CONFORMED COPY
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT
AND
REIMBURSEMENT AGREEMENT
by and among
ACCUSTAFF INCORPORATED, as Borrower,
and
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH),
as Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
May 23, 1997
TABLE OF CONTENTS
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Page
ARTICLE I Amendment and Restatement; Definitions and Terms
1.01 Amendment and Restatement................................. 2
1.02 Definitions............................................... 2
1.02 Accounting Terms.......................................... 23
1.03 Cross References.......................................... 23
1.04 Accounting and Financial Determinations................... 23
1.05 General Provisions Relating to Definitions................ 24
1.06 Time...................................................... 24
ARTICLE II The Loans
2.01 Revolving Credit Facility................................. 25
2.02 Competitive Bid Loans..................................... 27
2.03 Payment of Interest....................................... 31
2.04 Payment of Principal...................................... 31
2.05 Time of Payments; Non-Conforming Payments................. 31
2.06 Borrower's Account........................................ 32
2.07 Notes..................................................... 32
2.08 Reductions................................................ 32
2.09 Conversions and Elections of Subsequent Interest Periods.. 33
2.10 Increase and Decrease in Amounts.......................... 34
2.11 Pro Rata Payments......................................... 34
2.12 Unused Fee................................................ 34
2.13 Deficiency Advances....................................... 34
2.14 Use of Proceeds........................................... 35
2.15 Swing Line................................................ 35
ARTICLE III Letters of Credit
3.01 Letters of Credit......................................... 37
3.02 Reimbursement............................................. 37
3.03 Letter of Credit Fee...................................... 40
3.04 Administrative Fees and Reserves.......................... 40
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ARTICLE IV Change in Circumstances
4.01 Increased Cost and Reduced Return......................... 41
4.02. Limitation on Types of Loans.............................. 42
4.03 Illegality................................................ 43
4.04 Treatment of Affected Loans............................... 43
4.05 Compensation.............................................. 43
4.06 Taxes..................................................... 44
ARTICLE V Security
5.01 Security.................................................. 47
5.02 Further Assurances........................................ 47
ARTICLE VI Conditions to Making Loans and Issuing
6.01 Conditions of Initial Advance and Issuance of Letters of
Credit.................................................... 48
6.02 Conditions of Loans....................................... 49
ARTICLE VII Representations and Warranties
7.01 Representations and Warranties............................ 51
ARTICLE VIII Affirmative Covenants
8.01 Financial Reports, Etc.................................... 58
8.02 Maintain Properties....................................... 59
8.03 Existence, Qualification, Etc............................. 59
8.04 Regulations and Taxes..................................... 59
8.05 Insurance................................................. 59
8.06 True Books................................................ 59
8.07 Pay Indebtedness to Lenders and Perform Other Covenants... 60
8.08 Right of Inspection....................................... 60
8.09 Observe all Laws.......................................... 60
8.10 Officer's Knowledge of Default............................ 60
8.11 Suits or Other Proceedings................................ 60
8.12 Notice of Discharge of Hazardous Material or Environmental
Complaint................................................. 60
8.13 Environmental Compliance.................................. 61
8.14 Indemnification........................................... 61
8.15 Further Assurances........................................ 61
8.16 ERISA Requirement......................................... 61
8.17 Continued Operations...................................... 62
8.18 Use of Proceeds........................................... 62
8.19 Material Subsidiaries..................................... 62
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ARTICLE IX Negative Covenants
9.01 Consolidated Leverage Ratio............................... 64
9.02 Consolidated Fixed Charge Ratio........................... 64
9.03 Consolidated Capitalization Ratio......................... 64
9.04 Indebtedness.............................................. 64
9.05 Transfer of Assets........................................ 65
9.06 Investments; Acquisitions................................. 65
9.07 Liens..................................................... 66
9.08 Dividends or Distributions................................ 66
9.09 Merger or Consolidation................................... 66
9.10 Change in Control......................................... 67
9.11 Transactions with Affiliates.............................. 67
9.12 ERISA..................................................... 67
9.13 Fiscal Year............................................... 68
9.14 Dissolution, etc.......................................... 68
9.15 Rate Hedging Obligations.................................. 68
ARTICLE X Events of Default and Acceleration
10.01 Events of Default......................................... 69
10.02 Agent to Act.............................................. 72
10.03 Cumulative Rights......................................... 72
10.04 No Waiver................................................. 72
10.05 Allocation of Proceeds.................................... 72
ARTICLE XI The Agent
11.01 Appointment, Powers and Immunities........................ 74
11.02 Reliance by Agent......................................... 74
11.03 Defaults.................................................. 75
11.04 Rights as Lender.......................................... 75
11.05 Indemnification........................................... 75
11.06 Non-Reliance on Agent and Other Lenders................... 75
11.07 Resignation of Agent...................................... 76
11.08 Fees...................................................... 76
ARTICLE XII Miscellaneous
12.01 Assignments and Participations............................. 77
12.02 Notices.................................................... 78
12.03 Right of Setoff; Adjustments............................... 79
12.04 Survival................................................... 80
12.05 Expenses................................................... 80
12.06 Amendments and Waivers..................................... 81
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12.07 Counterparts............................................... 82
12.08 Waivers by Borrower........................................ 82
12.09 Termination................................................ 82
12.10 Replacement Lender......................................... 83
12.11 Governing Law.............................................. 83
12.12 Headings and References.................................... 83
12.13 Severability............................................... 83
12.14 Entire Agreement........................................... 83
12.15 Agreement Controls......................................... 84
12.16 Usury Savings Clause....................................... 84
12.17 Confidentiality............................................ 84
EXHIBIT A Applicable Commitment Percentages................... 108
EXHIBIT B Form of Assignment and Acceptance................... 110
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative...................................... 115
EXHIBIT D-1 Form of Borrowing Notice--Loans..................... 116
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans.......... 118
EXHIBIT E Form of Interest Rate Selection Notice.............. 120
EXHIBIT F-1 Form of Revolving Note.............................. 121
EXHIBIT F-2 Form of Competitive Bid Note........................ 126
EXHIBIT F-3 Form of Swing Line Note............................. 132
EXHIBIT G Form of Competitive Bid Quote....................... 135
EXHIBIT H Form of Competitive Bid Quote Request............... 137
EXHIBIT I-1 Form of Opinion of Borrower's Counsel............... 138
EXHIBIT I-2 Form of Opinion of Guarantors' Counsel.............. 142
EXHIBIT J Compliance Certificate.............................. 144
EXHIBIT K Form of Subsidiary and Suretyship Guaranty.......... 148
Schedule 1.02 Existing Letters of Credit...................... 159
Schedule 7.01(d) Subsidiaries and Investments.................... 160
Schedule 7.01(f) Contingent Liabilities.......................... 161
Schedule 7.01(g) Liens........................................... 162
Schedule 7.01(j) Litigation...................................... 163
Schedule 7.01(t) Employment Matters.............................. 164
Schedule 8.05 Existing Insurance.............................. 165
Schedule 9.04 Indebtedness.................................... 166
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FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS FOURTH AMENDED AND RESTATED REVOLVING CREDIT AND REIMBURSEMENT
AGREEMENT, dated as of the 23rd day of May, 1997 (the "Agreement"), is made by
and among:
ACCUSTAFF INCORPORATED, a Florida corporation having its principal
place of business in Jacksonville, Florida (the "Borrower"); and
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH) (successor by merger of
NationsBank of Florida, National Association), a national banking association
organized and existing under the laws of the United States of America and having
a principal place of business in Tampa, Florida ("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 (SOUTH), 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, the Agent and the lenders party thereto (the
Existing Lenders) have entered into a Third Amended and Restated Revolving
Credit and Reimbursement Agreement dated as of May 2, 1996 (the Existing
Agreement) pursuant to which the Existing Lenders agreed to make revolving
loans of up to $150,000,000 together with a letter of credit sublimit of
$20,000,000 and a swingline sublimit of $10,000,000; and
WHEREAS, certain of the Obligations of the Borrower under the Existing
Agreement are evidenced by promissory notes issued pursuant to the Existing
Agreement (collectively, the Prior Notes ); and
WHEREAS, the Borrower has requested that the revolving credit facility
be increased to $500,000,000, with the letter of credit sublimit of $40,000,000
and the swing line sublimit of $20,000,000, the proceeds of such revolving
credit facility 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; and
WHEREAS, the Borrower, the Lenders and the Agent have agreed to
further amend and restate the Existing Agreement in the manner set forth herein;
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NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree
as follows:
ARTICLE I
Amendment and Restatement; Definitions and Terms
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1.01 Amendment and Restatement. The Borrower, the Agent and the
-------------------------
Lenders hereby agree that upon the effectiveness of this Agreement, the terms
and provisions of the Existing Agreement shall be and hereby are amended and
restated in their entirety by the terms and conditions of this Agreement and the
terms and provisions of the Existing Agreement, except as otherwise provided
herein, shall be superseded by this Agreement.
Notwithstanding the amendment and restatement of the Existing
Agreement by this Agreement, the Borrower shall continue to be liable to the
Agent and the Existing Lenders with respect to agreements on the part of the
Borrower under the Existing Agreement to indemnify and hold harmless the Agent
and the Existing Lenders from and against all claims, demands, liabilities,
damages, losses, costs, charges and expenses to which the Agent and the Existing
Lenders may be subject arising in connection with the Existing Agreement. This
Agreement is given as a substitution of, and not as a payment of, the
obligations of Borrower under the Existing Agreement and is not intended to
constitute a novation of the Existing Agreement. Except as otherwise selected
by the Borrower by delivery of a Borrowing Notice or Interest Rate Selection
Notice prior to the Closing Date in accordance with the terms hereof, upon the
effectiveness of this Agreement all amounts outstanding and owing by Borrower
under the Existing Agreement as of the Closing Date, as determined by the
Lenders, shall constitute Advances hereunder accruing interest with respect to
the Base Rate Loans under the Existing Agreement, at the Base Rate hereunder.
The parties hereto agree that the Interest Periods for all Eurodollar Loans
outstanding under the Existing Agreement on the Closing Date shall be
terminated, the Borrower shall make any payments required under Section 4.05 to
the Lenders, the Borrower shall furnish to the Agent Interest Rate Selection
Notices for existing Loans and Borrowing Notices for additional Loans as may be
required in connection with the allocation of Loans among Lenders in accordance
with their Applicable Commitment Percentages. Except as otherwise provided for
by the Borrower by delivery to NationsBank of an Application and Agreement for
Letters of Credit prior to the Restatement Date in accordance with the terms
hereof, upon the effectiveness of this Agreement, all Letters of Credit issued
for the account of the Borrower under the Existing Agreement as of the Closing
Date shall constitute Letters of Credit hereunder.
1.02 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;
"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,
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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) the Revolving Credit Facility,
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;
"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
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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 Swing Line Loan or Eurodollar Loan,
and with respect to the Unused Fee, 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:
Ratio of Net Funded Applicable Margin
-----------------
Indebtedness to Eurodollar
Adjusted and Swing Unused
Consolidated EBITDA Line Loans Fee
------------------------- ----------------- -------
(a) Equal to or Less than
1.00 to 1.00 32.5 bp 12.5 bp
(b) Greater than 1.00 to 1.00
but Equal to or Less than
2.00 to 1.00 45.0 15.0
(c) Greater than 2.00 to 1.00
but Equal to or Less than
3.00 to 1.00 60.0 20.0
(d) Greater than 3.00 to 1.00 75.0 25.0
Until receipt by the Agent of a Compliance Certificate for the second
quarter of Fiscal Year 1997 the Applicable Margin for Eurodollar Loans and
Swing Line Loans shall be not less than 45 basis points and the Unused Fee
shall be not less than 15 basis points;
"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;
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"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;
"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 Exhibit C;
---------
"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 the Revolving Credit
Facility or a Swing Line Loan, in the forms attached hereto, respectively,
as Exhibits D-1 and D-2;
--------------------
"Business Day" means any day which is not a Saturday, Sunday or a day
on which banks in the States of Florida, New York and North Carolina are
authorized or obligated by law, executive order or governmental decree to
be closed;
"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
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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 Expenditures" means for any period the sum of (without
duplication) all expenditures (whether paid in cash or accrued as
liabilities) by the Borrower or any Subsidiary during that period that are
for items that would be classified as "property, plant or equipment" or
comparable items on the consolidated balance sheet of the Borrower or any
Subsidiary, excluding, however, the amount of any such expenditures paid
for with proceeds of casualty insurance;
"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;
"Collateral" means, collectively, all property of the Borrower, any
Subsidiary or any other Person in which the Agent or any Lender is granted
a Lien as security for all or any portion of the Obligations under the
Pledge Agreement;
"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
Revolving Credit 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-2 and
-----------
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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, plus (vi) a one-time restructuring charge incurred, net of
income tax effects, in the fourth quarter of Fiscal Year 1996 in an amount
not to exceed $28,502,000, 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
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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
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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;
- 14 -
"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;
"Dollars" and the symbol "$" means dollars constituting legal tender
for the payment of public and private debts in the United States of
America;
"Domestic Subsidiary" means a Subsidiary of the Borrower that is
organized under the laws of the United States or any state or territory
thereof;
"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 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
-------- -------
- 15 -
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
- 16 -
and undivided profits aggregating at least $400,000,000 and being
rated A-3 or better by S&P or A 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;
"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 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;
- 17 -
"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 Schedule 1.02 attached hereto;
-------------
"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 52-53 week period of the Borrower ending at
the close of business on the Sunday which is closest to December 31 of each
calendar year;
"Four-Quarter Period" means a period of four full consecutive fiscal
quarter periods, taken together as one accounting period;
- 18 -
"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 the Material Subsidiaries of the Borrower who shall
either deliver to the Agent a Guaranty at the Closing Date or shall
thereafter execute and deliver to the Agent a Guaranty Agreement pursuant
to Section 8.19 hereof;
"Guaranty Agreement" means that certain Amended and Restated
Subsidiary Guaranty and Suretyship Agreement dated as of even date hereof,
or each additional Guaranty and Suretyship Agreement delivered pursuant to
Section 8.19 hereof dated as of the date of delivery thereof, 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
- 19 -
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);
"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 Telerate
Page 3750 (or any successor page) as the London interbank offered rate for
deposits in Dollars 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, the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in Dollars 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;
"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) Euro Business Days
prior to the beginning of such Interest Period; provided, that,
--------
(i) if the Authorized Representative fails to notify the Agent of
the length of an Interest Period three (3) Euro Business Days 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
as of the first day thereof;
(ii) if an Interest Period for a Eurodollar Loan would end on a
day which is not a Euro Business Day such Interest Period shall be
extended to the next Euro 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 Euro 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;
- 20 -
(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;
- 21 -
"Loan Documents" means this Agreement, the Notes, the Guaranty
Agreements, the Applications and Agreements for Letters of Credit, the LC
Account Agreement, the Pledge Agreements 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 any direct or indirect Domestic
Subsidiaries of Borrower existing on the Closing Date and in the case of
any Domestic Subsidiary acquired or created after the Closing Date any
direct or indirect Domestic Subsidiary of the Borrower which (i) has total
assets equal to or greater than 5% of Consolidated Total Assets (calculated
as of the most recent fiscal period with respect to which the Agent shall
have received financial statements required to be delivered pursuant to
Sections 8.01(a) or (b) (or if prior to delivery of any financial
statements pursuant to such Sections, then calculated with respect to the
Fiscal Year end financial statements referenced in Section 7.01(f) (the
"Required Financial Information")) or (ii) has pre-tax income equal to or
greater than 5% of Consolidated Pre-Tax Income (calculated for the most
recent period for which the Agent has received the Required Financial
Information); provided, however, that notwithstanding the foregoing, the
-------- -------
term "Material Subsidiaries" shall mean Domestic Subsidiaries of the
Borrower that together with the Borrower have assets equal to not less than
85% of Consolidated Total Assets (calculated as described above) and pre-
tax income of not less than 85% of Consolidated Pre-Tax Income (calculated
as described above); provided further that if more than one combination of
-------- -------
Domestic Subsidiaries satisfies such threshold, then those Domestic
Subsidiaries so determined by the Borrower to be "Material Subsidiaries"
shall be specified by the Borrower;
"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;
- 22 -
"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 Revolving Credit Notes, the Swing
Line Notes 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 obliga tions, 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 Credit Obligations" means the sum of (i) the outstanding
Revolving Credit 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;
"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 worker's
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;
- 23 -
(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 existing on the date hereof and disclosed on Schedule
7.01(g);
(j) any Lien renewing, extending, refinancing or refunding any Lien
permitted by clauses (a), (c), (d), (e), (f), (g), (h) or (i) 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;
"Pledge Agreement" means, collectively (or individually as the context
may indicate), (i) that certain Amended and Restated Stock Pledge Agreement
dated as of the date hereof between the Borrower and the Agent for the
benefit of the Agent and the Lenders, (ii) that certain Stock Pledge
Agreement dated as of the date hereof between the Borrower and the Agent
for the benefit of the Agent and the Lenders, (iii) that certain Amended
and Restated Subsidiary Stock Pledge Agreement dated as of the date hereof
between Computer Professionals, Inc. and the Agent for the benefit of the
Agent and the Lenders, (iv) that certain Subsidiary Stock Pledge Agreement
dated as of the date hereof by and among certain Subsidiaries of the
Borrower and the Agent for the benefit of the Agent and the Lenders, and
- 24 -
(v) any additional Stock Pledge Agreement delivered to the Agent pursuant
to Section 8.19, as they may hereafter be amended, supplemented or replaced
from time to time;
"Pledged Stock" has the meaning given to such term in the Pledge
Agreement;
"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
Independence Center, 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;
"Regulation D" means Regulation D 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
- 25 -
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) 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 (a) other than following the occurrence
and during the continuance of an Event of Default, to its Revolving Credit
Commitment, and (b) following the occurrence and during the continuance of
an Event of Default, to the aggregate principal amount of the Revolving
Credit Loans and Competitive Bid Loans owing to such Lender plus the
aggregate unutilized amounts of such Lender's Revolving Credit Commitment
plus the amount of such Lender's Applicable Commitment Percentage of Swing
Line Loans and Outstanding Letters of Credit and of the Reimbursement
Obligations; 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;
"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 Facility" means the facility described in Section
2.01(a) 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 Outstanding Credit Obligations;
"Revolving Credit Loan" means a Loan made pursuant to the Revolving
Credit Facility;
"Revolving Credit 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;
- 26 -
"Revolving Credit Termination Date" means (i) May 22, 2002 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 Revolving
Credit Facility and the Competitive Bid Facility by payment in full of all
Obligations (including the discharge of all Obligations of the Lenders and
NationsBank with respect to Letters of Credit, Participations and
Competitive Bid Loans);
"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;
"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; provided that for purposes of this
Agreement People Systems, Inc. shall be deemed a Subsidiary so long as it
is deemed to be under the control of the Borrower;
"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(c) hereof substantially in the form attached hereto as Exhibit
-------
F-3, with appropriate insertions as to amounts, dates and names;
---
- 27 -
"Swing Line Outstandings" means, as of any date of determination, the
aggregate principal amount of all Swing Line Loans then outstanding;
"Total Letter of Credit Commitment" means an amount not to exceed
$40,000,000;
"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;
"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.
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
- 28 -
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 Facility
-------------------------
(a) Commitment. Subject to the terms and conditions of this Agreement,
----------
each Lender agrees to make Advances to the Borrower, from time to time from the
Closing Date until the Revolving Credit Termination Date on a pro rata basis as
to the total borrowing requested by the Borrower under the Revolving Credit
Facility on any day determined by its Applicable Commitment Percentage up to but
not exceeding the Revolving Credit 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 Credit Obligations shall not exceed the
Total Revolving Credit Commitment. Within such limits, the Borrower may borrow,
repay and reborrow hereunder, on a Business Day in the case of a Base Loan and
on a Euro Business Day in the case of a Eurodollar Loan, from the Closing Date
until, but (as to borrowings and reborrowings) not including, the Revolving
Credit Termination Date; provided, however, that (x) no Eurodollar Loan shall be
--------
made which has an Interest Period that extends beyond the Revolving Credit
Termination Date and (y) each Eurodollar Loan may, subject to the provisions of
- 29 -
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.
(b) Amounts. The aggregate unpaid principal amount of the Outstanding
-------
Credit Obligations shall not exceed at any time, an amount equal to the Total
Revolving Credit Commitment. At no time shall the outstanding principal amount
of Swing Line Loans exceed $20,000,000. Each Loan (other than Swing Line Loans
which shall be governed by Section 2.15) hereunder and each Conversion under
Section 2.09 shall be in an amount of at least $5,000,000 and an integral
multiple of $500,000.
(c) Advances. (i) An Authorized Representative shall give the Agent (1)
--------
at least three (3) Euro 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 Loan that is a Eurodollar Loan (whether representing an additional
borrowing hereunder or the Conversion of borrowing hereunder from Base Loans to
Eurodollar Loans or the Continuation of a Eurodollar Loan for an additional
Interest Period) prior to 10:30 A.M. Charlotte, North Carolina time and (2)
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 Loan (other than Base Rate Refunding Loans to
the extent the same are effected without notice pursuant to Section 2.01(c)(iv))
that is a Base Loan (whether representing an additional borrowing hereunder or
the Conversion of borrowing hereunder from Eurodollar Loans to Base Loans) prior
to 10:30 A.M. Charlotte, North Carolina time one Business Day prior to the day
of such proposed Loan. Each such notice shall specify the amount of the
borrowing, the Type (Base or Eurodollar), 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 provided by the Agent to each Lender by
telefacsimile transmission with reasonable promptness, 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.
(ii) Not later than 2:00 P.M. Charlotte, North Carolina time 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 Loan or 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.
(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
- 30 -
outstanding at the same time, provided, however, there shall not be outstanding
-------- -------
at any one time Eurodollar Loans and Competitive Bid 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 Loan to (or
Continue such Loan as) a Base Loan 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 Revolving Credit
Termination Date, and the Borrower shall not immediately fully reimburse
NationsBank in respect of such drawing, (A) provided that the conditions to
making a 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 Revolving Credit Facility in an amount equal to such Lender's
Applicable Commitment Percentage of such Reimbursement Obligation, and (B) if
the conditions to making a 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 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(c)(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(c)(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
Revolving Credit Termination Date and provided no Default or Event of Default
- 31 -
exists hereunder, the Borrower may, as set forth in this Section 2.02, request
the Lenders to make offers to make Competitive Bid Loans 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 Credit Obligations, shall not exceed the Total
Revolving Credit Commitment at any time. The aggregate principal amount of all
outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of
the Total Revolving Credit Commitment at any time. No Competitive Bid Loan
shall have a maturity date subsequent to the Revolving Credit Termination Date.
(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.
Charlotte, North Carolina time 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 Exhibit H 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
- 32 -
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 Borrower's 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. 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) 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. Charlotte, North Carolina time 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 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,
- 33 -
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 Agent's 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. 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), 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 Section 2.02(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 Credit Obligations owing to a
Lender or Lenders offering the lowest Absolute Rate to exceed the Total
Revolving Credit Commitment.
- 34 -
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. Charlotte, North Carolina time 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 Borrower's 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
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 the Lender making a Competitive
Bid Loan, at the Absolute Rate, and (iii) 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 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
Loan shall be paid (i) quarterly in arrears on the last Business Day of each
March, June, September and December, commencing June 30, 1997, on each Base
Loan, (ii) on the last day of the applicable Interest Period for each Eurodollar
Loan and, if any Interest Period extends for more than three months, at
intervals of three months after the first day of the Interest Period in respect
of such Eurodollar Loan, and (iii) upon payment in full of the principal amount
of the Loan at the Revolving Credit Termination Date.
2.04 Payment of Principal. The principal amount of the Revolving Credit
--------------------
Outstandings and the Swing Line Outstanding shall be due and payable to the
Agent for the benefit of each Lender in full on the Revolving Credit Termination
Date, or earlier as herein expressly provided. The principal amount of all
- 35 -
Competitive Bid Loans shall be due and payable to the Agent for the benefit of
the Lender making such Competitive Bid Loan in full on the last day of the
Interest Period therefor, or earlier as herein expressly provided. The
principal amount of Eurodollar Loans may only be prepaid at the end of the
applicable Interest Period, unless the Borrower shall pay to the Agent for the
account of the Lenders the amount, if any, required under Section 4.05. The
Borrower shall furnish the Agent telephonic notice of its intention to make a
principal payment (including Competitive Bid Loans) prior to 11:00 A.M.
Charlotte, North Carolina time on the date of such payment. All payments of
principal on Loans other than Competitive Bid Loans and Swing Line Loans shall
be in the amount of $10,000,000 or such greater amount which is an integral
multiple of $1,000,000.
2.05 Time of Payments; Non-Conforming Payments. (a) Each payment of
-----------------------------------------
principal (including any prepayment) and payment of interest (other than
principal and interest on Competitive Bid Loans which shall be paid to the Agent
for the benefit of the Lender making such Loan) and fees, and any other amount
required to be paid to the Lenders with respect to the Loans, shall be made to
the Agent at the Principal Office, for the account of each Lender, in Dollars
and in immediately available funds before 12:30 P.M. Charlotte, North Carolina
time on the date such payment is due. The Agent may, 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 in Dollars and in immediately available funds
and prior to 12:30 P.M. Charlotte, North Carolina time on the date such payment
is due to be a non-conforming payment. Any such payment shall not be deemed to
be received by the Agent until the first Business Day on which such funds were
available prior to 12:30 P.M. Charlotte, North Carolina time. Any non-
conforming payment may constitute or become a Default or Event of Default.
Interest shall continue to accrue on any principal as to which a non-conforming
payment is made until the first Business Day on which such funds were available
prior to 12:30 P.M. Charlotte, North Carolina time 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) Revolving Credit Loans made by each Lender, shall be
-----
evidenced by, and be repayable with interest in accordance with the terms of,
the Revolving Credit Note payable to the order of such Lender in the amount of
its Applicable Commitment Percentage of the Total Revolving Credit Commitment,
which Revolving Credit Note shall be dated the Closing Date or such later date
- 36 -
pursuant to an Assignment and Acceptance and shall be duly completed, executed
and delivered by the Borrower.
(b) 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 the Total Revolving
Credit Commitment (but the aggregate outstanding principal amount of Competitive
Bid Loans may not at any time exceed one hundred percent (100%) of the Total
Revolving Credit 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.
(c) 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.
----------
(a) Voluntary. 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 the Total Revolving Credit
Commitment. 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 Revolving Credit Commitment and shall permanently reduce
the Total Revolving Credit Commitment; provided, that a reduction made pursuant
--------
to Section 9.05 may be in the amount of the net proceeds received by the
Borrower or its Subsidiaries. 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 Revolving Credit Commitment shall be
accompanied by payment of the Loans to the extent that the sum of the
Outstanding Credit Obligations exceed the Total Revolving Credit Commitment,
after giving effect to such reduction, together with accrued and unpaid interest
on the amounts prepaid.
(b) Mandatory. The Borrower shall permanently reduce the Total Revolving
---------
Credit Commitment in a principal amount equal to any Indebtedness incurred under
Section 9.04(d) which is in excess of 10% of Consolidated Shareholders' Equity
(the "Excess Amount"). Such reduction of the Total Revolving Credit Commitment
shall be effective not later than five Business Days following receipt by the
Borrower or any Subsidiary of any Excess Amount. Any reduction of the Total
Revolving Credit Commitment pursuant to this Section 2.08(b) shall be
accompanied by amounts due, if any, under Section 4.05. Each such reduction
shall be accompanied by payment of the Loans to the extent that the sum of the
Outstanding Credit Obligations exceed the Total Revolving Credit Commitment,
after giving effect to such reduction, together with accrued and unpaid interest
on the amounts prepaid.
- 37 -
2.09 Conversions and Elections of Subsequent Interest Periods. Provided
--------------------------------------------------------
that no Default or Event of Default shall have occurred and be continuing and
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. Charlotte, North
Carolina 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) 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) Euro
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 Revolving
--------------------------------
Credit 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 Revolving Credit Termination Date (or such earlier date on which the
Revolving Credit Facility has terminated), the Borrower agrees to pay to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
- 38 -
Commitment Percentages an Unused Fee equal to the Applicable Margin per annum
times the sum of the daily amount by which the Total Revolving Credit Commitment
exceeds the sum of the average daily (i) Revolving Credit Outstandings (which do
not include Swing Line Outstandings in the case of Lenders other than
NationsBank and outstanding Competitive Bid Loans) and (ii) Letter of Credit
Outstandings. 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 June 30, 1997 to and on the Revolving Credit Termination Date (or such
earlier date on which the Revolving Credit Facility has terminated). Such fee
shall be calculated on the basis of a year of 360 days for the actual number of
days elapsed.
2.13 Deficiency Advances. 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 Revolving
Credit 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 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 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 Lender's failure to fund its portion of a Loan.
2.14 Use of Proceeds. The proceeds of the Loans made pursuant to the
---------------
Revolving Credit Facility hereunder shall be used by the Borrower for working
capital and other 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 Revolving Credit 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 to the
Borrower prior to the Revolving Credit 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
- 39 -
after giving effect to such Swing Line Loan, the Outstanding Credit Obligations
exceed the Total Revolving Credit 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. Charlotte, North Carolina time 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(b) 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.
(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
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 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(c)(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
- 40 -
Termination Date, at which time all Swing Line Outstandings and accrued interest
thereon shall be due and payable in full.
ARTICLE III
Letters of Credit
-----------------
3.01 Letters of Credit. 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 Revolving Credit Termination Date. NationsBank
shall not issue any Letter of Credit if, after giving effect thereto, the
Outstanding Credit Obligations exceed the Total Revolving Credit 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 Revolving Credit Facility if permitted by Section 2.01(c)
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 Section 2.01(c)(iv) and
Section 2.15, amounts shall be paid pursuant to Advances under the Revolving
Credit 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(c)(iv),
NationsBank shall notify the Agent of any drawing under any Letter of Credit
promptly following the receipt by NationsBank of such drawing.
- 41 -
(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(c)(iv).
(ii) Simultaneously with the making of each payment by a Lender to
NationsBank pursuant to Section 2.01(c)(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(c)(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(c)(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(c)(iv) or this Section 3.02(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 Section 2.01(c) 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.
- 42 -
(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.
(g) Without limiting the Borrower's rights as set forth in Section
3.02(f) above, the obligation of the Borrower to immediately reimburse
NationsBank for drawings made under Letters of Credit shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement and such Letters of Credit and the related
Applications and Agreements for any Letter of Credit, under all circumstances
whatsoever, including, without limitation, the following circumstances:
(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;
- 43 -
(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.
- 44 -
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 Eurodollar Loans, its
Note, or its obligation to make 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 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 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 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.
- 45 -
(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) 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
- 46 -
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 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
- 47 -
(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 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
- 48 -
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 Lender's 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 Lender's 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 Lender's income tax liability for the taxable period in question is
reduced below what would have been payable had the Borrower not been required to
- 49 -
pay the Lender's 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
Security
--------
5.01 Security. 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 and its counsel to
grant to the Agent for the benefit of the Lenders a duly perfected first
priority security interest in all Collateral subject to no prior Lien or other
encumbrance or restriction on transfer (other than Permitted Liens and
restrictions on transfer imposed by applicable securities laws).
5.02 Further Assurances. At the request of the Agent, the Borrower will or
------------------
will cause its Subsidiaries, as the case may be, to execute, by its duly
authorized officers, alone or with the Agent, any certificate, instrument,
statement or document, or to procure any such certificate, instrument, statement
or document, or to take such other action (and pay all connected costs) which
the Agent reasonably deems necessary from time to time to create, continue or
preserve the liens and security interests in Collateral (and the perfection and
priority thereof) of the Agent contemplated hereby and by the other Loan
Documents.
ARTICLE VI
Conditions to Making Loans and Issuing
--------------------------------------
Letters of Credit
-----------------
6.01 Conditions of Initial 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 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 Note and the
other Loan Documents, together with all schedules and exhibits thereto;
(b) the pledged stock and stock powers executed in blank;
(c) 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;
--------------------
(d) 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
- 50 -
Representative and approving and adopting the Loan Documents to be executed
by such Person, and authorizing the execution and delivery thereof;
(e) 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;
(f) the charter documents and bylaws of each of the Loan Parties,
certified by the secretary or assistant secretary of such Guarantor;
(g) 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;
(h) appropriate certificates of qualification to do business, good
standing and, where appropriate, authority to conduct business under
assumed name, issued in respect of each of the Loan Parties 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;
(i) 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;
(j) notice of appointment of the initial Authorized Representative;
(k) evidence of insurance required by the Loan Documents; and
(l) 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
- 51 -
financial statements referred to in Section 7.01(f)(i) shall be deemed to
be those financial statements most recently delivered to the Agent and the
Lenders pursuant to Section 8.01 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 Loan, the aggregate principal balance of all outstanding
Loans for each Lender shall not exceed such Lender's Revolving Credit
Commitment;
(ii) 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;
(iii) a Swing Line Loan, the Swing Line Outstandings shall not
exceed $20,000,000; and
(iv) a Loan (including a Swing Line Loan) or a Letter of Credit,
the sum of Outstanding Credit Outstandings shall not exceed the Total
Revolving Credit Commitment.
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;
- 52 -
(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; and
(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;
(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) 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.
- 53 -
(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 has heretofore furnished to
-------------------
the Agent for the benefit of the Lenders audited consolidated balance
sheets of the Borrower and its Subsidiaries as at January 1, 1995, December
31, 1995 and December 31, 1996 and the notes thereto and the related
consolidated statements of income, stockholders' equity and cash flows for
the Fiscal Years then ended as examined and certified by Coopers & Lybrand.
Except as set forth therein, such financial statements (including the notes
thereto) present fairly the financial condition of the Borrower and its
Subsidiaries as of the end of such Fiscal Years and results of their
operations and the changes in their stockholders' equity for the Fiscal
Years 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;
(ii) since December 31, 1996, there has been no material adverse
change in the condition, financial or otherwise, of the Borrower and its
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;
- 54 -
(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 Schedule 7.01(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;
- 55 -
(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. (S)
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;
- 56 -
(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; the
neither 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
- 57 -
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.
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 Coopers & Lybrand, 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"
- 58 -
status of the Borrower; and (ii) a certificate of an Authorized Representative
demonstrating compliance with Sections 9.01, 9.02, 9.03, 9.04, 9.05(d) and
8.19(b) and (c) 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.
- 59 -
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 Pay Indebtedness to Lenders and Perform Other Covenants. (a) Make
-------------------------------------------------------
full and timely payment of the principal of and interest on the Notes and all
other Obligations whether now existing or hereafter arising; and (b) duly comply
with all the terms and covenants contained in all Loan Documents and other
instruments and documents given to the Agent or the Lenders pursuant hereto or
thereto.
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
- 60 -
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.
8.09 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. 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 Complaint.
------------------------------------------------------------------
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
- 61 -
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.
8.19 Material Subsidiaries. (a) Within thirty (30) days of the
---------------------
acquisition or creation of any Material Subsidiary or any existing Subsidiary
becoming a Material Subsidiary, cause to be delivered to the Agent each of the
following:
- 62 -
(i) a Guaranty Agreement substantially in the form attached hereto as
Exhibit K;
---------
(ii) (a) to the extent required by clause (b) hereof, the Pledged
Stock, together with duly executed stock powers in blank affixed thereto,
and (b) if such Collateral shall be owned by a Subsidiary who has not then
executed and delivered to the Agent a security instrument from the owner of
such Collateral granting a Lien to the Agent in such Collateral, a Pledge
Agreement substantially similar in form and content to that executed and
delivered by the Borrower as of the Closing Date, with appropriate
revisions as to the identity of the pledgor and securing the obligations of
such pledgor under its Guaranty Agreement;
(iii) an opinion of counsel to the Subsidiary dated as of the date of
delivery of the Guaranty Agreement provided in the foregoing clause (i) and
addressed to the Agent and the Lenders, in form and substance reasonably
acceptable to the Agent (which opinion may include assumptions and
qualifications of similar effect to those contained in the opinions of
counsel delivered pursuant to Section 6.01(b) hereof), to the effect that:
(A) such Subsidiary is duly organized, validly existing and
in good standing in the jurisdiction of its organization, has the
requisite power and authority to own its properties and conduct its
business as then owned and then proposed to be conducted; and
(B) the execution, delivery and performance of the Guaranty
Agreement and other Loan Documents described in clause (i) and (ii) of
this Section 8.19 to which such Subsidiary is a signatory have been
duly authorized by all requisite corporate action (including any
required shareholder approval), such agreements have been duly
executed and delivered and constitute valid and binding obligations of
such Subsidiary, enforceable against such Subsidiary in accordance
with their terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law affecting
the enforceability of creditors' rights generally and 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); and
(iv) current copies of the charter documents, including partnership
agreements and certificate of limited partnership, if applicable, and
bylaws of such Subsidiary, minutes of duly called and conducted meetings
(or duly effected consent actions) of the Board of Directors, partners, or
appropriate committees thereof (and, if required by such charter documents,
bylaws or by applicable laws, of the shareholders or partners) of such
Subsidiary authorizing the actions and the execution and delivery of
documents described in clause (i) of this Section 8.19 and evidence
satisfactory to the Agent (confirmation of the receipt of which will be
provided by the Agent) that such Subsidiary is Solvent as of such date and
after giving effect to the Guaranty Agreement.
- 63 -
(b) Cause at all times the Agent to have a duly perfected first priority
security interest in (x) all of the issued and outstanding capital stock of
Subsidiaries which together with the Borrower have assets and pre-tax income
equal to not less than 80% of Consolidated Total Assets (calculated as provided
in the definition "Material Subsidiaries") and 80% of Consolidated Pre-Tax
Income (calculated as referred to above) and (y) all the outstanding capital
stock of each Subsidiary which either owns 10% or more of Consolidated Total
Assets (calculated as referred to above) or 10% of Consolidated Pre-Tax Income.
(c) Cause at all times, or within the time set forth in clause (a) of this
Section 8.19 in the case of a Material Subsidiary described therein,
- ------------
Subsidiaries, together with the Borrower, who have assets equal to not less than
85% of Consolidated Total Assets (as calculated as described in the definition
of Material Subsidiary ) and pre-tax income of not less than 85% of
Consolidated Pre-Tax Income (calculated as described in the definition of
Material Subsidiary ) to have executed and delivered to the Agent a Guaranty
Agreement.
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 during the periods set forth below the Consolidated Leverage Ratio to
exceed that set forth below opposite such period:
Period Ratio
------ -----
(a) Closing Date through December 3.25 to 1.00
27, 1997
(b) Thereafter 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
-------------
- 64 -
refinancings, renewals or extensions thereof and containing covenants no
more restrictive than those contained in this Agreement;
(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; provided, however, to the
-------- -------
extent the principal amount of any additional unsecured Indebtedness is in
excess of 10% of Consolidated Shareholders' Equity, Borrower shall be
required to prepay the Total Revolving Credit Commitment, in accordance
with Section 2.08(b) hereof, in the principal amount of any such excess;
and
. (e) Indebtedness consisting of a guaranty by the Borrower or a
Subsidiary of the obligations of another Subsidiary.
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 Guarantor, or (ii) any other asset of Borrower or any
Guarantor except (a) assets sold in the ordinary course of business, (b) assets
which are worn out, obsolete or no longer necessary, (c) a transfer by the
Borrower or a Subsidiary of assets to another Subsidiary or the Borrower, or (d)
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;
----------------
- 65 -
(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 $10,000,000;
(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 five percent (5%) of Consolidated
Shareholders' Equity;
(vii) Investments 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 Subsidiary; 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 $100,000 in the aggregate
outstanding at one time.
9.07 Liens. Except for Permitted 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 unless (i) the Borrower shall grant to the
Agent for the benefit of the Lenders a Lien which ranks pari passu with such
Lien and (ii) the Indebtedness owed such other Person shall not contain
covenants or conditions more restrictive than those contained in this Agreement.
9.08 Dividends or Distributions. Declare or pay any dividends (other than
--------------------------
those payable solely in capital stock) or distribution in reduction of capital
or otherwise in respect of any equity interest, or purchase, redeem or otherwise
retire any such equity interest except (i) the Borrower may repurchase capital
- 66 -
stock of Borrower owned by employees of Borrower or its Subsidiaries who have
died, retired, become disabled or separated from employment by Borrower or a
Subsidiary, so long as the amount paid in any Fiscal Year to acquire such stock
does not exceed $1,000,000 and (ii) Subsidiaries may pay dividends to the
Borrower.
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) 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;
- 67 -
(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.
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 Article III 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
- 68 -
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, 8.07(a), 8.08, 8.10, 8.19, 8.20 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 obliga tion 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;
- 69 -
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; or
(k) if the Borrower or any Subsidiary shall breach any of the terms or
conditions of any agreement under which any Rate Hedging Obligation
permitted pursuant to Section 9.15 is created and such breach shall
continue beyond any grace period, if any, relating thereto pursuant to the
terms of such Obligation, or the Borrower or any Subsidiary shall disaffirm
or seek to disaffirm any such agreement or any of its obligations
thereunder; or
(l) if at any time the Agent shall not be in receipt within the time
set forth in Section 8.19 of the Guaranty Agreement of each Material
Subsidiary;
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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 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
- 71 -
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 2.11, 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.
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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.
- 73 -
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
- 74 -
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.
ARTICLE XII
Miscellaneous
-------------
12.01 Assignments and Participations. (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
- 75 -
(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 Section 4.06.
(b) The Agent shall maintain at its address referred to in Section
12.02 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 Note 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 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 Lender s 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 Lender s 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).
- 76 -
(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:
AccuStaff Incorporated
6440 Atlantic Boulevard
Jacksonville, Florida 32211
Attention: Chief Executive Officer
Telephone: (904) 725-5574
Telefacsimile: (904) 725-8513
(b) if to the Lender:
NationsBank, National Association (South)
400 N. Ashley Drive
Tampa, Florida 33602
Attention: Corporate Finance Department
Telephone: (813) 224-5509
Telefacsimile: (813) 224-5948
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with a copy to:
NationsBank, National Association (South)
Independence Center, 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 (South)
One NationsBank Plaza, T21-3
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 Section 12.03 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
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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 (which amount, for preparation of a first
draft only of this Agreement and actual closing of the transaction shall not
exceed $25,000, the Borrower agreeing that payment of all additional legal fees
(which shall be reasonable and at standard billing rates) for services over and
above preparation of such first draft and closing shall be paid by Borrower) 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
- 79 -
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 any Guarantor or all or
substantially all of the Collateral; 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
- 80 -
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; PROVIDED THAT THIS SECTION 12.11 SHALL NOT
AFFECT THE APPLICABILITY OF, AND INTERPRETATION OR CONSTRUCTION OF APPROPRIATE
TERMS AND PROVISIONS UNDER THE UNIFORM COMMERCIAL CODE OF ANY JURISDICTION WHICH
GOVERN THE LIENS ON ANY OF THE COLLATERAL. THE BORROWER AND THE AGENT HEREBY
SUBMIT TO THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA
- 81 -
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.
- 82 -
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]
- 83 -
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.
ACCUSTAFF INCORPORATED
WITNESS:
__________________________ By: /s/ Derek E. Dewan
-----------------------
Name: Derek E. Dewan
__________________________ Title: President & Chief Executive
Officer
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as Agent
By: /s/ Miles C. Dearden III
-----------------------------
Name: Miles C. Dearden III
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as a Lender
By: /s/ Miles C. Dearden III
----------------------------
Name: Miles C. Dearden III
Title: Senior Vice President
FIRST UNION NATIONAL BANK OF FLORIDA
By: /s/ Ralph L. Kelly
-----------------------
Name: Ralph L. Kelly
Title: Vice President
Lending Office:
225 Water Street
Jacksonville, Florida 32202
Wire Transfer Instructions:
First Union National Bank of Florida
Jacksonville, Florida
ABA #063000021
Attention: Cindy Petry
904-361-1823
- 84 -
SUNTRUST BANK, NORTH FLORIDA,
NATIONAL ASSOCIATION
By: /s/ C. William Buchholz
----------------------------
Name: C. William Buchholz
Title: First Vice President
Lending Office:
200 S. Orange Avenue, MC 0-2066
Orlando, Florida 32801
Wire Transfer Instructions:
SunTrust Bank, Central Florida, N.A.
Orlando, Florida
ABA #0631022152
Account # AccuStaff, Inc.
Attention: Commercial Loan Operations
#902150000006000
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Curt Price
-----------------------------------
Name: Curt Price
Title: Authorized Agent
Lending Office:
One First National Plaza
Suite 0324
Chicago, Illinois 60670
Wire Transfer Instructions:
The First National Bank of Chicago
Chicago, Illinois
ABA #071000013
Account #7521-7653
Attention: DCS Incoming Clearing Account
Reference: AccuStaff Incorporated
- 85 -
BARNETT BANK, N.A.
By: /s/ Stan C. Entsminger
---------------------------
Name: Stan C. Entsminger
Title: Senior Vice President
Lending Office:
50 N. Laura Street
Jacksonville, Florida 32231-0990
Wire Transfer Instructions:
Barnett Bank, N.A.
Jacksonville, Florida
ABA #063000047
Account #0100068550
Attention: Susan S. Delgado
Reference: AccuStaff Incorporated
BANK OF AMERICA ILLINOIS
By: /s/ Laurens F. Schaad, Jr.
--------------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
Lending Office:
1230 Peachtree Street, N.W.
Suite 3800
Atlanta, Georgia 30309
Wire Transfer Instructions:
Bank of America Illinois
Chicago Illinois
ABA #071000039
Account #47-03421
Attention: Joycelyn Gay
Reference: AccuStaff Incorporated
- 86 -
FLEET NATIONAL BANK, as Co. Agent
and as Lender
By: /s/ Deborah J. Lawrence
-----------------------------
Name: Deborah J. Lawrence
Title: Vice President
Lending Office:
One Federal Street
Boston, Massachusetts 02110
Wire Transfer Instructions:
Fleet National Bank
Boston, Massachusetts
ABA #011 000 138
Account #1510351
Attention: Commercial Loan Services
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ David M. Cawrse
--------------------------
Name: David M. Cawrse
Title: First Vice President & Manager
Lending Office:
303 Peachtree Street, N.E.
Suite 4400
Atlanta, Georgia 30308
Wire Transfer Instructions:
Credit Lyonnais New York Branch
New York, New York
ABA #0260-0807-3
Account #01.24173.0001.00
Credit: Credit Lyonnais Atlanta Agency
Attention: Loan Servicing
Reference: AccuStaff Incorporated
- 87 -
BANQUE PARIBAS
By: /s/ Duane Helkowski /s/ Mary T. Finnegan
-------------------------------------------
Name: Duane Helkowski - Mary T. Finnegan
Title: Vice President - Group Vice President
Lending Office:
787 Seventh Avenue
New York, New York 10019
Wire Transfer Instructions:
__________________________________
__________, __________
ABA #__________
Account #_______________
Attention: _________________________
Reference: AccuStaff Incorporated
COMERICA BANK
By: /s/ Martin G. Ellis
-----------------------
Name: Martin G. Ellis
Title: Vice President
Lending Office:
500 Woodward Avenue
Detroit, Michigan 48275-3280
Wire Transfer Instructions:
Comerica Bank
Detroit, Michigan
ABA #072000096
Account: AccuStaff
Attention: CLAS
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By: /s/ John L. Stacy
----------------------
Name: John L. Stacy
Title: Vice President
- 88 -
Lending Office:
333 Clay Street
Suite 3400
Houston, Texas 77002
Wire Transfer Instructions:
Banque Nationale de Paris New York Branch
New York, New York
ABA #026007689
Account #141011-001-69
Attention: Donna Jo Rose
Reference: AccuStaff Incorporated
HIBERNIA NATIONAL BANK
By: /s/ Katharine Gonzalez
---------------------------
Name: Katharine Gonzalez
Title: Banking Officer
Lending Office:
313 Carondelet Street
New Orleans, Louisiana 70130
Wire Transfer Instructions:
Hibernia National Bank
New Orleans, Louisiana
ABA #065000090
Account #00520-36615
Attention: Tracy Bergeron
Reference: AccuStaff Incorporated
PNC BANK, KENTUCKY, INC.
By: /s/ Ralph M. Bowman
------------------------
Name: Ralph M. Bowman
Title: V.P.
Lending Office:
500 W. Jefferson Street
Louisville, Kentucky 40202
Wire Transfer Instructions:
- 89 -
PNC Bank, Kentucky, Inc.
Louisville, Kentucky
ABA #083000108
Account #3000991434
Attention: Commercial Loan Operations
Reference: AccuStaff Incorporated
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Tammy F. Hughes
------------------------
Name: Tammy F. Hughes
Title: Vice President
Lending Office:
191 Peachtree Street
Atlanta, Georgia 30303
Wire Transfer Instructions:
Wachovia Bank of Georgia, N.A.
Atlanta, Georgia
ABA #0610 0001 0
Account #18-800-621
Attention: Adrienne Durham
THE BANK OF NEW YORK
By: /s/ David C. Siegel
------------------------
Name: David C. Siegel
Title: Assistant Vice President
Lending Office:
One Wall Street
New York, New York 10286
Wire Transfer Instructions:
The Bank of New York
New York, New York
ABA #021000018
GLA #111-556
Attention: Commercial Loan Dept - Lorna Alleyne
Reference: AccuStaff Incorporated
- 90 -
CIBC INC.
By: /s/ Roger Colden
-----------------
Name: Roger Colden
Title: Director-CIBC Wood Gundy Securities
Corp., as Agent
Lending Office:
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Wire Transfer Instructions:
Morgan Guaranty Bank
New York, New York
ABA #021-000-238
F/A CIBC - New York
#630-00-480
Attention: Credit Operations, Atlanta
Reference: AccuStaff Incorporated
THE DAI-ICHI KANGYO BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Takao Mochizuki
------------------------
Name: Takao Mochizuki
Title: General Manager
Lending Office:
285 Peachtree Center Avenue, N.E.
Suite 2400
Atlanta, Georgia 30303
Wire Transfer Instructions:
The Dai-Ichi Kangyo Bank, Ltd.
New York, New York
ABA #0260 0430 7
For credit to: DKB Atlanta Agency
Account #H79-740-111250
Reference: AccuStaff Incorporated
- 91 -
THE FUJI BANK AND TRUST COMPANY
By: /s/ Toshiaki Yakura
------------------------
Name: Toshiaki Yakura
Title: Senior Vice President
Lending Office:
Two World Trade Center
New York, New York 10048
Wire Transfer Instructions:
The Fuji Bank and Trust Company
ABA #026008905
Account: US Corporate
Reference: AccuStaff
Attention: 515011U2
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ Koichi Hasegawa
------------------------
Name: Koichi Hasegawa
Title: Senior Vice President and
Deputy General Manager
Lending Office:
191 Peachtree Street, N.E.
Suite 3600
Atlanta, Georgia 30303
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited,
New York Branch
New York, New York
ABA #026008345
For further credit to: IBJ Atlanta Agency
Account #2601-21014
Reference: AccuStaff Incorporated
- 92 -
THE SAKURA BANK, LIMITED, ATLANTA
AGENCY
By: /s/ Hiroyasu Imanishi
----------------------
Name: Hiroyasu Imanishi
Title: V.P. and Senior Manager
Lending Office:
245 Peachtree Center Avenue
Suite 2703
Atlanta, Georgia 30303
Wire Transfer Instructions:
Morgan Guaranty Trust Co. of New York
New York, New York
ABA #021 000 238
Account Name: The Sakura Bank, Ltd., New York
Account #631-22-624
In favor of: MTKB, Atlanta, A/C 8000100-1
THE SUMITOMO BANK, LIMITED
By: /s/ Masaki Shinbo
---------------------
Name: Masaki Shinbo
Title: General Manager
Lending Office:
277 Park Avenue
New York, New York 10172
Wire Transfer Instructions:
Morgan Guaranty Trust Company of New York
New York, New York
Account #631-28-256 (The Sumitomo Bank,
Limited)
ABA #021000238
Attention: Loan Operations
Reference: AccuStaff Incorporated
- 93 -
EXHIBIT A
Applicable Commitment Percentages
Revolving Available
Credit Commitment
Name of Lender Commitment Percentage
- ------------------------------------------- ----------- ------------
NationsBank, National Association (South) $35,000,000 7.000000000%
First Union National Bank of Florida 30,000,000 6.000000000%
SunTrust Bank, North Florida, 30,000,000 6.000000000%
National Association
The First National Bank of Chicago 30,000,000 6.000000000%
Barnett Bank, N.A. 30,000,000 6.000000000%
Bank of America Illinois 30,000,000 6.000000000%
Fleet National Bank 30,000,000 6.000000000%
Credit Lyonnais Atlanta Agency 30,000,000 6.000000000%
Banque Paribas 25,000,000 5.000000000%
Comerica Bank 25,000,000 5.000000000%
Banque Nationale de Paris, 25,000,000 5.000000000%
Houston Agency
Hibernia National Bank 25,000,000 5.000000000%
PNC Bank, Kentucky, Inc. 25,000,000 5.000000000%
Wachovia Bank of Georgia, N.A. 25,000,000 5.000000000%
The Bank of New York 15,000,000 3.000000000%
CIBC Inc. 15,000,000 3.000000000%
- 94 -
The Dai-Ichi Kangyo Bank, Limited, 15,000,000 3.000000000%
Atlanta Agency
The Fuji Bank and Trust Company 15,000,000 3.000000000%
The Industrial Bank of Japan, Limited, 15,000,000 3.000000000%
Atlanta Agency
The Sakura Bank, Limited, Atlanta 15,000,000 3.000000000%
Agency
The Sumitomo Bank, Limited 15,000,000 3.000000000%
TOTAL $500,000,000 100%
- 95 -