall be promptly provided by the Agent to each Lender by telefacsimile
transmission, but (provided the Agent shall have received such notice by 10:30
A.M.) not later than 1:00 P.M. on the same day as the Agent's receipt of such
notice. At approximately 10:00 A.M. two (2) Business Days preceding the date
specified for an Advance of an Alternative Currency, the Agent shall determine
the Advance Date Exchange Rate and the applicable Eurodollar Rate. Not later
than 10:45 A.M. two (2) Business Days preceding the date specified for each
Advance of an Alternative Currency, the Agent shall provide the Borrower and
each Lender notice by telefacsimile transmission of the Advance Date Exchange
Rate applicable to such Advance, and the applicable Alternative Currency
Equivalent Amount of the Loan or Loans required to be made by each Lender on
such date, and the Dollar Value of such Loan or Loans and the applicable
Eurodollar Rate.
(ii) (A) In the case of Advances in Dollars, not later than 2:00 P.M. on
the date specified for each borrowing under this Section 2.01, each Lender
shall, pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances to be made by it on
such day available by wire transfer to the Agent in the amount of its pro
rata share, determined according to such Lender's Applicable Commitment
Percentage of the Revolving Credit Loan or Revolving Credit Loans to be
made on such day. Such wire transfer shall be directed to the Agent at the
Principal Office and shall be in the form of Dollars constituting
immediately available funds. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made available to
the Borrower by delivery of the proceeds thereof to the Borrower's Account
or otherwise as shall be directed in the applicable Borrowing Notice by the
Authorized Representative and reasonably acceptable to the Agent.
(B) In the case of Advances of an Alternative Currency, not later than
10:00 A.M. on the date specified for each Advance, each Lender shall,
pursuant to the terms and subject to the conditions of this Agreement,
make the amount of the Loan or Loans to be made by it on such day
available to the Borrower at the Funding Bank, to the account of the
Agent with the Funding Bank. The amount so received by the Funding
Bank shall, subject to the terms and conditions of the Loan Documents
and upon instruction from the Agent to the Funding Bank on the same
day or immediately preceding day but no later than 10:00 A.M., be made
available to the Borrower by delivery of the Alternative Currency
Equivalent Amount to the Borrowers account with the Funding Bank.
(iii) The Borrower shall have the option to elect the duration of the
initial and any subsequent Interest Periods and to Convert the Loans in
accordance with Section 2.09. Eurodollar Loans and Base Loans may be
outstanding at the same time, provided, however, there shall not be
outstanding at any one time Eurodollar Loans having more than seven (7)
different Interest Periods. If the Agent does not receive a Borrowing
Notice or an Interest Rate Selection Notice giving notice of election of
the duration of an Interest Period or of Conversion of any Loan to or
Continuation of a Loan as a Eurodollar Loan by the time prescribed by
Section 2.01(c) or 2.09, the Borrower shall be deemed to have elected to
Convert such Loans to (or continue such Loan as) a Base Loan in Dollars
until the Borrower notifies the Agent in accordance with Section 2.09.
(iv) Notwithstanding the foregoing, if a drawing is made under any Letter
of Credit, such drawing is honored by NationsBank prior to the Stated 5
Year Termination Date, and the Borrower shall not immediately fully
reimburse NationsBank in respect of such drawing, (A) provided that the
conditions to making a 5 Year Loan as herein provided shall then be
satisfied, the Reimbursement Obligation arising from such drawing shall be
paid to NationsBank by the Agent without the requirement of notice to or
from the Borrower from immediately available funds which shall be advanced
as a Base Rate Refunding Loan by each Lender under the 5 Year Facility in
an amount equal to such Lenders Applicable Commitment Percentage of such
Reimbursement Obligation, and (B) if the conditions to making a 5 Year Loan
as herein provided shall not then be satisfied, each of the Lenders shall
fund by payment to the Agent (for the benefit of NationsBank) in
immediately available funds the purchase from NationsBank of their
respective Participations in the related Reimbursement Obligation based on
their respective Applicable Commitment Percentages of the Total Letter of
Credit Commitment. If a drawing is presented under any Letter of Credit in
accordance with the terms thereof and the Borrower shall not immediately
reimburse NationsBank in respect thereof, then notice of such drawing or
payment shall be provided promptly by NationsBank to the Agent and the
Agent shall promptly provide notice to each Lender by telephone or
telefacsimile transmission. If notice to the Lenders of a drawing under any
Letter of Credit is given by the Agent at or before 12:00 noon on any
Business Day, each Lender shall, pursuant to the conditions specified in
this Section 2.01(d)(iv), either make a Base Rate Refunding Loan or fund
the purchase of its Participation in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay such amount
to the Agent for the account of NationsBank at the Principal Office in
Dollars and in immediately available funds before 2:30 P.M. on the same
Business Day. If notice to the Lenders of a drawing under a Letter of
Credit is given by the Agent after 12:00 noon on any Business Day, each
Lender shall, pursuant to the conditions specified in this Section
2.01(d)(iv), either make a Base Rate Refunding Loan or fund the purchase of
its Participation in the amount of such Lender's Applicable Commitment
Percentage of such drawing or payment and shall pay such amount to the
Agent for the account of NationsBank at the Principal Office in Dollars and
in immediately available funds before 12:00 noon on the next following
Business Day. Any such Base Rate Refunding Loan shall be advanced as, and
shall continue as, a Base Loan unless and until the Borrower Converts such
Base Loan in accordance with the terms of Section 2.09.
2.02 Competitive Bid Loans
(a) In addition to Revolving Credit Loans, at any time prior to the 5 Year
Termination Date and provided no Default or Event of Default exists hereunder,
the Borrower may, as set forth in this Section 2.02, request the Lenders to make
offers to make Competitive Bid Loans under the 5 Year Facility to the Borrower
in Dollars. The Lenders may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.02. Competitive Bid Loans shall bear
interest at the Absolute Rate. There may be no more than seven (7) different
Interest Periods, for both Revolving Credit Loans and Competitive Bid Loans
outstanding at the same time (for which purpose Interest Periods for each
Revolving Credit Loan and each Competitive Bid Loan shall be deemed to be
different Interest Periods even if they are coterminous). The aggregate
principal amount of all outstanding Competitive Bid Loans, together with the sum
of all other Outstanding 5 Year Obligations, shall not exceed the Total 5 Year
Commitment at any time. The aggregate principal amount of all outstanding
Competitive Bid Loans shall not exceed one hundred percent (100%) of the Total 5
Year Commitment at any time. No Competitive Bid Loan shall have a maturity date
subsequent to the 5 Year Termination Date. The aggregate outstanding principal
amount of Competitive Bid Loans of any Lender shall not at any time exceed such
Lenders 5 Year Commitment.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it
shall give the Agent (which shall promptly notify the Lenders) notice (a
"Competitive Bid Quote Request") to be received no later than 11:00 a.m. on the
fourth Business Day next preceding the date of borrowing proposed therein (or
such other time and date as the Borrower and the Agent, with the consent of the
Required Lenders, may agree). The Borrower may request the Agent to issue offers
to make Competitive Bid Loans for up to two (2) different Interest Periods in a
single notice; provided that the request for each separate Interest Period shall
be deemed to be a separate Competitive Bid Quote Request for a separate
borrowing (a "Competitive Bid Borrowing") and there shall not be outstanding at
any one time more than four (4) Competitive Bid Borrowings. Each such
Competitive Bid Quote Request shall be substantially in the form of ExhibitH
attached hereto and incorporated herein by reference and shall specify as to
each Competitive Bid Borrowing:
(i) the proposed date of such borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Competitive Bid Borrowing, which shall be
at least $10,000,000 (or in increments of $1,000,000 in excess thereof) but
shall not cause the limits specified in Section 2.02(a) hereof to be
violated;
(iii) the duration of the Interest Period applicable thereto; and
(iv) the date on which the Competitive Bid Quotes are to be submitted if it
is before the proposed date of borrowing (the date on which such
Competitive Bid Quotes are to be submitted is called the "Quotation Date").
Except as otherwise provided in this Section 2.02(b), no more than two (2)
Competitive Bid Quote Requests shall be given within five (5) Business Days
(or such other number of days as the Borrower and the Agent, with the
consent of the Required Lenders, may agree) of any other Competitive Bid
Quote Request. Together with each Competitive Bid Quote Request which the
Borrower requires the Agent to issue pursuant to this Section 2.02(b), the
Borrower shall pay to the Agent for the account of the Agent a bid
administration fee of $1,500.00 per Competitive Bid Borrowing.
(c) (i) Each Lender may submit one or more Competitive Bid Quotes, each
containing an offer to make a Competitive Bid Loan in response to any
Competitive Bid Quote Request; provided that, if the Borrowers request under
Section 2.02(b) hereof specified more than one Interest Period, such Lender may
make a single submission containing one or more Competitive Bid Quotes for each
such Interest Period. Each Competitive Bid Quote must be submitted to the Agent
not later than 9:30 a.m. on the Quotation Date (or such other time and date as
the Borrower and the Agent, with the consent of the Required Lenders, may agree)
provided that any Competitive Bid Quote may be submitted by the Agent (or its
Applicable Lending Office) only if the Agent (or such Applicable Lending Office)
notifies the Borrower of the terms of the offer contained therein not later than
9:15 a.m. on the Quotation Date. Subject to Articles IV, VI and X hereof, any
Competitive Bid Quote so made shall be irrevocable except with the consent of
the Agent given on the written instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be substantially in the form of
Exhibit G attached hereto and incorporated herein by reference and shall
specify:
(A) the proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid Loan for which each
such offer is being made, which principal amount shall be at least
$5,000,000 (or in increments of $1,000,000 in excess thereof);
provided that the aggregate principal amount of all Competitive Bid
Loans for which a Lender submits Competitive Bid Quotes (x) may not
exceed the 5 Year Commitment of such Lender and (y) may not exceed the
principal amount of the Competitive Bid Borrowing for a particular
Interest Period for which offers were requested;
(C) the rate of interest per annum (rounded upwards, if necessary, to
the nearest 1/10,000th of 1%) offered for each such Competitive Bid
Loan (the "Absolute Rate"); and
(D) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and the Borrower, no Competitive
Bid Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the
applicable Competitive Bid Quote Request and, in particular, no
Competitive Bid Quote may be conditioned upon acceptance by the
Borrower of all (or some specified minimum) of the principal amount of
the Competitive Bid Loan for which such Competitive Bid Quote is being
made.
(d) The Agent shall, as promptly as practicable after the Competitive Bid Quote
is submitted (but in any event not later than 10:30 A.M. Charlotte, North
Carolina time on the Quotation Date or such other time and date as the Borrower
and the Agent, with the consent of the Required Lenders, may agree), notify the
Borrower of the terms (i) of any Competitive Bid Quote submitted by a Lender
that is in accordance with Section 2.02(c) hereof and (ii) of any Competitive
Bid Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Agent unless such subsequent Competitive Bid Quote is
submitted solely to correct a manifest error in such former Competitive Bid
Quote. The Agents notice to the Borrower shall specify (A) the aggregate
principal amount of the Competitive Bid Borrowing for which orders have been
received and (B) the respective principal amounts and Absolute Rates so offered
by each Lender (identifying the Lender that made each Competitive Bid Quote).
(e) Not later than 11:00 A.M. on the Quotation Date (or such other time and date
as the Borrower and the Agent, with the consent of the Required Lenders, may
agree), the Borrower shall notify the Agent of its acceptance or nonacceptance
of the offers so notified to it pursuant to Section 2.02(d) hereof (and the
failure of the Borrower to give such notice by such time shall constitute
nonacceptance) and the Agent shall promptly notify each affected Lender. In the
case of acceptance, such notice shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may accept any
Competitive Bid Quote in whole or in part (provided that any Competitive Bid
Quote accepted in part shall be at least $5,000,000 or in increments of
$1,000,000 in excess thereof); provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing may
not exceed the applicable amount set forth in the related Competitive Bid
Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing shall
be at least $5,000,000 (or an increment of $1,000,000 in excess thereof)
but shall not cause the limits specified in Section2.02(a) hereof to be
violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes for
any Interest Period may be made only in ascending order of Absolute Rates,
beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quote where such
Competitive Bid Quote fails to comply with Section 2.02(c)(ii) hereof or
otherwise fails to comply with the requirements of this Agreement
(including, without limitation, Section 2.02(a) hereof).
Any of the conditions above notwithstanding, the Borrower may, in its sole
discretion, accept a Competitive Bid Quote that does not contain the lowest
Absolute Rate where acceptance of the Competitive Bid Quote containing the
lowest Absolute Rate would cause the Outstanding 5 Year Obligations owing
to a Lender or Lenders offering the lowest Absolute Rate to exceed the
Total 5 Year Commitment.
If Competitive Bid Quotes are made by two or more Lenders with the same
Absolute Rates for a greater aggregate principal amount than the amount in
respect of which Competitive Bid Quotes are accepted for the related
Interest Period after the acceptance of all Competitive Bid Quotes, if any,
of all lower Absolute Rates offered by any Lender for such related Interest
Period, the principal amount of Competitive Bid Loans in respect of which
such Competitive Bid Quotes are accepted shall be allocated by the Borrower
among such Lenders as nearly as possible (in amounts of at least $1,000,000
or in increments of $100,000 in excess thereof) in proportion to the
aggregate principal amount of such Competitive Bid Quotes. Determinations
by the Borrower of the amounts of Competitive Bid Loans and the lowest bid
after adjustment as provided in Section 2.02(e)(iii) shall be conclusive in
the absence of manifest error.
(f) Any Lender whose offer to make any Competitive Bid Loan has been accepted
shall, not later than 1:00 p.m. on the date specified for the making of such
Loan, make the amount of such Loan available to the Agent at the Principal
Office in Dollars and in immediately available funds, for account of the
Borrower. The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower on such date by
depositing the same, in Dollars and in immediately available funds, in the
Borrowers Account.
2.03 Payment of Interest. (a) The Borrower shall pay interest (i) to the Agent
at the Principal Office for the account of each Lender on the outstanding and
unpaid principal amount of each Revolving Credit Loan made by such Lender in
Dollars for the period commencing on the date of such Loan until such Loan shall
be due at the Eurodollar Rate or the Base Rate, as elected or deemed elected by
the Borrower or otherwise applicable to such Loan as herein provided, (ii) to
the Agent at the Principal Office for the account of each Lender on the
outstanding and unpaid principal amount of each Revolving Credit Loan made by
such Lender in an Alternative Currency, such payment to be made in the
Alternative Currency, (iii) to the Agent at the Principal Office for the account
of the Lender making a Competitive Bid Loan, at the Absolute Rate, and (iv) to
the Agent in the case of each Swing Line Loan, at the Adjusted CD Rate;
provided, however, that if any amount shall not be paid when due (at maturity,
by acceleration or otherwise), all amounts outstanding hereunder shall bear
interest thereafter at the Default Rate from the date such amount was due and
payable until the date such amount is paid in full.
(b) Interest on each Revolving Credit Loan, Competitive Bid Loan and Swing
Line Loan shall be computed on the basis of a year of 360 days and
calculated for the actual number of days elapsed. Interest on each
Revolving Credit Loan and Competitive Bid Loan shall be paid (i)quarterly
in arrears on the last Business Day of each March, June, September and
December, commencing December 31, 1998, for each Base Loan and Swing Line
Loan, (ii) on the last day of the applicable Interest Period for each
Eurodollar Loan and, if such Interest Period extends for more than three
(3) months, at intervals of three (3) months after the first day of such
Interest Period, and (iii) upon the 5 Year Termination Date in the case of
5 Year Loans and the 364 Day Termination Date in the case of 364 Day Loans.
Interest payable at the Default Rate shall be payable on demand.
2.04 Payment of Principal. The principal amount of the Outstanding 364 Day
Obligations and Outstanding 5 Year Obligations shall be due and payable to the
Agent for the benefit of each Lender in full on the 364 Day Termination Date in
the case of 364 Day Loans and the 5 Year Termination Date in the case of 5 Year
Loans, or earlier as specifically provided herein. Such principal amount shall
be recorded in Dollars as set forth in Section 2.01. The principal amount of all
Competitive Bid Loans shall be due and payable to the Agent for the benefit of
the Lender making such Competitive Bid Loans in full on the last day of the
Interest Period therefor, or earlier as herein expressly provided. The repayment
of such principal amount of Alternative Currency Loans shall be made in the
appropriate Alternative Currency as follows: the portion of the Outstanding 5
Year Loans attributable to each specified Advance (or the Continuation or
Conversion thereof) (as determined from the Agents records) shall be repaid in
the same Alternative Currency and in the same amount as such Advance. The
principal amount of any Base Loan may be prepaid in Dollars in whole or in part
at any time. The principal amount of any Eurodollar Loan may be prepaid only at
the end of the applicable Interest Period unless the Borrower shall pay to the
Agent for the account of the Lenders the additional amount, if any, required
under Section 4.02. All prepayments of Revolving Credit Loans made by the
Borrower shall be in the amount of $5,000,000 (or the equivalent thereof in any
Alternative Currency) or such greater amount which is an integral multiple of
$1,000,000 (or the equivalent thereof in any Alternative Currency), or the
amount equal to all outstanding 364 Day Loans or 5 Year Loans, as the case may
be, or such other amount as necessary to comply with Section 2.01(b) or Section
2.08.
2.05 Non-Conforming Payments. Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid to the Lenders with respect to the Revolving Credit Loans, shall be made
to the Agent at the Principal Office, for the account of each Lender, in Dollars
in the case Loans made in Dollars and in the same Alternative Currency in the
case of Loans made in Alternative Currencies, in immediately available funds
before 12:30 P.M. on the date such payment is due. The Borrower shall give the
Agent one (1) Business Days prior written notice of any payment of principal,
such notice to be given prior to 10:00 A.M. and to specify (i) the date the
payment will be made and (ii) the Loan to which payment relates. The Agent may,
at the election of the Borrower, but shall not be obligated to, debit the amount
of any such payment which is not made by such time to any ordinary deposit
account, if any, of the Borrower with the Agent.
(b) The Agent shall deem any payment made by or on behalf of the Borrower
hereunder that is not made both (i) in Dollars in the case of Loans made in
Dollars and in the required Alternative Currency in the case of Loans made
in Alternative Currencies in immediately available funds and (ii) prior to
12:30 P.M. on the date payment is due to be a non-conforming payment. Any
such payment shall not be deemed to be received by the Agent until the
later of (i)the time such funds become available funds and (ii)the next
Business Day. Any non-conforming payment may constitute or become a Default
or Event of Default at the determination of the Agent. The Agent shall give
prompt telephonic or telefacsimile notice to the Borrower if a
non-conforming payment constitutes a Default or an Event of Default.
Interest shall continue to accrue on any principal as to which a
non-conforming payment is made until the later of (x) the date such funds
become available funds or (y) the next Business Day at the Default Rate
from the date such amount was due and payable.
(c) In the event that any payment hereunder or under the Notes becomes due
and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day unless provided otherwise
under clause (ii) of the definition of "Interest Period"; provided that
interest shall continue to accrue during the period of any such extension
and provided further, that in no event shall any such due date be extended
beyond the Revolving Credit Termination Date.
2.06 Borrower's Account. The Borrower shall continuously maintain the Borrower's
Account for the purposes herein contemplated.
2.07 Notes. (a) 364 Day Loans made by each Lender, shall be evidenced by, and be
repayable with interest in accordance with the terms of, the 364 Day Note
payable to the order of such Lender in the amount of its Applicable Commitment
Percentage of the Total 364 Day Commitment, which 364 Day Note shall be dated
the Closing Date or such later date pursuant to an Assignment and Acceptance and
shall be duly completed, executed and delivered by the Borrower.
(b) 5 Year Loans made by each Lender shall be evidenced by, and be
repayable with interest in accordance with the term of, the 5 Year Note
payable to the order of such Lender in the amount of its Applicable
Commitment Percentage of the Total 5 Year Commitment, which 5 Year Note
shall be dated the Closing Date or such later date pursuant to an
Assignment and Acceptance and shall be duly completed, executed and
delivered by the Borrower.
(c) Competitive Bid Loans made by any Lender shall be evidenced by, and be
repayable with interest in accordance with the terms of, the Competitive
Bid Note payable to the order of such Lender in the amount of such Lenders
5 Year Commitment (but the aggregate outstanding principal amount of
Competitive Bid Loans may not at any time exceed one hundred percent (100%)
of the Total 5 Year Commitment) which shall be dated the Closing Date or
such later date pursuant to an Assignment and Acceptance and shall be duly
completed, executed and delivered by the Borrower.
(d) Swing Line Loans made by NationsBank shall be evidenced by the Swing
Line Note in the principal amount of $20,000,000, and shall be repayable
with interest in accordance with the terms of the Swing Line Note dated the
Closing Date and duly executed and delivered by the Borrower.
2.08 Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time, upon not less than two (2)
Business Days' written notice to the Agent to reduce either the Total 364 Day
Commitment or the Total 5 Year Commitment, or both, without penalty or premium
(other than amounts, if any, payable under Section 4.05). Each such reduction
shall be in the aggregate amount of $1,000,000 or such greater amount which is
in an integral multiple of $1,000,000, or the entire remaining Total 364 Day
Commitment or Total 5 Year Commitment, as the case may be, and shall permanently
reduce the Total 364 Day Commitment or the Total 5 Year Commitment; provided,
that a reduction made pursuant to Section 9.05 shall be in the amount of the net
proceeds received by the Borrower or its Subsidiaries, such payment to be
applied to permanently reduce the 5 Year Facility first. No such reduction shall
result in the payment of any Eurodollar Loan other than on the last day of the
Interest Period of such Loan unless such prepayment is accompanied by amounts
due, if any, under Section 4.05. Each reduction of the Total 364 Day Commitment
shall be accompanied by payment of the Loans to the extent that the sum of the
Outstanding 364 Day Obligations exceed the Total 364 Day Commitment and each
reduction of the Total 5 Year Commitment shall be accompanied by payment of the
5 Year Loans to the extent the sum of the Outstanding 5 Year Obligations exceed
the Total 5 Year Commitment, after giving effect to such reduction, together
with accrued and unpaid interest on the amounts prepaid.
2.09 Conversions and Elections of Subsequent Interest Periods. Subject to the
limitations set forth below and in Article IV hereof, the Borrower may:
(a) upon delivery, effective upon receipt, of a properly completed Interest
Rate Selection Notice to the Agent on or before 10:30 A.M. time on any
Business Day, Convert all or a part of Eurodollar Loans to Base Loans on
the last day of the Interest Period for such Eurodollar Loans; and
(b) provided that no Default or Event of Default shall have occurred and be
continuing upon delivery, effective upon receipt, of a properly completed
Interest Rate Selection Notice to the Agent on or before 10:30 A.M. three
(3) Business Days' prior to the date of such election or Conversion:
(i) elect a subsequent Interest Period for all or a portion of
Eurodollar Loans to begin on the last day of the then current Interest
Period for such Eurodollar Loans; and
(ii) Convert Base Loans to Eurodollar Loans on any Business Day.
Each election and Conversion pursuant to this Section 2.09 shall be subject
to the limitations on Eurodollar Loans set forth in the definition of
"Interest Period" herein and in Sections 2.01, 2.02 and Article IV. The
Agent shall give written notice to each Lender of such notice of election
or Conversion prior to 2:00 P.M. on the day such notice of election or
Conversion is received. All such Continuations or Conversions of Loans
shall be effected pro rata based on the Applicable Commitment Percentages
of the Lenders.
2.10 Increase and Decrease in Amounts. The amount of the Total 5 Year Commitment
which shall be available to the Borrower shall be reduced by the aggregate
amount of all Letter of Credit Outstandings, all Swing Line Outstandings and all
outstanding Competitive Bid Loans.
2.11 Pro Rata Payments. Except as otherwise provided herein, (a)each payment
and prepayment on account of the principal of and interest on the Loans (other
than Competitive Bid Loans and Swing Line Loans) and the fees described in
Section 2.12 hereof shall be made to the Agent in the aggregate amount payable
to the Lenders for the account of the Lenders pro rata based on their Applicable
Commitment Percentages, (b) each payment of principal and interest on the
Competitive Bid Loans shall be made to the Agent for the account of the Lender
making such Competitive Bid Loan, (c) each payment of principal and interest on
Swing Line Loans shall be made to the Agent for the account of NationsBank, (d)
all payments to be made by the Borrower for the account of each of the Lenders
on account of principal, interest and fees, shall be made without set-off or
counterclaim, and (e) the Agent will distribute such payments when received to
the Lenders as provided for herein.
2.12 Unused Fee. For the period beginning on the Closing Date and ending on the
364 Day Termination Date (or such earlier date on which the 364 Day Facility has
terminated), the Borrower agrees to pay to the Agent, for the pro rata benefit
of the Lenders based on their Applicable Commitment Percentages an Unused Fee
equal to the Applicable Margin per annum for the 364 Day Facility times the sum
of the daily amount by which the Total 364 Day Commitment exceeds the sum of the
average daily Outstanding 364 Day Obligations. For the period beginning on the
Closing Date and ending on the 5 Year Termination Date (or such earlier date on
which the 5 Year Facility has terminated), the Borrower agrees to pay to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages an Unused Fee equal to the Applicable Margin per annum
for the 5 Year Facility times the sum of the daily amount by which the Total 5
Year Commitment exceeds the sum of the average daily Outstanding 5 Year
Obligations (which do not include Swing Line Outstandings in the case of Lenders
and outstanding Competitive Bid Loans). Such payments of fees provided for in
this Section shall be due in arrears on the last Business Day of each March,
June, September and December beginning December 31, 1998 to and on the 364 Day
Termination Date in the case of the 364 Day Facility and 5 Year Termination Date
in the case of the 5 Year Facility (or such earlier date on which such Facility
has terminated). Notwithstanding the foregoing, so long as any Lender fails to
make available any portion of its 364 Day Commitment or 5 Year Commitment when
requested, such Lender shall not be entitled to receive payment of its pro rata
share of such fees until such Lender shall make available such portion. Such fee
shall be calculated on the basis of a year of 360 days for the actual number of
days elapsed.
2.13 Deficiency Avances. No Lender shall be responsible for any default of any
other Lender in respect to such other Lender's obligation to make any Loan or
fund its purchase of any Participation hereunder nor shall the 364 Day
Commitment or 5 Year Commitment of any Lender hereunder be increased as a result
of such default of any other Lender. Without limiting the generality of the
foregoing, in the event any Lender shall fail to advance funds to the Borrower
as herein provided, the Agent may in its discretion, but shall not be obligated
to, advance under the Note in its favor as a Lender evidencing Revolving Credit
Loans all or any portion of such amount or amounts (each, a "deficiency
advance") and shall thereafter be entitled to payments of principal of and
interest on such deficiency advance in the same manner and at the same interest
rate or rates to which such other Lender would have been entitled had it made
such advance under its Note; provided that, upon payment to the Agent from such
other Lender of the entire outstanding amount of each such deficiency advance,
together with accrued and unpaid interest thereon, from the most recent date or
dates interest was paid to the Agent by the Borrower on each Loan comprising the
deficiency advance at the interest rate per annum for overnight borrowing by the
Agent from the Federal Reserve Bank, then such payment shall be credited against
the Note of the Agent evidencing Revolving Credit Loans in full payment of such
deficiency advance and the Borrower shall be deemed to have borrowed the amount
of such deficiency advance from such other Lender as of the most recent date or
dates, as the case may be, upon which any payments of interest were made by the
Borrower thereon. Nothing contained in the foregoing shall be construed in any
way to limit the ability of any Loan Party from pursuing whatever legal remedy
it may have as a result of a Lenders failure to fund its portion of a Loan.
2.14 Use of Proceeds. The proceeds of the Loans made pursuant to the Revolving
Credit Facilities hereunder shall be used by the Borrower for working capital,
capital expenditures and other lawful general corporate purposes including
Acquisitions to the extent permitted herein.
2.15 Swing Line. (a) Notwithstanding any other provision of this Agreement to
the contrary, in order to administer the 5 Year Facility in an efficient manner
and to minimize the transfer of funds between the Agent and the Lenders,
NationsBank shall make available Swing Line Loans in Dollars to the Borrower
prior to the 5 Year Termination Date. NationsBank shall not make any Swing Line
Loan pursuant hereto (i) if, to the actual knowledge of NationsBank, the
Borrower is not in compliance with all the conditions to the making of Loans set
forth in this Agreement, (ii) if after giving effect to such Swing Line Loan,
the Swing Line Outstandings exceed $20,000,000, or (iii) if after giving effect
to such Swing Line Loan, the Outstanding 5 Year Obligations exceed the Total 5
Year Commitment. Swing Line Loans shall be limited to Loans bearing interest at
the Adjusted CD Rate. The Borrower may borrow, repay and reborrow under this
Section 2.15. Unless notified to the contrary by NationsBank, borrowings under
the Swing Line shall be made in the minimum amount of $500,000 or, if greater,
in amounts which are integral multiples of $50,000, or in the amount necessary
to effect a Base Rate Refunding Loan, upon written request by telefacsimile
transmission, effective upon receipt, by an Authorized Representative of the
Borrower made to NationsBank not later than 12:30 P.M. on the Business Day of
the requested borrowing. Each such Borrowing Notice shall specify the amount of
the borrowing and the date of borrowing, and shall be in the form of Exhibit
D-2, with appropriate insertions. Unless notified to the contrary by
NationsBank, each repayment of a Swing Line Loan shall be in an amount which is
an integral multiple of $50,000 or the aggregate amount of all Swing Line
Outstandings. If the Borrower instructs NationsBank to debit any demand deposit
account of the Borrower in the amount of any payment with respect to a Swing
Line Loan, or NationsBank otherwise receives repayment, after 2:00 P.M. on a
Business Day, such payment shall be deemed received on the next Business Day.
(b) Swing Line Loans shall bear interest at the Adjusted CD Rate, the
interest payable on Swing Line Loans is solely for the account of
NationsBank, and all accrued and unpaid interest on Swing Line Loans shall
be payable on the dates and in the manner provided in Sections 2.01(c) and
2.03 with respect to interest on Base Loans. The Swing Line Outstandings
shall be evidenced by the Note delivered to NationsBank pursuant to Section
2.07(d).
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed to
have purchased from NationsBank a Participation therein in an amount equal
to that Lender's Applicable Commitment Percentage of such Swing Line Loan.
Upon demand made by NationsBank, each Lender shall, according to its
Applicable Commitment Percentage of such Swing Line Loan, promptly provide
to NationsBank its purchase price therefor in an amount equal to its
Participation therein. Any Advance made by a Lender pursuant to demand of
NationsBank of the purchase price of its Participation shall be deemed (i)
provided that the conditions to making Loans shall be satisfied, a Base
Rate Refunding Loan under Section 2.01(b) until the Borrower Converts such
Base Loan in accordance with the terms of Section 2.09, and (ii) in all
other cases, the funding by each Lender of the purchase price of its
Participation in such Swing Line Loan. The obligation of each Lender to so
provide its purchase price to NationsBank shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of
Default or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof, may request an
Advance pursuant to Section 2.01(b) in an amount sufficient to repay Swing
Line Outstandings on any date and the Agent shall provide from the proceeds
of such Advance to NationsBank the amount necessary to repay such Swing
Line Outstandings (which NationsBank shall then apply to such repayment)
and credit any balance of the Advance in immediately available funds in the
manner directed by the Borrower pursuant to Section 2.01(d)(ii). The
proceeds of such Advances shall be paid to NationsBank for application to
the Swing Line Outstandings and the Lenders shall then be deemed to have
made Loans in the amount of such Advances. The Swing Line shall continue in
effect until the Revolving Credit Termination Date, at which time all Swing
Line Outstandings and accrued interest thereon shall be due and payable in
full.
2.16 Revolving Credit Facility Extension and Term Loan Option
(a) With the consent of the Lenders (the "Consenting Lenders") having
seventy-five percent (75%) or more of the aggregate Credit Exposures of all
Lenders (any Lender not so consenting being referred to as a "Non-Consenting
Lender"), at each 364 Day Extension Date the Borrower can elect to extend the
364 Day Termination Date for an additional period of 364 days commencing on such
364 Day Extension Date; provided, however, that in no event shall the 364 Day
Termination Date be extended beyond the 5 Year Termination Date.
(b) The Borrower shall notify the Lenders of its request for such an extension
by delivering to the Agent notice of such request signed by an Authorized
Representative not more than sixty (60) days nor less than forty-five (45) days
prior to the applicable 364 Day Extension Date. Notice of receipt of such
request shall be provided by the Agent to the Lenders. The Agent shall notify
the Borrower in writing not later than thirty (30) days nor more than forty-five
(45) days prior to the applicable 364 Day Extension Date of the decision of the
Lenders. Failure by any Lender to respond to a request for an extension shall
constitute a refusal of such Lender to give its consent to such extension.
Failure by the Agent to give such notice to the Borrower as a result of not
receiving the consent of Lenders having seventy-five percent (75%) or more of
the aggregate Credit Exposures of all Lenders to such extension shall constitute
refusal by the Lenders to extend the 364 Day Termination Date.
(c) If less than all of the Lenders consent to any such request which has been
approved pursuant to subsection (a) of this Section 2.16, the Borrower shall
arrange not less than fifteen (15) days prior to the 364 Day Termination Date
(the "Replacement Lender Date") for one or more Consenting Lenders, or for one
or more other banks or financial institutions complying with the requirements
set forth in Section 12.01 (any of the foregoing referred to as an "Assuming
Lender"), as of the 364 Day Extension Date to effect an assignment of all of the
364 Day Commitment (along with an equivalent pro rata portion of the 5 Year
Commitment) of one or more Non-Consenting Lenders for a purchase price equal to
the aggregate principal balance of Revolving Credit Loans then owing to the
Non-Consenting Lender, plus accrued interest and fees owing to the
Non-Consenting Lender, as well as any amounts payable under Section 4.05. The
Borrower shall deliver written notice to the Agent and each Consenting Lender of
such arrangement with any Assuming Lender not less than fifteen (15) days prior
to the 364 Day Termination Date.
(d) On each 364 Day Extension Date, each Assuming Lender shall become a Lender
for all purposes under this Agreement and the other Loan Documents without any
further acknowledgment by or the consent of the other Lenders; provided,
however, that the Agent shall have received not less than ten (10) days prior to
such 364 Day Extension Date an Assignment and Acceptance, effective as of such
364 Day Extension Date, from each Assuming Lender duly executed by such Assuming
Lender and the applicable Non-Consenting Lender with respect to both the 364 Day
Facility and the 5 Year Facility. The Total 364 Day Commitment on the 364 Day
Extension Date shall be equal to the sum, without duplication, of the 364 Day
Commitments of each Assuming Lender and each Consenting Lender.
(e) If on any 364 Day Extension Date the Borrower has not so elected to extend
the 364 Day Termination Date then in effect, or if Consenting Lenders with
sufficient Credit Exposures have not consented to such extension, or if the
Borrower shall not have satisfied requirements of clause (c) of this Section
2.16 with respect to Non-Consenting Lenders, then as of such 364 Day Termination
Date, except as provided otherwise in, and subject to the Borrowers compliance
with the terms of, Section 2.16(f) below, (i) the Total 364 Day Commitment shall
be reduced to zero, and (ii) all 364 Day Outstandings shall be due and payable
in full.
(f) If with respect to any 364 Day Extension Date the Borrower does not so elect
to extend the 364 Day Termination Date then in effect, or if Consenting Lenders
with sufficient Credit Exposures have not consented to such extension, then not
less than fifteen (15) days prior to the 364 Day Termination Date, the Borrower
can elect to convert any or all 364 Day Outstandings as of such date into a term
loan on such date in the original principal amount equal to such 364 Day
Outstandings. 364 Day Outstandings so converted by the Borrower in accordance
with this Section 2.16 shall be referred to as the "Term Loans." The Total 364
Day Commitment shall be permanently reduced on the 364 Day Termination Date to
an amount equal to the aggregate principal amount of the Term Loans on such
date. The Term Loans shall be repaid upon the earlier of one year following the
364 Day Termination or the 5 Year Termination Date. The Term Loans may be
comprised of Base Loans and Eurodollar Loans as the Borrower may elect in
accordance with the provisions of this Article II for 364 Day Loans. The Term
Loans shall bear interest on the same terms as the 364 Day Loans prior to the
conversion to Term Loans until the Continuation or Conversion thereof pursuant
to Section 2.09 hereof. Amounts repaid or prepaid on the Term Loans may not be
reborrowed, and the 364 Day Commitment shall be permanently reduced by any such
amounts.
(g) If on the 364 Day Termination Date the Borrower does not so elect to convert
all of 364 Day Outstandings as of such date to Term Loans as described in (f)
above, then on the 364 Day Termination Date, (i) all 364 Day Outstandings as of
such date which are not so converted shall be due and payable in full and (ii)
the Total 364 Day Commitment shall be reduced to the amount, if any, of 364 Day
Outstandings so converted to Term Loans.
2.17 The Euro.
(a) If, as a result of the implementation of the EMU, (i) any currency available
for borrowing under this Agreement ( a national currency) ceases to be lawful
currency of the state issuing the same and is replaced by the Euro or (ii) any
national currency and the Euro are at the same time both recognized by the
central bank or comparable governmental authority of the state issuing such
currency as lawful currency of such state, then any amount payable hereunder by
any party hereto in such national currency (including, without limitation, any
Advance to be made under this Agreement) shall instead be payable in the Euro
and the amount so payable shall be determined by redenominating or converting
such amount into the Euro at the exchange rate officially fixed by the European
Central Bank for the purpose of implementing the EMU, provided, that to the
extent any EMU legislation provides that an amount denominated either in the
Euro or in the applicable national currency can be paid either in Euros or in
the applicable national currency, each party to this Agreement shall be entitled
to pay or repay such amount in Euros or in the applicable national currency.
Prior to the occurrence of the event or events described in clause (i) or (ii)
of the preceding sentence, each amount payable hereunder in any such national
currency will, except as otherwise provided herein, continue to be payable only
in that national currency.
(b) Borrower shall from time to time, at the request of the Agent, pay to the
Agent for the account of each Lender the amount of any cost or increased cost
incurred by, or of any reduction in any amount payable to or in the effective
return on its capital to, or of interest or other return foregone by, such
Lender or any holding company of such Lender as a result of the introduction of,
changeover to or operation of the Euro in any applicable state.
(c) In addition, this Agreement (including, without limitation, the definition
of Eurodollar Rate) will be amended to the extent determined by the Agent and
Required Lenders (acting reasonably and in consultation with the Borrower) to be
necessary to reflect such implementation of the EMU and change in currency and
to put the Lenders and the Borrower in the same position, so far as possible,
that they would have been in if such implementation and change in currency had
not occurred. Except as provided in the foregoing provisions of this Section, no
such implementation or change in currency nor any economic consequences
resulting therefrom shall (i) give rise to any right to terminate prematurely,
contest, cancel, rescind, alter, modify or renegotiate the provisions of this
Agreement or (ii) discharge, excuse or otherwise affect the performance of any
obligations of the Borrower under this Agreement, any Notes or other Loan
Documents.
ARTICLE III
Letters of Credit
3.01 Letters of Credit. (a) NationsBank agrees, subject to the terms and
conditions of this Agreement, upon request of the Borrower to issue from time to
time for the account of the Borrower Letters of Credit upon delivery to
NationsBank of an Applications and Agreements for Letter of Credit in form and
content acceptable to NationsBank; provided, that the Letter of Credit
Outstandings shall not exceed the Total Letter of Credit Commitment; and
provided, further, that NationsBank shall not issue a Letter of Credit if it has
actual knowledge that the Borrower is not in compliance with the conditions to
making Loans set forth in this Agreement. No Letter of Credit shall be issued by
NationsBank with an expiry date or payment date occurring subsequent to the
fifth Business Day preceding the Stated 5 Year Termination Date. NationsBank
shall not issue any Letter of Credit if, after giving effect thereto, the
Outstanding 5 Year Obligations exceed the Total Revolving Credit Commitment.
(b) Upon completion of a proper Application and Agreement for Letter of
Credit, NationsBank may issue upon request and for the account of Borrower
Letters of Credit payable in an Alternative Currency. For purposes of
determining Letters of Credit Outstandings, any Letter of Credit issued in
an Alternative Currency shall be recorded in the Agents account in Dollars
based on the Alternative Currency Equivalent Amount on the date of issuance
of such Letter of Credit; provided, however, that the Agent shall determine
the Dollar Equivalent Amount of any Letter of Credit issued in an
Alternative Currency on the date of any Advance or Conversion for the
purpose of determining the amount of Letter of Credit Outstandings. Any
draw on a Letter of Credit issued in an Alternative Currency shall be
repaid in the same Alternative Currency Equivalent Amount (determined based
on the Spot Rate of Exchange on the date of drawing under the Letter of
Credit). To the extent that the Agent shall determine at any time that the
sum of (i) the Dollar Value of outstanding 5 Year Loans and outstanding
Letters of Credit, in each case determined on the date of each Advance of a
5 Year Loan or issuance of a Letter of Credit, made or issued in
Alternative Currencies exceeds the Total Alternative Currency Commitment,
the Borrower shall immediately repay Alternative Currency Loans so that
after giving effect to such payment the outstanding Alternative Currency
Loans plus outstanding Letters of Credit issued in an Alternative Currency
do not exceed the Total Alternative Currency Commitment.
3.02 Reimbursement
(a) The Borrower hereby unconditionally agrees to immediately pay to
NationsBank on demand at the Principal Office all amounts required to pay
all drafts drawn under the Letters of Credit and all reasonable expenses
incurred by NationsBank in connection with the Letters of Credit and in any
event and without demand to place in possession of NationsBank (which shall
include Advances under the 5 Year Facility if permitted by Section2.01(d)
hereof and Swing Line Loans if permitted under Section 2.15) sufficient
funds to pay all debts and liabilities arising under any Letter of Credit.
The Borrower's obligations to pay NationsBank under this Section 3.02, and
NationsBank's right to receive the same, shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever.
NationsBank agrees to give the Borrower prompt notice of any request for a
draw under a Letter of Credit. NationsBank may charge any account the
Borrower may have with it for any and all amounts NationsBank pays under a
Letter of Credit, plus charges and reasonable expenses as from time to time
agreed to by NationsBank and the Borrower; provided that to the extent
permitted by Section2.01(d)(iv) and Section 2.15, amounts shall be paid
pursuant to Advances under the 5 Year Facility or, if the Borrower shall
elect, by Swing Line Loans. The Borrower agrees to pay NationsBank interest
on any Reimbursement Obligations from the date of any draw at the Base Rate
plus two percent (2.0%) per annum, or the maximum rate permitted by
applicable law, if lower, such rate to be calculated on the basis of a year
of 360 days for actual days elapsed.
(b) In accordance with the provisions of Section 2.01(d)(iv), NationsBank
shall notify the Agent of any drawing under any Letter of Credit promptly
following the receipt by NationsBank of such drawing.
(c) Each Lender (other than NationsBank) shall automatically acquire on the
date of issuance thereof, a Participation in the liability of NationsBank
in respect of each Letter of Credit in an amount equal to such Lender's
Applicable Commitment Percentage of such liability, and to the extent that
the Borrower is obligated to pay NationsBank under Section 3.02(a), each
Lender (other than NationsBank) thereby shall absolutely, unconditionally
and irrevocably assume, and shall be unconditionally obligated to pay to
NationsBank as hereinafter described, its Applicable Commitment Percentage
of the liability of NationsBank under such Letter of Credit.
(i) Each Lender (including NationsBank in its capacity as a Lender)
shall, subject to the terms and conditions of Article II, pay to the
Agent for the account of NationsBank at the Principal Office in
Dollars and in immediately available funds, an amount equal to its
Applicable Commitment Percentage of any drawing under a Letter of
Credit, such funds to be provided in the manner described in Section
2.01(d)(iv).
(ii) Simultaneously with the making of each payment by a Lender to
NationsBank pursuant to Section 2.01(d)(iv)(B), such Lender shall,
automatically and without any further action on the part of
NationsBank or such Lender, acquire a Participation in an amount equal
to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. The Reimbursement
Obligations of the Borrower shall be immediately due and payable
whether by Advances made in accordance with Section 2.01(d)(iv), Swing
Line Loans made in accordance with Section 2.15, or otherwise.
(iii) Each Lender's obligation to make payment to the Agent for the
account of NationsBank pursuant to Section 2.01(d)(iv) and this
Section 3.02(c), and the right of NationsBank to receive the same,
shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Lender is
obligated to pay but does not pay amounts to the Agent for the account
of NationsBank in full upon such request as required by Section
2.01(d)(iv) or this Section3.02(c), such Lender shall, on demand, pay
to the Agent for the account of NationsBank interest on the unpaid
amount for each day during the period commencing on the date of notice
given to such Lender pursuant to Section2.01(d) until such Lender
pays such amount to the Agent for the account of NationsBank in full
at the interest rate per annum for overnight borrowing by the Agent
from the Federal Reserve Bank.
(iv) In the event the Lenders have purchased Participations in any
Reimbursement Obligation as set forth in clause (ii) above, then at
any time payment (in fully collected, immediately available funds) of
such Reimbursement Obligation, in whole or in part, is received by
NationsBank from the Borrower, NationsBank shall promptly pay to each
Lender an amount equal to its Applicable Commitment Percentage of such
payment from the Borrower.
(d) Promptly following the end of each calendar quarter, NationsBank shall
deliver to the Agent a notice describing the aggregate undrawn amount of all
Letters of Credit at the end of such quarter. Upon the request of any Lender
from time to time, NationsBank shall deliver to the Agent, and the Agent shall
deliver to such Lender, any other information reasonably requested by such
Lender with respect to each Letter of Credit outstanding.
(e) The issuance by NationsBank of each Letter of Credit shall, in addition to
the conditions precedent set forth in Section 6.01 hereof, be subject to the
conditions that such Letter of Credit be in such form and contain such terms as
shall be reasonably satisfactory to NationsBank consistent with the then current
practices and procedures of NationsBank with respect to similar letters of
credit, and the Borrower shall have executed and delivered such other
instruments and agreements relating to such Letters of Credit as NationsBank
shall have reasonably requested consistent with such practices and procedures.
All Letters of Credit shall be issued pursuant to and subject to the Uniform
Customs and Practice for Documentary Credits, 1993 revision, International
Chamber of Commerce Publication No.500 and all subsequent amendments and
revisions thereto.
(f) Without duplication of Section 12.05 hereof, the Borrower hereby agrees to
indemnify and hold harmless NationsBank and each other Lender from and against
any and all claims and damages, losses, liabilities, reasonable costs and
expenses which NationsBank and each other Lender or the Agent may incur (or
which may be claimed against NationsBank and each other Lender by any Person) by
reason of or in connection with the issuance or transfer of or payment or
failure to pay under any Letter of Credit; provided that the Borrower shall not
be required to indemnify NationsBank and each other Lender for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, (i)caused by the willful misconduct or gross negligence of the party to
be indemnified or (ii)caused by the failure of NationsBank to pay under any
Letter of Credit after the presentation to it of a request strictly complying
with the terms and conditions of such Letter of Credit, unless such payment is
prohibited by any law, regulation, court order or decree. The indemnification
and hold harmless provisions of this Section 3.02(f) shall survive repayment of
the Obligations, occurrence of the Revolving Credit Termination Date and
expiration or termination of this Agreement.
(i) any lack of validity or enforceability of the Letter of Credit, the
obligation supported by the Letter of Credit or any other agreement or
instrument relating thereto (collectively, the "Related Documents");
(ii) any amendment or waiver of or any consent to or departure from all or
any of the Related Documents;
(iii) the existence of any claim, setoff, defense (other than the defense
of payment in accordance with the terms of this Agreement) or other rights
which the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the Agent, the
Lenders or any other person or entity, whether in connection with the Loan
Documents, the Related Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between the Borrower and any
beneficiary or any transferee of a Letter of Credit (or any persons or
entities for whom such beneficiary or any such transferee may be acting),
the Agent, the Lender or any other Person;
(v) any draft, statement or any other document presented under the Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal, compromise or other indulgence
or modification granted or agreed to by the Lender, with or without notice
to or approval by the Borrower in respect of any of the Borrower's
Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to release
NationsBank of any liability for actual loss arising as a result of its
gross negligence or willful misconduct or out of the wrongful dishonor by
NationsBank of a proper demand for payment made under and strictly
complying with the terms of any Letter of Credit.
3.03 Letter of Credit Fee. The Borrower agrees to pay to the Agent, for the pro
rata benefit of the Lenders, a fee on the aggregate amount available to be drawn
on each Outstanding Letter of Credit at a rate equal to the Applicable Margin
for a Eurodollar Loan. In addition, the Borrower agrees to pay to NationsBank a
Letter of Credit fronting fee equal to one-eighth of one percent per annum of
Letter of Credit Outstandings. Such payment of fees provided for in this Section
3.03 shall be due with respect to each Letter of Credit quarterly in arrears on
the last Business Day of each March, June, September and December, beginning on
the first such date following issuance of a Letter of Credit. Such fee shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
3.04 Administrative Fees and Reserves. The Borrower shall pay to NationsBank
such administrative fee and other fees, if any, in connection with the Letters
of Credit in such amounts and at such times as NationsBank and the Borrower
shall agree from time to time.
ARTICLE IV
Change in Circumstances
4.01 Increased Cost and Reduced Return
(a) If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office) to any
tax, duty, or other charge with respect to any Absolute Rate Loan,
Eurodollar Loans, its Note, or its obligation to make Absolute Rate Loans
or Eurodollar Loans, or change the basis of taxation of any amounts payable
to such Lender (or its Applicable Lending Office) under this Agreement or
its Note in respect of any Absolute Rate Loans or Eurodollar Loans (other
than taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office or franchise taxes or related taxes imposed on
such Lender);
(ii) shall impose, modify, or deem applicable any reserve, special deposit,
assessment, or similar requirement (other than the Reserve Requirement
utilized in the determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or its Applicable Lending
Office), including the Revolving Credit Commitment of such Lender
hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office) or on
the London interbank market any other condition affecting this Agreement or
its Note or any of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Absolute Rate Loans or Eurodollar Loans or
to reduce any sum received or receivable by such Lender (or its Applicable
Lending Office) under this Agreement or its Note with respect to any
Absolute Rate Loans or Eurodollar Loans, then the Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender
for such increased cost or reduction. If any Lender requests compensation
by the Borrower under this Section 4.01(a), the Borrower may, by notice to
such Lender (with a copy to the Agent), suspend the obligation of such
Lender to make or Continue Loans of the Type with respect to which such
compensation is requested, or to Convert Loans of any other Type into Loans
of such Type, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 4.04 shall
be applicable); provided that such suspension shall not affect the right of
such Lender to receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have determined that the
adoption of any applicable law, rule, or regulation regarding capital adequacy
or any change therein or in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Without limiting the foregoing but without duplication for any Associated
Costs reimbursed pursuant to Section 4.01(a) or (b), as to any Alternative
Currency Loan denominated in British Pounds, the Borrower will pay the
Associated Costs.
(d) Each Lender shall promptly notify the Borrower and the Agent of any event of
which it has knowledge, occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this Section and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section shall prior to its collection furnish to the
Borrower and the Agent a statement setting forth the additional amount or
amounts to be paid to it hereunder which shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
4.02. Limitation on Types of Loans. If on or prior to the first day of any
Interest Period for any Eurodollar Loan;
(a) the Agent determines (which determination shall be conclusive absent
manifest error) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding Eurodollar
Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as
such condition remains in effect, the Lenders shall be under no obligation
to make additional Loans of such Type, Continue Loans of such Type, or to
Convert Loans of any other Type into Loans of such Type and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected Type, either prepay such Loans or Convert
such Loans into another Type of Loan in accordance with the terms of this
Agreement.
4.03 Illegality. Notwithstanding any other provision of this Agreement, in the
event that it becomes unlawful for any Lender or its Applicable Lending Office
to make, maintain, or fund Eurodollar Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender's obligation to make or
Continue Eurodollar Loans and to Convert other Types of Loans into Eurodollar
Loans shall be suspended until such time as such Lender may again make,
maintain, and fund Eurodollar Loans (in which case the provisions of Section
4.04 shall be applicable).
4.04 Treatment of Affected Loans. If the obligation of any Lender to make a
particular Eurodollar Loan or to Continue, or to Convert Loans of any other Type
into, Loans of a particular Type shall be suspended pursuant to Section 4.01 or
4.03 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Loans on the last day(s) of the then
current Interest Period(s) for Affected Loans (or, in the case of a Conversion
required by Section 4.03 hereof, on such earlier date as such Lender may specify
to the Borrower with a copy to the Agent) and, unless and until such Lender
gives notice as provided below that the circumstances specified in Section 4.01
or 4.03 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so Converted,
all payments and prepayments of principal that would otherwise be applied
to such Lender's Affected Loans shall be applied instead to its Base Loans;
and
(b) all Loans that would otherwise be made or Continued by such Lender as
Loans of the Affected Type shall be made or Continued instead as Base
Loans, and all Loans of such Lender that would otherwise be Converted into
Loans of the Affected Type shall be Converted instead into (or shall remain
as) Base Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that
the circumstances specified in Section 4.01 or 4.03 hereof that gave rise
to the Conversion of such Lender's Affected Loans pursuant to this Section
4.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the Affected Type
made by other Lenders are outstanding, such Lender's Base Loans shall be
automatically Converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding Loans of the Affected Type, to the
extent necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Loans of the Affected Type and by such Lender are held
pro rata (as to principal amounts, Types, and Interest Periods) in
accordance with their respective Commitments.
4.05 Compensation. Upon the request of any Lender, the Borrower shall pay to
such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of an Absolute Rate Loan or a
Eurodollar Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 10.01) on a date other than
the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Article VI
to be satisfied) to borrow, Convert, Continue, or prepay an Absolute Rate
Loan or a Eurodollar Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of borrowing,
prepayment, Continuation, or Conversion under this Agreement.
4.06 Taxes. (a) Any and all payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any other Loan Document
to any Lender or the Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.06) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in Section 12.02, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this
Agreement or any other Loan Document or from the execution or delivery of,
or otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 4.06) paid by such Lender or the Agent (as the case may
be) and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Lender listed on the signature pages
hereof and on or prior to the date on which it becomes a Lender in the case
of each other Lender, and from time to time thereafter if requested in
writing by the Borrower or the Agent (but only so long as such Lender
remains lawfully able to do so), shall provide the Borrower and the Agent
with (i) Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that
such Lender is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding tax on
payments of interest or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a trade or
business in the United States, (ii) Internal Revenue Service Form W-8 or
W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any
taxing authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from tax on payments pursuant to this Agreement or
any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide the
Borrower and the Agent with the appropriate form pursuant to Section
4.06(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under Section 4.06(a) or 4.06(b) with respect to Taxes
imposed by the United States; provided, however, that should a Lender,
which is otherwise exempt from withholding tax, become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as such Lender shall reasonably request to assist
such Lender to recover such Taxes at the Lenders expense.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 4.06, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender, is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 4.06 shall survive the termination of the
Commitments and the payment in full of the Notes.
(i) To the extent that the payment of any Lenders Taxes by the Borrower in
accordance with this Section 4.06 gives rise from time to time to a Tax
Benefit (as hereinafter defined) to such Lender in any jurisdiction other
than the jurisdiction which imposed such Taxes, such Lender shall pay to
the Borrower the amount of each such Tax Benefit so recognized or received.
The amount of each Tax Benefit and, therefore, payment to the Borrower will
be determined from time to time by the relevant Lender in its sole
discretion, which determination shall be binding and conclusive on all
parties hereto. Each such payment will be due and payable by such Lender to
the Borrower within a reasonable time after the filing of the income tax
return in which such Tax Benefit is recognized or, in the case of any tax
refund, after the refund is received; provided, however, if at any time
thereafter such Lender is required to rescind such Tax Benefit or such Tax
Benefit is otherwise disallowed or nullified, the Borrower shall promptly,
after notice thereof from such Lender, repay to Lender the amount of such
Tax Benefit previously paid to the Borrower and rescinded, disallowed or
nullified. For purposes of this section, Tax Benefit shall mean the
amount by which any Lenders income tax liability for the taxable period in
question is reduced below what would have been payable had the Borrower not
been required to pay the Lenders Taxes. In case of any dispute with
respect to the amount of any payment the Borrower shall have no right to
any offset or withholding of payments with respect to future payments due
to any Lender under this Agreement or the Notes.
ARTICLE V
Guaranties
5.01 Guaranties. As security for the full and timely payment and performance of
all Obligations, the Loan Parties shall on or before the Closing Date do all
things necessary in the opinion of the Agent to cause each of its Material
Subsidiaries and its Receivables Subsidiaries to execute and deliver to the
Agent for the benefit of the Lenders the Guaranty Agreement.
ARTICLE VI
Conditions to Making Loans and Issuing
Letters of Credit
6.01 Conditions of Advance and Issuance of Letters of Credit. The obligation of
the Lenders to make the initial Advance and of NationsBank to issue the Letters
of Credit (other than Existing Letters of Credit) and to make Swing Line Loans
pursuant to this Agreement is subject to the conditions precedent that the Agent
shall have received on the Closing Date, in form and substance satisfactory to
the Agent and the Lenders, the following:
(a) executed originals of each of this Agreement, the Notes and the other
Loan Documents, together with all schedules and exhibits thereto;
(b) favorable written opinions of special counsel to the Loan Parties dated
the Closing Date, addressed to the Lender substantially in the form of
Exhibits I-1 and I-2 attached hereto;
(c) resolutions of the boards of directors or other appropriate governing
body (or of the appropriate committee thereof) of the Loan Parties
certified by its secretary or assistant secretary as of the Closing Date,
appointing (in the case of the Borrower) the initial Authorized
Representative and approving and adopting the Loan Documents to be executed
by such Person, and authorizing the execution and delivery thereof;
(d) specimen signatures of officers of each of the Loan Parties executing
the Loan Documents on behalf of such Person, certified by the secretary or
assistant secretary of the Borrower or Guarantor, as applicable;
(e) the charter documents and bylaws of each of the Loan Parties, certified
by the secretary or assistant secretary of such Guarantor;
(f) certificates issued as of a recent date by the Secretaries of State of
the jurisdiction of incorporation of each of the Loan Parties as to the due
existence and good standing of the Borrower and each Guarantor therein;
(g) appropriate certificates of qualification to do business, good standing
and, where appropriate, authority to conduct business under assumed name,
issued in respect of the Borrower as of a recent date by the Secretary of
State or comparable official of each jurisdiction in which the failure to
be qualified to do business or authorized so to conduct business could
materially adversely affect the business, operations or conditions,
financial or otherwise, of the Borrower or any Guarantor;
(h) receipt by the Agent and the Lenders of such fees and other
consideration as may be required by the terms of the commitment to lend;
(i) notice of appointment of the initial Authorized Representative;
(j) evidence of insurance required by the Loan Documents; and
(k) such other documents, instruments, certificates and opinions as the
Agent may reasonably request on or prior to the Closing Date in connection
with the consummation of the transactions contemplated hereby.
6.02 Conditions of Loans. The obligations of the Lenders to make any Loans and
of NationsBank to issue Letters of Credit and to make Swing Line Loans hereunder
on or subsequent to the Closing Date are subject to the satisfaction of the
following conditions:
(a) the Agent, or NationsBank, in the case of Swing Line Loans, shall have
received a Borrowing Notice if required by Article II hereof;
(b) the representations and warranties of the Borrower set forth in Article
VII hereof and in each of the other Loan Documents shall be true and
correct in all material respects on and as of the date of such Advance,
Swing Line Loan or issuance of such Letters of Credit, as the case may be,
with the same effect as though such representations and warranties had been
made on and as of such date, except to the extent that such representations
and warranties expressly relate to an earlier date and except that the
financial statements referred to in Section7.01(f)(i) shall be deemed to
be those financial statements most recently delivered to the Agent and the
Lenders pursuant to Section8.01 hereof;
(c) in the case of the issuance of a Letter of Credit, Borrower shall have
executed and delivered to NationsBank an Applications and Agreements for
Letter of Credit in form and content reasonably acceptable to NationsBank
together with such other instruments and documents as it shall reasonably
request;
(d) at the time of, and after giving effect to, each such Advance, Swing
Line Loan or issuance of each Letter of Credit, as the case may be, no
Default or Event of Default specified in Article X hereof, shall have
occurred and be continuing; and
(e) immediately after giving effect to:
(i) a 364 Day Loan, the aggregate principal amount of all outstanding
364 Day Loans for each Lender shall not exceed such Lenders 364 Day
Commitment;
(ii) a 5 Year Loan, the aggregate principal balance of all outstanding
5 Year Loans for each Lender shall not exceed such Lender's 5 Year
Commitment;
(iii) a Letter of Credit, the aggregate principal balance of all
outstanding Participations in Letters of Credit and Reimbursement
Obligations (or in the case of NationsBank, its remaining interest
after deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender and in the
aggregate shall not exceed, respectively, (X) such Lender's Letter of
Credit Commitment or (Y) the Total Letter of Credit Commitment;
(iv) a Swing Line Loan, the Swing Line Outstandings shall not exceed
$20,000,000; and
(v) a 5 Year Loan (including a Swing Line Loan) or a Letter of Credit,
the sum of Outstanding 5 Year Outstandings shall not exceed the Total
Revolving Credit Commitment.
Each borrowing of Loans and each issuance of a Letter of Credit shall
constitute a representation and warranty by the Borrower that the
conditions set forth in clauses (b) and (e) above have been satisfied
as of the date thereof and that as of the date of such Advance or
issuance of a Letter of Credit there has not been any material adverse
change in the business, operations or financial condition of the
Borrower and its Subsidiaries.
ARTICLE VII
Representations and Warranties
7.01 Representations and Warranties. The Borrower represents and warrants with
respect to itself and each Subsidiary (which representations and warranties
shall survive the delivery of the documents mentioned herein and the making of
Loans), that:
(a) Organization and Authority.
(i) the Borrower is a corporation duly organized and validly existing
under the laws of the jurisdiction of its incorporation;
(ii) the Borrower (x) has the requisite power and authority to own its
properties and assets and to carry on its business as now being
conducted and as contemplated in the Loan Documents, and (y) is
qualified to do business in every jurisdiction in which failure so to
qualify would have a Material Adverse Effect;
(iii) the Borrower has the power and authority to execute, deliver and
perform this Agreement and the Notes, and to borrow hereunder, and to
execute, deliver and perform each of the other Loan Documents to which
it is a party;
(iv) each Guarantor has the power and authority to execute, deliver
and perform the Guaranty Agreement and each of the other Loan
Documents to which it is a party; and
(v) when executed and delivered, each of the Loan Documents to which
Borrower and any Guarantor is a party will be the legal, valid and
binding obligation or agreement, as the case may be, of the Borrower
or Guarantor, as the case may be, enforceable against the Borrower and
such Guarantor in accordance with its terms, subject to the effect of
any applicable bankruptcy, moratorium, insolvency, reorganization or
other similar law affecting the enforceability of creditors' rights
generally, to the effect of general principles of equity which may
limit the availability of equitable remedies (whether in a proceeding
at law or in equity).
(b) Loan Documents. The execution, delivery and performance by the Loan
Parties of each of the Loan Documents to which it is a party:
(i) have been duly authorized by all requisite corporate action
(including any required shareholder approval) of each of the Loan
Parties required for the lawful execution, delivery and performance
thereof;
(ii) do not violate any provisions of (1)any applicable law, rule or
regulation, (2) any order of any court or other agency of government
binding on the Loan Parties or their respective properties, or (3)the
charter documents or by-laws of the Loan Parties;
(iii) does not and will not be in conflict with, result in a breach of
or constitute an event of default, or an event which, with notice or
lapse of time, or both, would constitute an event of default, under
any material indenture, agreement or other instrument to which the
Loan Parties are a party, or by which the properties or assets of the
Loan Parties are bound;
(iv) does not and will not result in the creation or imposition of any
Lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Loan Parties except any liens in favor of
the Agent for the benefit of the Lenders created by the Loan
Documents.
(c) Solvency. Borrower is Solvent after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents.
(d) Subsidiaries and Stockholders. Borrower has no Subsidiaries other than
those Persons listed as Subsidiaries in Schedule 7.01(d) hereto; Schedule
7.01(d) to this Agreement states as of the date hereof the authorized and
issued capitalization of each Subsidiary listed thereon, the number of
shares or other equity interests of each class of capital stock or interest
issued and outstanding of each such Subsidiary and the number and/or
percentage of outstanding shares or other equity interest (including
options, warrants and other rights to acquire any interest) of each such
class of capital stock or equity interest owned by Borrower or by any such
Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid
and nonassessable; and Borrower and each such Subsidiary owns beneficially
and of record all the shares and other interests it is listed as owning in
Schedule 7.01(d), free and clear of any Lien.
(e) Ownership Interests. Borrower owns no interest in any Person other than
the Persons listed in Schedule 7.01(d) hereto and Eligible Securities;
(f) Financial Condition. (i) The Borrower (f/k/a AssuStaff, Incorporated)
has heretofore furnished to the Agent for the benefit of the Lenders (a) an
audited consolidated balance sheet of the Borrower and its Subsidiaries as
at December 31, 1996 and December 31, 1997 and the notes thereto and
related consolidated statements of income, stockholders' equity and cash
flows for each of the three years in the period ended December 31, 1997 as
examined and certified by PricewaterhouseCoopers LLP (f/k/a Coopers &
Lybrand), (b) an unaudited consolidated balance sheet of the Borrower and
its Subsidiaries (excluding the Strategix Subsidiaries) and the related
unaudited consolidated statements of income, stockholders equity and cash
flows for each of the three years in the period ended December 31, 1997,
(c) unaudited interim financial statements of the Borrower and its
Subsidiaries consisting of a consolidated balance sheet and related
consolidated statements of income and cash flow, in each case without
notes, for and as of the six month period ending June 30, 1998 and (d)
unaudited pro forma interim financial statements of the Borrower and its
Subsidiaries consisting of a consolidated balance sheet as of June 30, 1998
giving effect to the sale of the Strategix Subsidiaries and a consolidated
statement of income for the twelve month period ending June 30, 1998,
giving effect to the sale of the Strategix Subsidiaries as at June 30,
1997. Except as set forth therein, such financial statements (including the
notes thereto) present fairly the financial condition of the Borrower and
its Subsidiaries (other than the Strategix Subsidiaries where indicated
above) as of the end of such Fiscal Years and six month period and results
of their operations and the changes in their stockholders' equity for the
Fiscal Years and interim periods then ended, all in conformity with
Generally Accepted Accounting Principles applied on a Consistent Basis,
subject however, in the case of unaudited interim statements to year end
adjustments to the extent applicable;
(ii) since December 31, 1997, there has been no material adverse
change in the condition, financial or otherwise, of the Borrower and
its Subsidiaries (other than as a result of the sale of the Strategix
Subsidiaries) considered as a whole or in the businesses, properties
and operations of the Borrower and its Subsidiaries, considered as a
whole, nor have such businesses or properties, considered as a whole,
been materially adversely affected as a result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers, flood,
embargo or act of God;
(iii) except as set forth in the financial statements referred to in
Section 7.01(f)(i) or in Schedule 7.01(f) or Schedule 7.01(j) hereto,
neither Borrower nor any Subsidiary has incurred, other than in the
ordinary course of business, any material indebtedness, obligations,
commitments or other liability contingent or otherwise which remain
outstanding or unsatisfied;
(g) Title to Properties. The Borrower has title to all its real and
personal properties, subject to no transfer restrictions or Liens of any
kind, except for (x) the transfer restrictions and Liens described in
Schedule 7.01(g)-Liens attached hereto and incorporated herein by
reference, and (y) any other Permitted Liens;
(h) Taxes. The Borrower and each Subsidiary has filed or caused to be filed
all federal, state and local tax returns which are required to be filed by
it and except for taxes and assessments being contested in good faith and
against which reserves satisfactory to the Borrower's independent certified
public accountants have been established, has paid or caused to be paid all
taxes as shown on said returns or on any assessment received by it, to the
extent that such taxes have become due;
(i) Other Agreements. Neither the Borrower nor any Subsidiary is
(i) a party to any judgment, order, decree or any agreement or
instrument or subject to restrictions materially adversely affecting
the business, properties or assets, operation or condition (financial
or otherwise) of the Borrower or any Subsidiary considered as a whole;
or
(ii) in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement
or instrument to which the Borrower or any Subsidiary is a party,
which default has, or if not remedied within any applicable grace
period could have a Material Adverse Effect;
(j) Litigation. Except as set forth in Schedule7.01(j) hereto, there is no
action, suit or proceeding at law or in equity or by or before any
governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or affecting the Borrower or any Subsidiary or any properties or
rights of the Borrower or any Subsidiary, which could reasonably be
expected to have a Material Adverse Effect;
(k) Margin Stock.The proceeds of the borrowings made pursuant to Article
II hereof will be used by the Borrower only for the purposes set forth in
Section 2.14 hereof. None of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or
for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry margin stock or for any other
purpose which might constitute any of the Loans under this Agreement a
"purpose credit" within the meaning of said Regulation U or Regulation X
(12 C.F.R. Part 224) of the Board. Neither the Borrower nor any agent
acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant
hereto to violate any regulation of the Board or to violate the Securities
Exchange Act of 1934, as amended, or the Securities Act of 1933, as
amended, or any state securities laws, in each case as in effect on the
date hereof;
(l) Investment Company. Neither the Borrower nor any Subsidiary is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (15 U.S.C.
80a-1, et seq.). The application of the proceeds of the Loans and
repayment thereof by the Borrower and the performance by the Borrower of
the transactions contemplated by this Agreement will not violate any
provision of said Act, or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder, in each case as in effect on
the date hereof;
(m) Patents, Etc. Except as set forth in Schedule 7.01(j), the Borrower and
each Subsidiary owns or has the right to use, under valid license
agreements or otherwise, all material patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights, trade secrets
and copyrights necessary to the conduct of its business as now conducted,
without known conflict with any patent, license, franchise, trademark,
trade secrets and confidential commercial or proprietary information, trade
name, copyright, rights to trade secrets or other proprietary rights of any
other Person which conflict could reasonably be expected to have a Material
Adverse Effect;
(n) No Untrue Statement. Neither this Agreement nor any other Loan Document
or certificate or document executed and delivered by or on behalf of the
Borrower or any Guarantor in accordance with or pursuant to any Loan
Document contains any misrepresentation or untrue statement of material
fact or omits to state a material fact necessary, in light of the
circumstance under which it was made, in order to make any such
representation or statement contained therein not misleading in any
material respect;
(o) No Consents, Etc. Neither the respective businesses or properties of
the Borrower or any Subsidiary, nor any relationship between the Borrower
or any Subsidiary and any other Person, nor any circumstance in connection
with the execution, delivery and performance of the Loan Documents and the
transactions contemplated hereby is such as to require a consent, approval
or authorization of, or filing, registration or qualification with, any
governmental or other authority or any other Person on the part of the
Borrower or any Subsidiary as a condition to the execution, delivery and
performance of, or consummation of the transactions contemplated by, this
Agreement or the other Loan Documents or if so, such consent, approval,
authorization, filing, registration or qualification has been obtained or
effected, as the case may be;
(p) ERISA.
(i) None of the employee benefit plans maintained at any time by the
Borrower or any Subsidiary or the trusts created thereunder has
engaged in a prohibited transaction which could subject any such
employee benefit plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA;
(ii) None of the employee benefit plans maintained at any time by the
Borrower or any Subsidiary which are employee pension benefit plans
and which are subject to Title IV of ERISA or the trusts created
thereunder has been terminated so as to result in a material liability
of the Borrower or any Subsidiary under ERISA nor has any such
employee benefit plan of the Borrower or any Subsidiary incurred any
material liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA, other than for required insurance which
have been paid or are not yet due and payable; neither the Borrower
nor any Subsidiary has withdrawn from or caused a partial withdrawal
to occur with respect to any Multi-employer Plan resulting in any
assessed and unpaid withdrawal liability; the Borrower and each
Subsidiary has made or provided for all contributions to all such
employee pension benefit plans which they maintain and which are
required as of the end of the most recent fiscal year under each such
plan; neither the Borrower nor any Subsidiary has incurred any
accumulated funding deficiency with respect to any such plan, whether
or not waived; nor has there been any reportable event, or other event
or condition, which presents a material risk of termination of any
such employee benefit plan by such Pension Benefit Guaranty
Corporation;
(iii) The present value of all vested accrued benefits under the
employee pension benefit plans which are subject to Title IV of ERISA,
maintained by the Borrower or any Subsidiary did not, as of the most
recent valuation date for each such plan, exceed the then current
value of the assets of such employee benefit plans allocable to such
benefits;
(iv) The consummation of the Loans and the issuance of the Letters of
Credit provided for in Article II and Article III will not involve any
prohibited transaction under ERISA which is not subject to a statutory
or administrative exemption;
(v) To the best of the Borrower's knowledge, each employee pension
benefit plan subject to Title IV of ERISA, maintained by the Borrower
or any Subsidiary, has been administered in accordance with its terms
in all material respects and is in compliance in all material respects
with all applicable requirements of ERISA and other applicable laws,
regulations and rules;
(vi) There has been no material withdrawal liability incurred and
unpaid with respect to any Multi-employer Plan to which the Borrower
or any Subsidiary is or was a contributor;
(vii) As used in this Agreement, the terms "employee benefit plan,"
"employee pension benefit plan," "accumulated funding deficiency,"
"reportable event," and "accrued benefits" shall have the respective
meanings assigned to them in ERISA, and the term "prohibited
transaction" shall have the meaning assigned to it in Code Section
4975 and ERISA;
(viii) Neither the Borrower nor any Subsidiary has any liability not
disclosed on any of the financial statements furnished to the Lenders
pursuant to Section 7.01(f) hereof, contingent or otherwise, under any
plan or program or the equivalent for unfunded post-retirement
benefits, including pension, medical and death benefits, which
liability would have a Material Adverse Effect.
(q) No Default. As of the date hereof, there does not exist any Default or
Event of Default hereunder;
(r) Hazardous Materials. The Borrower and each Subsidiary is in compliance
with all applicable Environmental Laws in all material respects. Neither
the Borrower nor any Subsidiary has been notified of any action, suit,
proceeding or investigation which calls into question compliance by the
Borrower or any Subsidiary with any Environmental Laws or which seeks to
suspend, revoke or terminate any license, permit or approval necessary for
the generation, handling, storage, treatment or disposal of any Hazardous
Material;
(s) RICO. Neither the Borrower nor any Subsidiary is engaged in and has not
engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or
other similar laws;
(t) Employment Matters. Except as set forth on Schedule 7.01(t), the
Borrower and each Subsidiary is in compliance in all material respects with
all applicable laws, rules and regulations pertaining to labor or
employment matters, including without limitation those pertaining to wages,
hours, occupational safety and taxation and there is neither pending or
threatened any material litigation, administrative proceeding nor, to the
knowledge of the Borrower, any investigation, in respect of such matters
which could reasonably be expected to have a Material Adverse Effect;
(u) Year 2000 Compliance. The Borrower and its Subsidiaries have (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by
information received from suppliers and vendors) that could reasonably be
expected to be materially adversely affected by the Year 2000 Problem, (ii)
developed a plan and time line for addressing the Year 2000 Problem on a
timely basis, and (iii) to date, implemented that plan substantially in
accordance with that timetable. The Borrower reasonably believes that all
computer applications (including those affected by information received
from its suppliers and vendors) that are material to its or any of its
Subsidiaries' business and operations will on a timely basis be Year 2000
Compliant, except to the extent that a failure to do so could not
reasonably be expected to have Material Adverse Effect.
ARTICLE VIII
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this Agreement
has been terminated in accordance with the terms hereof, unless the Required
Lenders shall otherwise consent in writing, the Borrower will and will cause
each Subsidiary to:
8.01 Financial Reports, Etc. (a) as soon as practical and in any event within 95
days after the end of each Fiscal Year of the Borrower, deliver or cause to be
delivered to the Agent (i) a consolidated balance sheet of the Borrower and its
Subsidiaries, and the notes thereto, and the related consolidated statements of
income, stockholders' equity and cash flows and the respective notes thereto,
for such Fiscal Year, setting forth comparative financial statements for the
preceding Fiscal Year, all prepared in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis and containing opinions of
PricewaterhouseCoopers LLP, or other such independent certified public
accountants selected by the Borrower and approved by the Agent, which are
unqualified as to the scope of the audit performed and as to the "going concern"
status of the Borrower; and (ii) a certificate of an Authorized Representative
demonstrating compliance with Sections 9.01, 9.02, 9.03, 9.04(d), 9.06(vi) and
9.08 of this Agreement, which certificate shall be in the form attached hereto
as Exhibit J;
(b) as soon as practical and in any event within 50 days after the end of
each fiscal quarter (except the last of the Fiscal Year), deliver to the
Agent (i)a consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such reporting period, the related consolidated statements
of income, stockholders' equity and cash flows for such reporting period
and for the period from the beginning of the Fiscal Year through the end of
such reporting period, accompanied by a certificate of an Authorized
Representative to the effect that such financial statements present fairly
the financial position of the Borrower and its Subsidiaries as of the end
of such reporting period and the results of their operations and the
changes in their financial position for such reporting period, in
conformity with the standards set forth in Section 7.01(f)(i) with respect
to interim financials and (ii) a certificate of an Authorized
Representative containing computations for such quarter comparable to that
required pursuant to Section 8.01(a)(ii);
(c) together with each delivery of the financial statements required by
Section 8.01(a)(i) hereof, deliver to the Agent a letter from the
Borrower's accountants specified in Section 8.01(a)(i) hereof stating that
in performing the audit necessary to render an opinion on the financial
statements delivered under Section 8.01(a)(i), they obtained no knowledge
of any Default or Event of Default by the Borrower or any Guarantor in the
fulfillment of the terms and provisions of this Agreement insofar as they
relate to financial covenants (which at the date of such statement remains
uncured); and if the accountants have obtained knowledge of such Default or
Event of Default, a statement specifying the nature and period of existence
thereof;
(d) promptly upon their becoming available to the Borrower, the Borrower
shall deliver to the Agent a copy of (i)all regular or special reports or
effective registration statements which Borrower or any Subsidiary shall
file with the Securities and Exchange Commission (or any successor thereto)
or any securities exchange, (ii) any proxy statement distributed by the
Borrower to its shareholders, bondholders or the financial community in
general, and (iii) any management letter or other report submitted to the
Borrower or any of its Subsidiaries by independent accountants in
connection with any annual, interim or special audit of the Borrower or any
of its Subsidiaries;
(e) The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial information delivered hereunder to the Lenders (or any
affiliate of any Lender) or the Agent, to any regulatory authority having
jurisdiction over the Agent or the Lenders pursuant to any request
therefor, to any other Person who shall acquire or consider the acquisition
of a participation interest in or assignment of any Loan or Letter of
Credit permitted by this Agreement and to any affiliate of the Lenders.
8.02 Maintain Properties. Maintain all material properties necessary to its
operations in good working order and condition (ordinary wear and tear excepted)
and make all needed repairs, replacements and renewals as are necessary to
conduct its business in accordance with customary business practices.
8.03 Existence, Qualification, Etc. Do or cause to be done all things necessary
to preserve and keep in full force and effect its existence and all material
rights and franchises, trade names, trademarks and permits and maintain its
license or qualification to do business as a foreign corporation and good
standing in each jurisdiction in which the failure to so maintain or qualify
would have a material adverse affect on the Borrower or its Subsidiaries
considered as a whole.
8.04 Regulations and Taxes. Comply with or contest in good faith all material
statutes and governmental regulations and pay all material taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, might become a Lien against any of its properties except
liabilities being contested in good faith and against which adequate reserves
have been established in accordance with Generally Accepted Accounting
Principles and liabilities.
8.05 Insurance. (i) Keep all of its insurable properties adequately insured at
all times with responsible insurance carriers against loss or damage by fire and
other hazards to the extent and in the manner customarily insured against by
similar businesses owning such properties similarly situated, (ii) maintain
general public liability insurance at all times with responsible insurance
carriers against liability on account of damage to persons and property having
such limits, deductibles, exclusions and co-insurance and other provisions
providing no less coverage than that specified in Schedule 8.05 attached hereto,
such insurance policies to be in form satisfactory to the Agent, and (iii)
maintain insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes).
8.06 True Books. Keep true books of record and account in which full, true and
correct entries will be made of all of its dealings and transactions, and set up
on its books such reserves as may be required by Generally Accepted Accounting
Principles with respect to doubtful accounts and all taxes, assessments,
charges, levies and claims and with respect to its business in general, and
include such reserves in interim as well as year-end financial statements.
8.07 Year 2000 Compliance. The Borrower will promptly notify the Agent and the
Lenders in the event the Borrower discovers or determines that any computer
application (including those affected by information received from its suppliers
and vendors) that is material to its or any of its Subsidiaries business and
operations will not be Year 2000 Compliant on a timely basis, except to the
extent that such failure could not reasonably be expected to have a Material
Adverse Effect.
8.08 Right of Inspection. Permit the Agent and any Lender and accountants,
attorneys or other consultants designated by the Agent and any Lender at the
Agent or any Lender's expense to visit and inspect any of the properties,
corporate books and financial reports of the Borrower and its Subsidiaries, and
to discuss their respective affairs, finances and accounts with their principal
executive officers and independent certified public accountants, all at times
reasonably convenient to the Borrower, at reasonable intervals and with
reasonable prior notice. Subject to Section 12.17, the Agent and each Lender and
such accountants, attorneys or other consultants shall treat all information
received by it pursuant to this Section as confidential to the extent such
information is not generally available to other Persons and shall, at the
request of Borrower, execute a confidentiality agreement.
8.9 Observe all Laws. Conform to and duly observe in all material respects all
laws, rules and regulations and all other valid requirements of any regulatory
authority with respect to the conduct of its business where the failure to
comply would be reasonably expected to result in a Material Adverse Effect.
8.10 Officer's Knowledge of Default. Observe all Laws. Upon the President, Chief
Financial Officer or the Controller of the Borrower obtaining actual knowledge
of any Default or Event of Default hereunder or under any other obligation of
the Borrower or any Subsidiary described in Section 10.01(e), cause such officer
or an Authorized Representative to promptly notify the Agent of the nature
thereof, the period of existence thereof, and what action the Borrower proposes
to take with respect thereto.
8.11 Suits or Other Proceedings. Upon the President, Chief Financial Officer or
the Controller of the Borrower obtaining actual knowledge of any litigation or
other proceedings being instituted against the Borrower or any Subsidiary, or
any attachment, levy, execution or other process being instituted against any
assets of the Borrower or any Subsidiary, in an aggregate amount greater than
$500,000 not otherwise covered by insurance, promptly deliver to the Agent
written notice thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process.
8.12 Notice of Discharge of Hazardous Material or Environmental Compliant.
Promptly provide to the Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims, or citations received by the
Borrower or any Subsidiary relating to any material (a) violation or alleged
violation by the Borrower or any Subsidiary of any applicable Environmental Laws
or OSHA; (b) release or threatened release by the Borrower or any Subsidiary of
any Hazardous Material, except where occurring legally; or (c) liability or
alleged liability of the Borrower or any Subsidiary for the costs of cleaning
up, removing, remediating or responding to a release of Hazardous Materials.
8.13 Environmental Compliance. If the Borrower or any Subsidiary shall receive
notice from any governmental authority that the Borrower or any Subsidiary has
violated any applicable Environmental Laws, the Borrower shall to the extent
required by law and after expiration of all valid appeals and administrative
proceedings (and in any event within the time period permitted by the applicable
governmental authority) remove or remedy, or cause the applicable Subsidiary to
remove or remedy, such violation.
8.14 Indemnification. The Borrower hereby agrees to defend, indemnify and hold
the Agent and each Lender harmless from and against any and all claims, losses,
liabilities, damages and expenses (including, without limitation, cleanup costs
and reasonable attorneys' fees) arising directly or indirectly from, out of or
by reason of the handling, storage, treatment, emission or disposal of any
Hazardous Material by or in respect of the Borrower or any Subsidiary or
property owned or leased or operated by the Borrower or any Subsidiary. The
provisions of this Section 8.14 shall survive repayment of the Obligations,
occurrence of the Revolving Credit Termination Date and expiration or
termination of this Agreement.
8.15 Further Assurances. At its cost and expense, upon request of the Agent,
duly execute and deliver or cause to be duly executed and delivered, to the
Agent such further instruments, documents, certificates, financing and
continuation statements, and do and cause to be done such further acts that may
be reasonably necessary or advisable in the reasonable opinion of the Agent to
carry out more effectively the provisions and purposes of this Agreement and the
other Loan Documents.
8.16 ERISA Requirement. Comply in all material respects with all requirements of
ERISA applicable to it and furnish to the Agent as soon as possible and in any
event (i) within thirty (30) days after the Borrower knows or has reason to know
that any reportable event with respect to any employee benefit plan subject to
Title IV of ERISA maintained by the Borrower or any Subsidiary which could
reasonably be expected to give rise to termination or the imposition of any
material tax or penalty has occurred, written statement of an Authorized
Representative describing in reasonable detail such reportable event and any
action which the Borrower or applicable Subsidiary proposes to take with respect
thereto, together with a copy of the notice of such reportable event given to
the Pension Benefit Guaranty Corporation ("PBGC") or a statement that said
notice will be filed with the annual report of the United States Department of
Labor with respect to such plan if such filing has been authorized, (ii)
promptly after receipt thereof, a copy of any notice that the Borrower or any
Subsidiary may receive from the PBGC relating to the intention of the PBGC to
terminate any employee benefit plan or plans of the Borrower or any Subsidiary
or to appoint a trustee to administer any such plan which could reasonably be
expected to result in a Material Adverse Effect, and (iii) within 10 days after
a filing with the PBGC pursuant to Section 412(n) of the Code of a notice of
failure to make a required installment or other payment with respect to a plan,
a certificate of an Authorized Representative setting forth details as to such
failure and the action that the Borrower or its affected Subsidiary, as
applicable, proposes to take with respect thereto, together with a copy of such
notice given to the PBGC.
8.17 Continued Operations. Continue at all times (i) to conduct its business and
engage principally in a line or lines of business involving the furnishing of
personnel related services, and (ii) preserve, protect and maintain free from
Liens its material patents, copyrights, licenses, trademarks, trademark rights,
trade names, trade name rights, trade secrets and know-how necessary or useful
in the conduct of its operations, except to the extent Borrower or its
Subsidiaries is otherwise permitted hereunder to dispose of assets.
8.18 Use of Proceeds. Use the proceeds of the Loans solely for the purposes
specified in Section 2.14 hereof.
ARTICLE IX
Negative Covenants
Until the Obligations have been paid and satisfied in full and this Agreement
has been terminated in accordance with the terms hereof, unless the Required
Lenders shall otherwise consent in writing, the Borrower will not, nor will it
permit any Subsidiary to:
9.01 Consolidated Leverage Ratio. Permit at the end of each fiscal quarter the
Consolidated Leverage Ratio to exceed 3.00 to 1.00.
9.02 Consolidated Fixed Charge Ratio. Permit at the end of each fiscal quarter
the Consolidated Fixed Charge Ratio to be less than 1.50 to 1.00.
9.03 Consolidated Capitalization Ratio. Permit at any time the Consolidated
Capitalization Ratio to exceed .50 to 1.00.
9.04 Indebtedness. Incur, create, assume or permit to exist any Indebtedness,
howsoever evidenced, except
(a) Indebtedness existing as of the date hereof and as set forth in
Schedule 9.04 attached hereto and incorporated herein by reference and any
refinancings, renewals or extensions (including substitutions or
replacement of properties by newly acquired properties) thereof and
containing covenants no more restrictive than those contained in this
Agreement and providing no increase in the amount of such Indebtedness;
(b) the endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business;
(c) Indebtedness arising under this Agreement;
(d) additional unsecured Indebtedness of the Borrower or Guarantors, or
both, in an aggregate outstanding amount not to exceed at any time 20% of
Consolidated Shareholders Equity;
(e) Capital Leases and purchase money Indebtedness described in Section
9.07 not to exceed at any time an aggregate outstanding principal amount of
$20,000,000; and
(f) additional unsecured Indebtedness of Subsidiaries which are not
Guarantors in an aggregate outstanding amount not to exceed $5,000,000.
For purposes of determining the amount of Indebtedness incurred in
connection with an Acquisition, any Indebtedness which under Generally
Accepted Accounting Principles must be recorded as a liability on the
consolidated balance sheet of the Borrower, whether or not constituting a
Contingent Obligation or Indebtedness for Money Borrowed, shall be deemed
Indebtedness at 100% of the amount thereof for purposes of this Section
9.04, and to the extent such Indebtedness is not so required to be recorded
as a liability, it shall not be deemed Indebtedness for purposes of this
Section 9.04. Indebtedness incurred under clause (d) above may be secured
by Letters of Credit issued pursuant to Article III hereof.
9.05 Transfer of Assets. Sell, lease, transfer or otherwise dispose of (i) any
interest in any Subsidiary, or (ii) any other asset of Borrower or any
Subsidiary except (a) assets sold in the ordinary course of business, (b) assets
which are worn out, obsolete or no longer necessary, (c) sales of accounts
receivable to Receivable Subsidiaries so long as such Receivable Subsidiary is a
Guarantor, (d) a transfer by the Borrower or a Subsidiary of assets to a
Guarantor or the Borrower or (e) other assets in any Fiscal Year having an
aggregate book value not exceeding 5% of Consolidated Total Assets; provided,
however, that the Borrower and its Subsidiaries may sell for cash other assets
in excess of 5% of Consolidated Total Assets so long as the net proceeds of such
sale are used to permanently reduce the Total Revolving Credit Commitment
pursuant to Section 2.08(a).
9.06 Investments;Acquisitions. Purchase, own, invest in or otherwise Acquire,
directly or indirectly, any stock or other securities or all or substantially
all of the assets, or make or permit to exist any interest whatsoever in any
other Person or permit to exist any loans or advances to any Person; provided,
Borrower and its Subsidiaries may maintain investments or invest in or Acquire
(i) Eligible Securities;
(ii) investments existing as of the date hereof and as set forth in
Schedule 7.01(d) attached hereto;
(iii) accounts receivable arising and trade credit granted in the ordinary
course of business and any securities received in satisfaction or partial
satisfaction thereof in connection with accounts of financially troubled
Persons to the extent reasonably necessary in order to prevent or limit
loss;
(iv) Acquisitions so long as (A) the Acquisition is not opposed by the
Person who is being acquired or whose assets are being acquired, (B) the
Cost of Acquisition of any Person does not exceed ten percent (10%) of
Consolidated Shareholders' Equity and (C) if the Person or assets so
acquired on a pro forma historical basis as at the date of the Acquisition
or for the Four-Quarter Period most recently ended preceding the date of
Acquisition owned assets or generated income, which when consolidated with
the assets and pre-tax income of the Borrower and its Subsidiaries,
constitute ten percent (10%) or more of the Consolidated Total Assets or
Consolidated Pre-Tax Income, then the Borrower shall furnish to the Agent
prior to completing such Acquisition a certificate in the form of Exhibit
J, which certificate demonstrates that on a pro forma historical basis no
Default or Event of Default exists under this Agreement;
(v) loans and advances to and investments in Subsidiaries so long as loans
and advances to and investments in all Subsidiaries which are not
Guarantors do not exceed at any time an aggregate of $50,000,000; provided,
however, that nothing contained in this Section shall limit the right of
Borrower and its Subsidiaries to make payments in the ordinary course of
business on behalf of customers of Borrower or its Subsidiaries rendering
temporary staffing services (the private label business) where payments
by recipients of such staffing services from such customers of Borrower or
its Subsidiaries are remitted directly to the Borrower or its Subsidiaries;
(vi) loans and advances to and investments in Persons who are not
Subsidiaries so long as (i) such Person derives the majority of its
revenues from providing staffing, consulting and outsourcing services, and
(ii) such loans and advances to and investments in such Persons do not
exceed at any time an aggregate of $5,000,000;
(vii) Investments as of the Closing Date in the form of ownership of the
capital stock in a Subsidiary;
(viii) guarantees of any Indebtedness (that is permitted by Section 9.04
hereof) of a Guarantor; and
(ix) loans and advances to employees of the Borrower and its Subsidiaries
(including bridge and relocation loans) made in the ordinary course of
business in an amount not to exceed $500,000 in the aggregate outstanding
at one time.
9.07 Liens. Incur, create or permit to exist any pledge, Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets of
the Borrower or any Subsidiary to secure Indebtedness owed to any other Person
except:
(i) Permitted Liens; and
(ii) purchase money Liens to secure Indebtedness and Liens securing Capital
Leases to the extent permitted under Section 9.04(e) which Indebtedness is
incurred to purchase fixed assets, provided such Indebtedness represents
not less than 75% of the purchase price of such assets as of the date of
purchase thereof and no property other than the assets so purchased secures
such Indebtedness.
9.08 Restricted Payments. Make Restricted Payments during the term of this
Agreement in an aggregate amount exceeding $200,000,000, provided, however, that
the Borrower shall not make any Restricted Payment if either prior to or after
giving effect to such Restricted Payment a Default or Event of Default shall
exist, provided that in no event shall capital stock of the Borrower owned by
Borrower and its Subsidiaries represent at any time 25% or more of Consolidated
Shareholders Equity.
9.09 Merger or Consolidation. (a) Consolidate with or merge into any other
Person, or (b) permit any other Person to merge into it; or (c) other than as
permitted in Section 9.05, liquidate, wind-up or dissolve or sell, transfer or
lease or otherwise dispose of all or a substantial part of its assets (other
than sales in the ordinary course of business); provided, however, (i) any
Subsidiary of the Borrower may merge or transfer all or substantially all of its
assets into or consolidate with any wholly-owned Subsidiary of the Borrower,
(ii) any Person may merge with the Borrower or a wholly-owned Subsidiary if the
Borrower or such Subsidiary shall be the survivor thereof and such merger shall
not cause, create or result in the occurrence on any Default or Event of Default
hereunder.
9.10 Change in Control. Cause, suffer or permit any Person or group of Persons
acting in concert other than the owners, if any, of more than 35% of outstanding
securities of the Borrower as of the Closing Date having voting rights in the
election of directors, to own or control, directly or indirectly, more than 35%
of the outstanding securities of (on a fully diluted basis and taking into
account any outstanding securities or contract rights exercisable, exchangeable
or convertible into equity interests) the Borrower having voting rights in the
election of directors.
9.11 Transactions with Affiliates. Enter into any transaction after the date
hereof, including, without limitation, the purchase, sale, leasing or exchange
of property, real or personal, or the rendering of any service, with any
Affiliate of the Borrower (other than a Subsidiary), except (a) where such
transaction is upon fair and reasonable terms that are no less favorable to the
Borrower or any Subsidiary than would be obtained in an arm's length transaction
with a nonaffiliated Person, (b) in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's (or any Subsidiary's) business
consistent with past practice of the Borrower and its Subsidiaries, (c)
investments permitted by clause (ix) of Section 9.06, and (d) the payment of
reasonable compensation (including the granting of stock options for the
purchase of Borrower's capital stock and payment of cash) to the directors of
the Borrower.
9.12 ERISA. With respect to all employee pension benefit plans maintained by the
Borrower or any Subsidiary:
(i) terminate any of such employee pension benefit plans so as to incur any
material liability to the Pension Benefit Guaranty Corporation established
pursuant to ERISA;
(ii) allow or suffer to exist any prohibited transaction involving any of
such employee pension benefit plans or any trust created thereunder which
would subject the Borrower or a Subsidiary to any material tax or penalty
or other liability on prohibited transactions imposed under Internal
Revenue Code Section 4975 or ERISA;
(iii) fail to pay to any such employee pension benefit plan any
contribution which it is obligated to pay under the terms of such plan
which could reasonably be expected to have a Material Adverse Effect;
(iv) allow or suffer to exist any accumulated funding deficiency, whether
or not waived, with respect to any such employee pension benefit plan which
could reasonably be expected to have a Material Adverse Effect;
(v) allow or suffer to exist any occurrence of a reportable event or any
other event or condition, which presents a material risk of termination by
the Pension Benefit Guaranty Corporation of any such employee pension
benefit plan that is a Single Employer Plan, which termination could result
in any liability to the Pension Benefit Guaranty Corporation which could
reasonably be expected to have a Material Adverse Effect; or
(vi) incur any withdrawal liability with respect to any Multi-employer Plan
which could reasonably be expected to have a Material Adverse Effect.
9.13 Fiscal Year. Change its Fiscal Year.
9.14 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into the Borrower permitted
pursuant to Section 9.09.
9.15 Rate Hedging Obligations. Incur any Rate Hedging Obligations or enter into
any agreements, arrangements, devices or instruments relating to Rate Hedging
Obligations, except pursuant to a Swap Agreement.
9.16 Negative Pledge Clauses. Enter into or cause, suffer or permit to exist any
agreement with any Person other than the Agent and the Lenders pursuant to this
Agreement or any other Loan Document which prohibits or limits the ability of
any of the Borrower or any Subsidiary to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues whether now owned or
hereafter acquired.
ARTICLE X
Events of Default and Acceleration
10.01 Events of Default. If any one or more of the following events (herein
called "Events of Default") shall occur for any reason whatsoever (and whether
such occurrence shall be voluntary or involuntary or come about or be effected
by operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan, Reimbursement Obligation or other Obligation, when
and as the same shall be due and payable whether pursuant to any provision
of Article II or ArticleIII hereof, at maturity, by acceleration or
otherwise; or
(b) if default shall be made in the due and punctual payment of any amount
of interest on any Loan, Reimbursement Obligation or of any fees or other
amounts payable to any of the Lenders under the Loan Documents on the date
on which the same shall be due and payable and such default shall continue
for a period of three (3) Business Days; or
(c) if default shall be made in the performance or observance of any
covenant set forth in Sections 8.06, 8.08, 8.10 or Article IX hereof
(except that in the case of Sections 9.04, 9.06(i), 9.07 and 9.11 such
default shall continue for a period of ten (10) days after the occurrence
thereof);
(d) if a default shall be made in the performance or observance of, or
shall occur under, any covenant, agreement or provision contained in this
Agreement or the Notes (other than as described in clauses (a), (b) or (c)
above) and such default shall continue for 30 or more days after the
earlier of receipt of notice of such default by the Authorized
Representative from the Agent or the Borrower becomes aware of such
default, or if a default shall be made in the performance or observance of,
or shall occur under, any covenant, agreement or provision contained in any
of the other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document delivered to the Agent
or the Lenders in connection with or pursuant to this Agreement or any of
the Obligations evidencing or creating any obligation or guaranty in favor
of the Agent or any of the Lenders, or if any Loan Document ceases to be in
full force and effect (other than by reason of any action by the Agent), or
if without the written consent of the Required Lenders, this Agreement or
any other Loan Document shall be disaffirmed or shall terminate, be
terminable or be terminated or become void or unenforceable for any reason
whatsoever (other than in accordance with its terms in the absence of
default or by reason of any action by the Agent or the Lenders); or
(e) if a default shall occur, which is not waived, (i)in the payment of
any principal, interest, premium or other amounts with respect to any
Indebtedness (other than the Loans) of the Borrower or of any Subsidiary in
an amount not less than $5,000,000 in the aggregate outstanding, or (ii)in
the performance, observance or fulfillment of any term or covenant
contained in any agreement or instrument under or pursuant to which any
such Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Borrower or any Subsidiary, and such default shall continue
for more than the period of grace, if any, therein specified, or if such
default shall permit the holder of any such Indebtedness to accelerate the
maturity thereof; or
(f) if any representation, warranty or other statement of fact contained
herein or any other Loan Document or in any writing, certificate, report or
statement at any time furnished to the Agent or any of the Lenders by or on
behalf of the Borrower or any Guarantor pursuant to or in connection with
this Agreement or the other Loan Documents, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary shall be unable to pay its debts
generally as they become due; file a petition to take advantage of any
insolvency statute; make an assignment for the benefit of its creditors;
commence a proceeding for the appointment of a receiver, trustee,
liquidator or conservator of itself or of the whole or any substantial part
of its property; file a petition or answer seeking reorganization or
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order, judgment or
decree appointing a custodian, receiver, trustee, liquidator or conservator
of the Borrower or any Subsidiary or of the whole or any substantial part
of its properties and such order, judgment or decree continues unstayed and
in effect for a period of sixty (60) days, or approve a petition filed
against the Borrower or any Subsidiary seeking reorganization or
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state, which petition is not dismissed within sixty (60) days; or if, under
the provisions of any other law for the relief or aid of debtors, a court
of competent jurisdiction shall assume custody or control of the Borrower
or any Subsidiary or of the whole or any substantial part of its
properties, which control is not relinquished within sixty (60) days; or if
there is commenced against the Borrower or any Subsidiary any proceeding or
petition seeking reorganization, arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state which proceeding or petition remains
undismissed for a period of sixty (60) days; or if the Borrower or any
Subsidiary takes any action to indicate its consent to or approval of any
such proceeding or petition; or
(i) if (i) any judgment where the amount not covered by insurance (or the
amount as to which the insurer denies liability) is in excess of $5,000,000
is rendered against the Borrower or any Subsidiary, or (ii)there is any
attachment, injunction or execution against any of the Borrower's or any
Subsidiary's properties for any amount in excess of $5,000,000; and such
judgment, attachment, injunction or execution has not been either paid,
stayed, discharged, bonded or dismissed for a period of thirty (30) days;
or
(j) if the Borrower or any Subsidiary shall, other than in the ordinary
course of business (as determined by past practices), suspend all or any
part of its operations material to the conduct of the business of the
Borrower or such Subsidiary, taken as a whole;
then, and in any such event and at any time thereafter, if such Event of
Default or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be taken: (i)the
Agent, with the consent of the Required Lenders may, and at the
direction of the Required Lenders shall, declare any obligation of the
Lenders and NationsBank to make further Loans or issue Letters of
Credit or make Swing Line Loans terminated, whereupon the obligation
of the Lenders to make further Loans or issue Letters of Credit
hereunder shall terminate immediately, and (ii)the Agent shall, at
the direction of the Required Lenders declare by notice to the
Borrower any or all of the Obligations to be immediately due and
payable, and the same, including all interest accrued thereon and all
other obligations of the Borrower to the Lenders, shall forthwith
become immediately due and payable without presentment, demand,
protest, notice or other formality of any kind, all of which are
hereby expressly waived, anything contained herein or in any
instrument evidencing the Obligations to the contrary notwithstanding;
provided, however, that notwithstanding the above, if there shall
occur an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to make Loans, of NationsBank to make Swing
Line Loans and to issue Letters of Credit hereunder shall
automatically terminate and any and all of the Obligations shall be
immediately due and payable without the necessity of any action by the
Agent or the Required Lenders or notice to the Agent or the Lenders;
(B) the Borrower shall, upon demand of the Agent or the Required
Lenders, deposit cash with the Agent in accordance with the LC Account
Agreement in an amount equal to the amount of any Letters of Credit
remaining undrawn or unpaid, as collateral security for the repayment
of any future drawings or payments under such Letters of Credit and
the Borrower shall forthwith deposit and pay such amounts and such
amounts shall be held by the Agent pursuant to the terms of the LC
Account Agreement;
(C) the Agent and each of the Lenders shall have all of the rights and
remedies available under the Loan Documents or under any applicable
law.
10.02 Agent to Act. In case any one or more Events of Default shall occur and
not have been waived, the Agent may, and at the direction of the Required
Lenders shall, proceed to protect and enforce its rights or remedies either by
suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
10.03 Cumulative Rights. No right or remedy herein conferred upon the Agent is
intended to be exclusive of any other rights or remedies contained herein or in
any other Loan Document, and every such right or remedy shall be cumulative and
shall be in addition to every other such right or remedy contained herein and
therein or now or hereafter existing at law or in equity or by statute, or
otherwise.
10.04 No Waiver. No course of dealing between the Borrower and any Lender or the
Agent or any failure or delay on the part of any Lender or the Agent in
exercising any rights or remedies under any Loan Document or otherwise available
to it shall operate as a waiver of any rights or remedies and no single or
partial exercise of any rights or remedies shall operate as a waiver or preclude
the exercise of any other rights or remedies hereunder or of the same right or
remedy on a future occasion.
10.05 Allocation of Proceeds. If an Event of Default has occurred and not been
waived, and the maturity of the Notes has been accelerated pursuant to Article X
hereof, all payments received by the Agent hereunder, in respect of any
principal of or interest on the Obligations or any other amounts payable by the
Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders pursuant to Sections 2.12, 4.03, 4.04 and
12.05;
(b) amounts due to the Agent pursuant to Section 11.08;
(c) payments of interest on Loans, Swing Line Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders (with
amounts payable in respect of Swing Line Outstandings being included in
such calculation and paid to NationsBank);
(d) payments of principal of Loans, Swing Line Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders (with
amounts payable in respect of Swing Line Outstandings being included in
such calculation and paid to NationsBank);
(e) payments of cash amounts to the Agent in respect of outstanding Letters
of Credit pursuant to Section 10.01(B);
(f) amounts due to the Lenders pursuant to Sections 3.02(f) and 8.14;
(g) payments of all other amounts due under any of the Loan Documents, if
any, to be applied for the ratable benefit of the Lenders;
(h) amounts due to any of the Lenders in respect of Obligations consisting
of liabilities under any Swap Agreement with any of the Lenders on a pro
rata basis according to the amounts owed; and
(i) any surplus remaining after application as provided for herein, to the
Borrower or otherwise as may be required by applicable law.
ARTICLE XI
The Agent
11.01 Appointment, Powers and Immunities. Each Lender hereby irrevocably
appoints and authorizes the Agent to act as its agent under this Agreement and
the other Loan Documents with such powers and discretion as are specifically
delegated to the Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in Section 11.05 and the
first sentence of Section 11.06 hereof shall include its affiliates and the
Agent's and its affiliates' officers, directors, employees, and agents): (a)
shall not have any duties or responsibilities except those expressly set forth
in this Agreement and shall not be a trustee or fiduciary for any Lender; (b)
shall not be responsible to the Lenders for any recital, statement,
representation, or warranty (whether written or oral) made in or in connection
with any Loan Document or any certificate or other document referred to or
provided for in, or received by any of them under, any Loan Document, or for the
value, validity, effectiveness, genuineness, enforceability, or sufficiency of
any Loan Document, or any other document referred to or provided for therein or
for any failure by any Loan Party or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Loan Party or the satisfaction of any condition
or to inspect the property (including the books and records) of any Loan Party
or any of its Subsidiaries or affiliates; (d) shall not be required to initiate
or conduct any litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted to be taken by it
under or in connection with any Loan Document, except for its own gross
negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
11.02 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telecopy) believed by it to be
genuine and correct and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Loan Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 12.01 hereof. As to any matters not expressly provided for by this
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to any
Loan Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
11.03 Defaults. The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or Event of
Default, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall (subject to Section 11.02 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
11.04 Rights as Lender. With respect to its Revolving Credit Commitment and the
Loans made by it, NationsBank (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. NationsBank
(and any successor acting as Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, make
investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Loan Party or any of its Subsidiaries
or affiliates as if it were not acting as Agent, and NationsBank (and any
successor acting as Agent) and its affiliates may accept fees and other
consideration from any Loan Party or any of its Subsidiaries or affiliates for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
11.05 Indemnification. The Lenders agree to indemnify the Agent (to the extent
not reimbursed under Section 12.05 hereof, but without limiting the obligations
of the Borrower under such Section) ratably in accordance with their respective
Commitments, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including attorneys'
fees), or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Agent (including by any Lender) in any
way relating to or arising out of any Loan Document or the transactions
contemplated thereby or any action taken or omitted by the Agent under any Loan
Document; provided that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Person to be indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse the Agent promptly upon demand for its ratable share of any
costs of expenses payable by the Borrower under Section 12.05, to the extent
that the Agent is not promptly reimbursed for such costs and expenses by the
Borrower. The agreements contained in this Section shall survive payment in full
of the Loans and all other amounts payable under this Agreement.
11.06 Non-Reliance on Agent and Other Lenders. Each Lender agrees that it has,
independently and without reliance on the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis of the Loan Parties and their Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any Loan
Party or any of its Subsidiaries or affiliates that may come into the possession
of the Agent or any of its affiliates.
11.07 Resignation of Agent. The Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the Required
Lenders may appoint, with the consent of the Borrower, so long as there shall
not have occurred and be continuing a Default or Event of Default, which consent
shall not be unreasonably withheld, a successor Agent for the Lenders. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article XI shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
11.08 Fees. The Borrower agrees to pay to the Agent, for its individual account,
an annual Agent's fee as from time to time agreed to by the Borrower and Agent
in writing.
11.09 Other Agents. None of the Lenders identified on the cover of this
Agreement as a Co-Syndication Agent or the Documentation Agent shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement or any other Loan Document other than those applicable to all Lenders
as such. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or any
other Loan Document or in taking or refraining from taking any action hereunder
or thereunder or pursuant hereto or thereto.
ARTICLE XII
Miscellaneous
12.01 Assignments and Participation. (a) Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Loans, its
Notes, and its Revolving Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under this
Agreement, any such partial assignment shall be in an amount at least
equal to $10,000,000 or an integral multiple of $1,000,000 in excess
thereof;
(iii) each such assignment by a Lender shall be of a constant, and not
varying, percentage of all of its rights and obligations under this
Agreement and the Notes; and
(iv) the parties to such assignment shall execute and deliver to the
Agent for its acceptance an Assignment and Acceptance in the form of
Exhibit B hereto, together with any Notes subject to such assignment
and a processing fee of $3,500 to be paid by the new Lender.
Upon execution, delivery, and acceptance of such Assignment and Acceptance,
the assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such assignment,
relinquish its rights and be released from its obligations under this
Agreement. Upon the consummation of any assignment pursuant to this
Section, the assignor, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and
the assignee. If the assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the
Borrower and the Agent certification as to exemption from withholding of
Taxes in accordance with Section4.06.
(b) The Agent shall maintain at its address referred to in Section12.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and
a register for the recordation of the names and addresses of the Lenders
and the Revolving Credit Commitment of, and principal amount of the
Revolving Credit Loans owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall
be available for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Notes subject to such assignment and
payment of the processing fee, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit B
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in all or a
portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment
and its Revolving Credit Loans); provided, however, that (i) such Lenders
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, and (iii) the Borrower shall continue to
deal solely and directly with such Lender in connection with such Lenders
rights and obligations under this Agreement, and such Lender shall retain
the sole right to enforce the obligations of the Borrower relating to its
Loans and its Note and to approve any amendment, modification, or waiver of
any provision of this Agreement (other than amendments, modifications, or
waivers decreasing the amount of principal of or the rate at which interest
is payable on such Loans, Note or Letter of Credit, or any fee payable
hereunder, extending any scheduled principal payment date or date fixed for
the payment of interest on such Loans, Note or Letter of Credit, or
extending the expiry date of any Letter of Credit beyond the Maturity Date,
or any date for reimbursement of any Reimbursement Obligations or extending
its Commitment).
(e) Notwithstanding any other provision set forth in this Agreement, any
Lender may, at no cost to the Borrower, at any time assign and pledge all
or any portion of its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the Borrower or any
of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 12.17 hereof
(g) The Borrower may not assign any rights, powers, duties or obligations
under this Agreement or the other Loan Documents without the prior written
consent of all the Lenders.
12.02 Notices. Any notice shall be conclusively deemed to have been received by
any party hereto and be effective on the day on which delivered to such party
(against receipt therefor) at the address set forth below or such other address
as such party shall specify to the other parties in writing (or, in the case of
telephonic notice or notice by telecopy, telegram or telex (where the receipt of
such message is verified by return) expressly provided for hereunder, when
received during normal business hours at such telephone, telecopy or telex
number as may from time to time be specified in written or oral notice to the
other parties hereto or otherwise received), or by overnight courier or express
mail on the day following the date sent, addressed to such party at said
address:
(a) if to the Borrower:
Modis Professional Services, Inc.
One Independent Drive
Jacksonville, Florida 32202
Attention: Chief Financial Officer
Telephone: (904) 360-2000
Telefacsimile: (904) 360-2505
(b) if to the Lender:
NationsBank, National Association
400 N. Ashley Drive
Tampa, Florida 33602
Attention: Global Finance
Telephone: (813) 224-5194
Telefacsimile: (813) 224-5948
with a copy to:
NationsBank, National Association
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 388-2374
Telefacsimile: (704) 386-9923
(c) if to NationsBank in its capacity as Agent and issuer of the Letters of
Credit:
NationsBank, National Association
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 388-2374
Telefacsimile: (704) 386-9923
12.03 Right of Setoff; Adjustments. (a) Upon the occurrence and during the
continuance of any Event of Default, each Lender (and each of its affiliates) is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender (or any of its affiliates) to or for the credit or
the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement and the Notes held by
such Lender, irrespective of whether such Lender shall have made any demand
under this Agreement or such Notes and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans owing to it, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loans
owing to it, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefitted Lender, such purchase shall be rescinded,
and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this Section12.03
may, to the fullest extent permitted by law, exercise all of its rights of
payment (including the right of set-off) with respect to such participation
as fully as if such Person were the direct creditor of the Borrower in the
amount of such participation.
12.04 Survival. All covenants, agreements, representations and warranties made
herein shall survive the making by the Lenders of the Loans and the expiration
of the Letters of Credit and the execution and delivery to the Lenders of this
Agreement and the Notes and shall continue in full force and effect so long as
any of Obligations remain outstanding or any Lender has any commitment hereunder
or the Borrower has continuing obligations hereunder unless otherwise provided
herein. Whenever in this Agreement, any of the parties hereto is referred to,
such reference shall be deemed to include the successors and permitted assigns
of such party and all covenants, provisions and agreements by or on behalf of
the Borrower which are contained in this Agreement, the Notes and the other Loan
Documents shall inure to the benefit of the successors and permitted assigns of
the Lenders or any of them.
12.05 Expenses. The Borrower agrees (a)to pay or reimburse the Agent for all
its reasonable and customary out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of, this Agreement or
any of the other Loan Documents (including travel expenses relating to closing),
and the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable and customary fees and
disbursements of counsel to the Agent as well as all such expenses and costs
arising in connection with any amendment, supplement or modification to this
Agreement or any other Loan Documents, (b)to pay or reimburse the Agent and the
Lenders for all their reasonable costs and expenses incurred in connection with
the enforcement (only from and after the occurrence and continuation of a
Default or Event of Default) or preservation of any rights under this Agreement
and the other Loan Documents, including without limitation, the reasonable fees
and disbursements of its counsel, (c)to pay, indemnify and hold the Agent and
the Lenders harmless from any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any failure to pay or delay in
paying, documentary, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of this Agreement or any other Loan Documents, or consummation of any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, this Agreement or any other Loan Documents, and (d)to pay,
indemnify, and hold the Agent and the Lenders harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any indemnity
agreement or undertaking made by the Agent or any Lender to facilitate the
processing of checks, payroll or otherwise, of Borrower, or in any respect
relating to the transactions contemplated hereby or thereby, (all the foregoing,
collectively, the "indemnified liabilities"); provided, however, that the
Borrower shall have no obligation hereunder with respect to indemnified
liabilities arising from (i) the willful misconduct or gross negligence of or
the willful breach of the Loan Documents by the party seeking indemnification,
(ii) legal proceedings commenced against the Agent or any Lender by any security
holder or creditor thereof arising out of and based upon rights afforded any
such security holder or creditor solely in its capacity as such, (iii) any taxes
imposed upon the Agent or any Lender other than the documentary, stamp, excise
and similar taxes described in clause (c) above or any tax which would be
payable to Lender by Borrower pursuant to Article IV hereof, it being understood
that the Lenders shall have the affirmative obligation, so long as no Default or
Event of Default exists hereunder, to take all reasonable steps to ensure such
documentary, stamp or similar taxes are not required to be paid, (iv)taxes
imposed and costs and expenses incurred as a result of a transfer or assignment
of any Note, participation or assignment of a portion of a Lender's rights or
(v)any transfer taxes, costs, fees or expenses incurred in connection with any
transfer of the Notes. The agreements in this subsection shall survive repayment
of the Notes and all other Obligations hereunder and termination of this
Agreement.
12.06 Amendments and Waivers. Any provision of this Agreement or any other Loan
Document may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Lenders (and, if
Article XI or the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such amendment or waiver shall, unless signed by all
the Lenders (i) increase the Revolving Credit Commitments of the Lenders, (ii)
reduce the principal of or rate of interest on any Loan or any fees or other
amounts payable hereunder, (iii) postpone any date fixed for the payment of any
scheduled installment of principal of or interest on any Loan or any fees or
other amounts payable hereunder or for termination of any Revolving Credit
Commitment, (iv) change the percentage of the Revolving Credit Commitments or of
the unpaid principal amount of the Notes, or the number of Lenders, which shall
be required for the Lenders or any of them to take any action under this Section
or any other provision of this Agreement or (v) release all or substantially all
of the Guarantors; and provided, further, that no such amendment or waiver which
affects the rights, privileges or obligations of NationsBank as provider of the
Swing Line or issuer of Letters of Credit, shall be effective unless signed in
writing by NationsBank.
12.07 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
12.08 Waivers by Borrower. In any litigation in any court with respect to, in
connection with, or arising out of this Agreement, the Loans, any of the Notes,
any of the other Loan Documents, the Obligations, or any instrument or document
delivered pursuant to this Agreement or the other Loan Documents, or the
validity, protection, interpretation, collection or enforcement thereof, or any
other claim or dispute howsoever arising between the Borrower and the Agent and
any Lender, the Borrower and the Agent and the Lenders hereby waive, to the
extent permitted by applicable law, trial by jury in connection with any such
litigation.
12.09 Termination. The termination of this Agreement shall not affect any rights
of the Borrower, the Agent or the Lenders or any obligation of the Borrower, the
Agent or the Lenders, arising prior to the effective date of such termination,
and the provisions hereof shall continue to be fully operative until all
transactions entered into or rights created or obligations incurred prior to
such termination have been fully disposed of, concluded or liquidated and the
Obligations arising prior to or after such termination have been irrevocably
paid in full. The rights granted to the Agent for the benefit of the Lenders
hereunder and under the other Loan Documents shall continue in full force and
effect, notwithstanding the termination of this Agreement, until all of the
Obligations have been paid in full after the termination hereof (other than
Obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable) or the Borrower has furnished the Agent and
the Lenders with an indemnification satisfactory to the Lender with respect
thereto. All representations, warranties, covenants, waivers and agreements
contained herein shall survive termination hereof until payment in full of the
Obligations unless otherwise provided herein. Notwithstanding the foregoing, if
after receipt of any payment of all or any part of the Obligations, any Lender
is for any reason compelled to surrender such payment to any Person because such
payment is determined to be void or voidable as a preference, impermissible
setoff, a diversion of trust funds or for any other reason, this Agreement shall
continue in full force and the Borrower shall be liable to, and shall indemnify
and hold such Lender harmless for, the amount of such payment surrendered until
the Lenders shall have been finally and irrevocably paid in full. The provisions
of the foregoing sentence shall be and remain effective notwithstanding any
contrary action which may have been taken by the Lender in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to the
Lender's rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
12.10 Replacement Lender. The Borrower may, in its sole discretion, on 10
Business Days' prior written notice to the Agent and the affected Lender, cause
such Lender to (and such Lender shall) assign, pursuant to Section 12.01, all of
its rights and obligations under this Agreement (other than with respect to
outstanding Competitive Bid Loans) to an Eligible Assignee designated by the
Borrower which is willing to become a Lender for a purchase price equal to the
outstanding principal amount of the Loans payable to such Lender plus any
accrued but unpaid interest on such Loans, any accrued but unpaid fees with
respect to such Lender's Revolving Credit Commitment and any other amount
payable to such Lender under this Agreement (other than with respect to
outstanding Competitive Bid Loans); provided, that any expenses or other amounts
which would be owing to such Lender pursuant to any indemnification provision
hereof (including, if applicable Section 4.04) shall be payable by the Borrower
as if the Borrower had prepaid the Loans of such Lender rather than such Lender
having assigned its interest hereunder. The Borrower or the Assignee shall pay
the applicable processing fee under Section 12.01(a).
12.11 Governing Law. All documents executed pursuant to the transactions
contemplated herein, including, without limitation, this Agreement and each of
the Loan Documents shall be deemed to be contracts made under, and for all
purposes shall be construed in accordance with, the internal laws and judicial
decisions of the State of Florida. The Borrower and the Agent hereby submit to
the jurisdiction and venue of the state and federal courts of Florida for the
purposes of resolving disputes hereunder or for the purposes of collection.
12.12 Headings and References. The headings of the Articles and Sections of this
Agreement are inserted for convenience of reference only and are not intended to
be a part of, or to affect the meaning or interpretation of this Agreement.
Words such as "hereof", "hereunder", "herein" and words of similar import shall
refer to this Agreement in its entirety and not to any particular Section or
provisions hereof, unless so expressly specified. As used herein, the singular
shall include the plural, and the masculine shall include the feminine or a
neutral gender, and vice versa, whenever the context requires.
12.13 Severability. If any provision of this Agreement or the other Loan
Documents shall be determined to be illegal or invalid as to one or more of the
parties hereto, then such provision shall remain in effect with respect to all
parties, if any, as to whom such provision is neither illegal nor invalid, and
in any event all other provisions hereof shall remain effective and binding on
the parties hereto.
12.14 Entire Agreement. This Agreement, together with the other Loan Documents,
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
12.15 Agreement Controls. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any term of this Agreement,
the terms and provisions of this Agreement shall control.
12.16 Usury Savings Clause. Notwithstanding any other provision herein, the
aggregate interest rate charged under any of the Notes, including all charges or
fees in connection therewith deemed in the nature of interest under applicable
law shall not exceed the Highest Lawful Rate (as such term is defined below). If
the rate of interest (determined without regard to the preceding sentence) under
this Agreement at any time exceeds the Highest Lawful Rate (as defined below),
the outstanding amount of the Loans made hereunder shall bear interest at the
Highest Lawful Rate until the total amount of interest due hereunder equals the
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder (taking into account the increase provided for above) is less than
the total amount of interest which would have been due hereunder if the stated
rates of interest set forth in this Agreement had at all times been in effect,
then to the extent permitted by law, the Borrower shall pay to the Agent an
amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention of
the Lenders and the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be canceled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made hereunder
or be refunded to the Borrower. As used in this paragraph, the term "Highest
Lawful Rate" means the maximum lawful interest rate, if any, that at any time or
from time to time may be contracted for, charged, or received under the laws
applicable to such Lender which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than applicable laws now
allow.
12.17 Confidentiality. The Agent and each Lender (each, a "Lending Party")
agrees to keep confidential any information furnished or made available to it by
the Borrower pursuant to this Agreement that is marked confidential; provided
that nothing herein shall prevent any Lending Party from disclosing such
information (a) to any other Lending Party or any affiliate of any Lending
Party, or any officer, director, employee, agent, or advisor of any Lending
Party or affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending Party other than as a result of a disclosure by
any Lending Party prohibited by this Agreement or through disclosure by any
other Person whom the Agent or such Lender has reason to believe disclosed such
information in violation of or contrary to the confidentiality requirements or
policies of the Borrower or a Subsidiary, (g) in connection with any litigation
to which such Lending Party or any of its affiliates may be a party, (h) to the
extent necessary in connection with the exercise of any remedy under this
Agreement or any other Loan Document, and (i) subject to provisions
substantially similar to those contained in this Section, to any actual or
proposed participant or assignee.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made,
executed and delivered by their duly authorized officers as of the day and year
first above written.
MODIS PROFESSIONAL SERVICES, INC.
WITNESS:
/s/ Charles N. Anderson By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Terry L. Witcher Title: Senior Vice President & Treasurer
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent
By:/s/ Miles C. Dearden III
Name: Miles C. Dearden III
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION,
as a Lender
By:/s/ Miles C. Dearden III
Name: Miles C. Dearden III
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ Michael J. Carlin
Name: Michael J. Carlin
Title: Senior Vice President
Lending Office:
225 Water Street, 4th Floor
Mail Code FL0060
Jacksonville, Florida 32202
Wire Transfer Instructions:
First Union National Bank
Jacksonville, Florida
ABA No.: 063000021
Account No.: 145916-2008
Account Name: Commercial Loan Services
Attention: Cindy Petry
(904) 489-1823
Reference: Modis Professional Services, Inc.
FLEET NATIONAL BANK
By: /s/ Deborah Lawrence
Name: Deborah Lawrence
Title: Senior Vice President
Lending Office:
One Federal Street
MAOF DO4J
Boston, Massachusetts 02110
Wire Transfer Instructions:
Fleet National Bank
Boston, Massachusetts
ABA No.: 011000138
Account No.: 151035103156
Account Name: Commercial Loan Services
Reference: AccuStaff/Modis
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Gaye C. Plunkett
Name: Gaye C. Plunkett
Title: Vice President
Lending Office:
One First National Plaza
Suite 0324, 10th Floor
Chicago, Illinois 60670
Wire Transfer Instructions:
The First National Bank of Chicago
Chicago, Illinois
ABA No.: 071000013
Account No.: 4811528600000
Account Name: Loan Processing Department
Attention: Nan Wilson
Reference: Modis Professional Services, Inc.
WACHOVIA BANK, N.A.
By: /s/ Tammy F. Hughes
Name: Tammy F. Hughes
Title: Vice President
Lending Office:
191 Peachtree Street, N.E., 29th Floor
Atlanta, Georgia 30303
Wire Transfer Instructions:
Wachovia Bank, N.A.
ABA No.:
Account No.:
Attention:
Reference: Modis Professional Services, Inc.
KBC BANK N.V.
By: /s/ Robert Snauffer /s/ Marcel Claes
Name: Robert Snauffer Marcel Claes
Title:First Vice President Deputy General Manager
Lending Office:
125 West 55th Street
New York, New York 10019
Wire Transfer Instructions:
Bank of New York
ABA No.: 021-000-018
Name of Account:KBC Bank N.V.,New York Branch
Account No.: 802 301 5618
Reference: Modis Professional Services, Inc.
MARINE MIDLAND BANK
By: /s/ Jeremy P. Bollington
Name: Jeremy P. Bollington
Title: Vice President
Lending Office:
140 Broadway, 4th Floor
New York, New York 10005-1196
Wire Transfer Instructions:
Marine Midland Bank
ABA No.: 021-001-088
Account No.: 001-940-503
Account Name: Commercial Loans
Reference: Modis Professional Services, Inc.
Attention: Asset Syndications
HIBERNIA NATIONAL BANK
By: /s/ Christopher Pitre
Name: Christopher Pitre
Title: Vice President
Lending Office:
313 Carondelet Street
New Orleans, Louisiana 70130
Wire Transfer Instructions:
Hibernia National Bank
New Orleans, Louisiana
ABA No.: 065000090
Account No.: 0520-36615
Account Name: National Accounts
Reference: Modis Professional Services, Inc.
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By: /s/ Warren R. Ross
Name: Warren R. Ross
Title: Assistant Vice President
Lending Office:
333 Clay Street
Suite 3400
Houston, Texas 77002
Wire Transfer Instructions:
BNP New York
New York, New York
ABA No.: 026007689
Account No.: 141011-001-69
Attention: Donna Rose
Reference: Modis Professional Services, Inc.
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ Kazuo Iida
Name: Kazuo Iida
Title: General Manager
Lending Office:
191 Peachtree Street, N.E.
Suite 3600
Atlanta, Georgia 30303-1757
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited,
New York Branch
ABA No.: 026008345
For further credit to: IBJ Atlanta Agency
Account No.: 2601-21014
Reference: Modis Professional Services, Inc.
COMERICA BANK
By: /s/ Martin G. Ellis
Name: Martin G. Ellis
Title: Vice President
Lending Office:
500 Woodward Avenue, 9th Floor
MC 3280
Detroit, Michigan 48275-3280
Wire Transfer Instructions:
Comerica Bank
ABA No.: 072000096
Account Name: International L/Cs
Account No.: 02-26045-94100
Reference: Modis Professional Services, Inc.
PARIBAS
By: /s/ Duane Helkowski
Name: Duane Helkowski
Title: Vice President
By: /s/ Sean Reddington
Name: Sean Reddington
Title: Vice President
Lending Office:
787 Seventh Avenue
New York, New York 10019
Wire Transfer Instructions:
Bankers Trust NY
ABA No.: 021-000-033
Account No.: Paribas NY
Attention: Loan Servicing
Reference: Modis Professional Services, Inc.
BANK HAPOALIM B.M.
By:/s/ Peter Dovas /s/ Carl Kopfinger
Name: Peter Dovas Carl Kopfinger
Title: Vice President Vice President
Lending Office:
1515 Market Street
Suite 200
Philadelphia, Pennsylvania 19102
Wire Transfer Instructions:
Federal Reserve Bank of Philadelphia
Account: Bank Hapoalim B.M.
ABA No.: 036001581
Attention: Linda OConnor
Reference: Modis Professional Services, Inc.