<PAGE> 1
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
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(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM
TO ---------------
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COMMISSION FILE NUMBER 0-28000
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THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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<TABLE>
<S> <C>
GEORGIA 58-2213805
(State or other jurisdiction of incorporation (I.R.S. Employer Identification No.)
or organization)
</TABLE>
2300 WINDY RIDGE PARKWAY
SUITE 100 NORTH
ATLANTA, GEORGIA 30339-8426
(770) 955-3815
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
The number of outstanding shares of the issuer's class of capital stock as
of November 8, 1996, the latest practicable date, was as follows: 17,648,152
shares of Common Stock, no par value.
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<PAGE> 2
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. AND SUBSIDIARIES
FORM 10-Q
QUARTER ENDED SEPTEMBER 30, 1996
INDEX
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C> <C>
PART I. Financial Information
Item 1. Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets --
September 30, 1996 and December 31, 1995.............................. 1
Condensed Consolidated Statements of Operations --
Three and nine month periods ended September 30, 1996 and September
30, 1995.............................................................. 2
Condensed Consolidated Statements of Cash Flows --
Nine months ended September 30, 1996 and September 30, 1995........... 3
Notes to Condensed Consolidated Financial Statements..................... 4
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations...................................................... 7
PART II. Other Information.......................................................... 11
</TABLE>
<PAGE> 3
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(AMOUNTS IN THOUSANDS, EXCEPT SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1996 1995
------------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents (including reverse repurchase agreements
of $11.6 million at September 30, 1996 -- note F)............... $14,895 $ 642
Receivables:
Billed contract receivables..................................... 3,793 3,203
Unbilled contract receivables................................... 28,667 15,960
Employee advances............................................... 1,295 560
------- -------
Total receivables.......................................... 33,755 19,723
------- -------
Prepaid expenses and other current assets.......................... 574 302
------- -------
Total current assets....................................... 49,224 20,667
------- -------
Property and equipment:
Computer and other equipment....................................... 5,258 2,697
Furniture and fixtures............................................. 1,539 615
Leasehold improvements............................................. 1,131 117
------- -------
7,928 3,429
Less accumulated depreciation and amortization..................... 1,916 918
------- -------
6,012 2,511
------- -------
Noncompete agreements, less accumulated amortization................. 4,768 5,543
Deferred loan costs, less accumulated amortization................... -- 867
Goodwill, less accumulated amortization.............................. 412 472
Other assets......................................................... 491 208
------- -------
$60,907 $ 30,268
======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Note payable to bank............................................... $ -- $ 1,763
Current installments of long-term debt............................. 63 2,522
Accounts payable and accrued expenses.............................. 2,297 1,504
Accrued payroll and related expenses............................... 14,124 7,836
------- -------
Total current liabilities.................................. 16,484 13,625
Long-term debt, excluding current installments....................... 702 17,629
Loans from shareholders.............................................. -- 1,075
Deferred compensation................................................ 1,477 1,036
Deferred income taxes (note C)....................................... 4,005 305
------- -------
Total liabilities.......................................... 22,668 33,670
------- -------
Shareholders' equity (deficit) -- (note B):
Preferred stock, no par value. Authorized 1,000,000 shares; no
shares issued or outstanding in 1996............................ -- --
Common stock, no par value; stated value $.001 per share.
Authorized 60,000,000 shares; issued and outstanding 17,621,152
in 1996......................................................... 18 58
Additional paid-in capital......................................... 33,940 (1,108)
Cumulative translation adjustments................................. (16) (51)
Retained earnings (accumulated deficit)............................ 4,297 (2,301)
------- -------
Total shareholders' equity (deficit)....................... 38,239 (3,402)
------- -------
$60,907 $ 30,268
======= =======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
1
<PAGE> 4
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ ------------------
1996 1995 1996 1995
------- ------- ------- -------
<S> <C> <C> <C> <C>
Revenues............................................... $21,964 $16,249 $55,542 $39,970
Cost of revenues....................................... 11,002 8,364 29,105 21,893
Selling, general and administrative expenses........... 6,623 5,008 18,694 13,443
------- ------- ------- -------
Operating income..................................... 4,339 2,877 7,743 4,634
Interest income (expense), net......................... 162 (479) (227) (1,089)
------- ------- ------- -------
Earnings before income taxes......................... 4,501 2,398 7,516 3,545
Income taxes (note C).................................. 1,759 -- 6,453 305
------- ------- ------- -------
Net earnings......................................... $ 2,742 $ 2,398 $ 1,063 $ 3,240
======= ======= ======= =======
Pro Forma information:
Historical earnings before income taxes.............. $ 4,501 $ 2,398 $ 7,516 $ 3,545
Pro forma income taxes (note C)...................... 1,759 935 2,935 1,382
------- ------- ------- -------
Pro forma net earnings............................ $ 2,742 $ 1,463 $ 4,581 $ 2,163
======= ======= ======= =======
Pro forma earnings per common and common equivalent
share (note D).................................... $ .15 $ .11 $ .27 $ .15
======= ======= ======= =======
Weighted average common and common equivalent shares
outstanding....................................... 18,286 14,948 17,231 14,948
======= ======= ======= =======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
2
<PAGE> 5
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(AMOUNTS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
--------------------
1996 1995
------- --------
<S> <C> <C>
Cash flows from operating activities:
Net earnings.......................................................... $ 1,063 $ 3,240
Adjustments to reconcile net earnings to net cash provided by (used
in) operating activities:
Depreciation and amortization...................................... 1,908 1,306
Deferred compensation expense...................................... 441 257
Deferred income taxes.............................................. 3,700 305
Foreign translation adjustments.................................... 35 29
Changes in assets and liabilities, net of effects of acquisition:
Receivables...................................................... (14,032) (6,926)
Prepaid expenses and other current assets........................ (272) (171)
Other assets..................................................... (250) (91)
Accounts payable and accrued expenses............................ 741 173
Accrued payroll and related expenses............................. 6,288 3,225
------- --------
Net cash provided by (used in) operating activities........... (378) 1,347
------- --------
Cash flows from investing activities:
Purchases of property and equipment................................... (4,499) (1,094)
Acquisition of Fial & Associates, Inc. (note E)....................... -- (550)
------- --------
Net cash used in investing activities......................... (4,499) (1,644)
------- --------
Cash flows from financing activities:
Net increase (decrease) in note payable to bank....................... (1,763) 1,233
Proceeds from issuance of long-term debt.............................. -- 12,700
Proceeds from loans from shareholders................................. 2,600 --
Repayment of long-term debt........................................... (7,117) (1,649)
Repayment of loans from shareholders.................................. (3,675) (599)
Payment of deferred loan costs........................................ -- (1,000)
Capital contributions, net............................................ 33,961 --
Dividends and distributions........................................... (4,876) (10,687)
------- --------
Net cash provided by (used in) financing activities........... 19,130 (2)
------- --------
Net change in cash and cash equivalents....................... 14,253 (299)
Cash at beginning of period............................................. 642 1,284
------- --------
Cash and cash equivalents at end of period.............................. $14,895 $ 985
======= ========
Supplemental disclosures of cash flow information:
Cash paid during the period for
Interest........................................................... $ 1,091 $ 749
======= ========
Income taxes....................................................... $ 1,598 $ --
======= ========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
3
<PAGE> 6
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1996
(UNAUDITED)
NOTE A -- BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements of
The Profit Recovery Group International, Inc. and its wholly owned subsidiaries
(the "Company") have been prepared in accordance with generally accepted
accounting principles for interim financial information and with the
instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do
not include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the opinion of
management, all adjustments (consisting of normal recurring accruals) considered
necessary for a fair presentation have been included. Operating results for the
three and nine month periods ended September 30, 1996 are not necessarily
indicative of the results that may be expected for the year ending December 31,
1996. For further information, refer to the consolidated financial statements
and footnotes thereto included in the Company's prospectus dated March 26, 1996,
and issued in connection with the Company's initial public offering of 4.6
million shares of its common stock (the "Prospectus").
NOTE B -- INITIAL PUBLIC OFFERING
The Company's initial public offering of its common stock was declared
effective by the United States Securities and Exchange Commission on March 26,
1996, and public trading in the registered shares commenced March 27, 1996. The
initial public offering consisted of 4.6 million shares priced at $11 per share
with the Company selling 3.4 million newly issued shares and certain selling
shareholders selling 1.2 million existing shares.
On April 18, 1996, the Company received notification from its initial
public offering underwriting syndicate that the syndicate had exercised its full
over-allotment option to purchase an additional 690,000 shares of Company common
stock. All of these shares were then sold to the underwriting syndicate by
certain selling shareholders. The Company received no proceeds from the sale of
such shares.
NOTE C -- INCOME TAXES
The Company's predecessors (prior to March 28, 1996) consisted primarily of
Subchapter S corporations and a partnership. As such, the federal and state
income taxes with regard to these entities historically have been the
responsibility of the respective shareholders and partners. The results of
operations for all periods presented which include operations prior to April 1,
1996 have been adjusted on a pro forma basis to reflect federal and state income
taxes at a combined rate of 39% as if the Company's predecessors had been C
corporations throughout such periods.
In the second quarter of 1995, the Company's predecessors reorganized and
its international entities became C corporations. Additionally, in connection
with the Company's March 1996 initial public offering, all domestic entities
became C corporations. As a result of these conversions to C corporations, the
Company incurred charges to operations of $305,000 in the second quarter of 1995
and $3.7 million in the first quarter of 1996 for cumulative deferred income
taxes.
Deferred income taxes are determined on the liability method in accordance
with Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes." Deferred income taxes arise from temporary differences between the tax
basis of assets and liabilities and their reported amounts in the financial
statements. Deferred tax assets and liabilities are adjusted for the affects of
changes in tax laws and rates on
4
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THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
the date of enactment. A summary of the components of deferred tax liabilities
and assets at March 31, 1996 follows:
<TABLE>
<S> <C>
Deferred tax liabilities:
Receivables............................................................... $8,537
Accelerated depreciation for tax purposes................................. 195
Goodwill.................................................................. 176
Other..................................................................... 355
------
Gross deferred tax liabilities.................................... $9,263
------
Deferred tax assets:
Accrued payroll and related expenses...................................... $3,938
Accounts payable and accrued expenses..................................... 634
Deferred compensation..................................................... 453
Noncompete agreements..................................................... 233
------
Gross deferred tax assets......................................... $5,258
------
Net deferred tax liabilities...................................... $4,005
======
</TABLE>
No valuation allowances were deemed necessary since all deductible
temporary differences will be utilized primarily against reversals of taxable
temporary differences.
NOTE D -- PRO FORMA EARNINGS PER COMMON AND COMMON EQUIVALENT SHARE
For all periods prior to April 1, 1996, pro forma earnings per common and
common equivalent share has been computed by dividing the pro forma net
earnings, which gives effect to pro forma income taxes, by the weighted average
number of common and common equivalent shares outstanding during the period,
after giving effect to the reorganization enacted at the time of the Company's
March 1996 initial public offering. (See note 15 on page F-17 of the Prospectus
for the various components of the reorganization). For purposes of determining
the weighted average number of common and common equivalent shares for all
periods prior to April 1, 1996, the Company has followed required supplementary
guidance contained in Securities and Exchange Commission Staff Accounting
Bulletin Topic 4D and has treated all common shares, warrants, options and
convertible debentures issued within one year prior to its initial public
offering as exercised and outstanding, using the treasury stock method,
regardless if the effect were antidilutive. In addition, the aforementioned
computation includes the equivalent number of common shares derived from
dividing the distributions payable by $11.00 per share.
For periods subsequent to March 31, 1996, the weighted average number of
common and common equivalent shares has been derived pursuant to requirements of
Accounting Principles Board Opinion No. 15, Earnings per Share. Common
equivalent shares consist of dilutive stock options, calculated using the
treasury stock method. Fully diluted earnings per share is not significantly
different from the primary earnings per share presented.
NOTE E -- ACQUISITION
Effective January 1, 1995, the Company acquired certain assets of Fial &
Associates, Inc. (Fial). The transaction was accounted for under the purchase
method of acquisition accounting. Accordingly, the Company's condensed
consolidated financial statements for the three and nine month periods ended
September 30, 1996 and 1995 include the operating results of Fial throughout
such periods.
5
<PAGE> 8
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE F -- CASH EQUIVALENTS
Cash equivalents at September 30, 1996 consisted of an $11.6 million
reverse repurchase agreement with NationsBank, N.A. (South) which was fully
collateralized by United States of America Treasury Notes in the possession of
such bank. The reverse repurchase agreement in effect on September 30, 1996
matured and was settled on October 1, 1996.
The Company does not intend to take possession of collateral securities on
future reverse repurchase agreement transactions conducted with banking
institutions of national standing. The Company does insist, however, that all
such agreements provide for full collateralization using obligations of the
United States of America having a current market value equivalent to or
exceeding the reverse repurchase agreement amount.
6
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
The following discussion and analysis should be read in conjunction with
the condensed consolidated financial statements and notes thereto included
elsewhere herein.
RESULTS OF OPERATIONS
The following table presents, for the periods indicated, certain items in
the condensed consolidated statements of operations as a percentage of revenues.
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------
1996 1995 1996 1995
----- ----- ----- -----
<S> <C> <C> <C> <C>
HISTORICAL
Revenues..................................................... 100.0% 100.0% 100.0% 100.0%
Cost of revenues............................................. 50.1 51.5 52.4 54.8
Selling, general and administrative expenses................. 30.1 30.8 33.7 33.6
----- ----- ----- -----
Operating income..................................... 19.8 17.7 13.9 11.6
Interest income (expense), net............................... .7 (2.9) (.4) (2.7)
----- ----- ----- -----
Earnings before income taxes......................... 20.5 14.8 13.5 8.9
Income taxes................................................. 8.0 -- 11.6 .8
----- ----- ----- -----
Net earnings......................................... 12.5% 14.8% 1.9% 8.1%
===== ===== ===== =====
PRO FORMA
Historical earnings before income taxes...................... 20.5% 14.8% 13.5% 8.9%
Pro forma income taxes....................................... 8.0 5.8 5.3 3.5
----- ----- ----- -----
Pro forma net earnings............................... 12.5% 9.0% 8.2% 5.4%
===== ===== ===== =====
</TABLE>
Three and Nine Month Periods Ended September 30, 1996 compared to
Corresponding Periods of the Prior Year
Revenues. The Company's revenues consist principally of contractual
percentages of overpayments recovered for clients that are primarily in the
retailing industry. Revenues increased 35% to $22 million for the third quarter
of 1996, up from $16.2 million in the third quarter of 1995. For the nine months
ended September 30, 1996, revenues were $55.5 million, or 39% higher than $40
million achieved in the corresponding period of 1995.
Domestic revenues were $17.7 million in the third quarter of 1996, up 24.1%
from $14.2 million in the third quarter of 1995. For the first nine months of
1996, domestic revenues were $45.2 million, an increase of 29.4% over the
comparable period of 1995. This 29.4% revenue increase consisted of growth from
provision of services to new clients of approximately 12.3% and growth from
existing clients of approximately 17.1%.
During the third quarter of 1996 the Company was notified by a large
grocery client that the Company will not be retained to serve as primary
recovery auditor in 1997. This client represented one of the five largest
domestic accounts of the Company during the nine months ended September 30,
1996, based upon revenues, and represented $2.9 million, or 6.4% of all domestic
revenues earned during that period. Although the Company is seeking an
appointment to serve this client as secondary recovery auditor for 1997 and has
been orally informed by a cognizant client representative that the Company will
be allowed to serve in such capacity, no written 1997 service contract for this
client has been executed as of the date of this filing. Additionally, the
Company's experience indicates that a contract to serve as secondary auditor for
a given client generally provides significantly less in revenues than a contract
to serve as primary auditor.
The Company believes that 1997 revenues which can be reasonably estimated
to be derived from new domestic audits signed so far in 1996 (most of which will
not yield appreciable levels of revenue until 1997) will significantly exceed
the 1997 revenues anticipated to be lost due to domestic clients who have
notified the
7
<PAGE> 10
Company of their intent to either discontinue using the Company's services or to
reduce the level of such services. Factors which influence the amount and timing
of revenues derived from a client include, but are not limited to, client size
and retail industry segment, availability of required audit data, audit
commencement date, level of client cooperation and Company staffing and data
center capacities. Due to these factors, no assurance can be given that 1997
revenues estimated to be derived from new domestic audits signed so far in 1996
will exceed 1997 revenues anticipated to be lost due to client notifications of
service discontinuance or reduction. (See "Forward-looking Statements" elsewhere
herein).
International revenues were $4.3 million in the third quarter of 1996, up
112.9% from $2 million in the third quarter of 1995. For the first nine months
of 1996, international revenues were $10.3 million, a 105.4% increase over $5
million during the comparable period of 1995. International revenue increases
for the 1996 periods over the corresponding periods of 1995 were attributable
primarily to new clients. Company operations in almost all international markets
experienced high rates of revenue growth during the 1996 periods. The Company
continues to believe that the rate of revenue growth for its international
operations will significantly exceed its rate of domestic revenue growth for the
foreseeable future. There can be no assurance, however, that recent
international growth trends will continue.
Cost of Revenues. Cost of revenues consists principally of commissions
paid or payable to the Company's auditors and regional managers based upon the
level of overpayment recoveries. Also included are other direct costs incurred
by these personnel including rental of field offices, travel and entertainment,
telephone, utilities, maintenance and supplies and clerical assistance. Cost of
revenues was 50.1% of revenues for the third quarter of 1996, down from 51.5%
for the comparable quarter of 1995. For the nine months ended September 30,
1996, cost of revenues was 52.4%, down from 54.8% during the comparable period
of 1995.
Domestically, cost of revenues as a percentage of revenues was 50.4% and
52.8%, respectively, for the three and nine month periods ended September 30,
1996. For the corresponding periods of 1995, these percentages were higher at
52.2% and 56.0%, respectively. The 1996 percentage improvements related
principally to contracts-in-progress acquired in January 1995 as part of the
Company's purchase of a domestic competitor, Fial & Associates, Inc. (Fial).
These contracts carried higher auditor compensation rates than those customarily
paid by the Company. Substantially all of these auditor contracts were concluded
in 1995 and, as the audits were concluded, the auditors were transitioned to the
Company's standard compensation arrangements.
Internationally, cost of revenues as a percentage of revenues was 48.7% and
50.6%, respectively, for the quarter and nine months ended September 30, 1996.
These percentages increased from 46.7% and 46.6%, respectively, for the
comparable periods of 1995 due primarily to initial auditor compensation
guarantees in various new markets.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses include the costs of sales and marketing activities,
information technology services and the corporate data center, human resources,
finance and accounting, administration, headquarters-related depreciation of
property and equipment and amortization of intangibles. Selling, general and
administrative expenses as a percentage of revenues decreased slightly to 30.1%
in the third quarter of 1996, down from 30.8% in the third quarter of 1995. For
the nine months ended September 30, 1996, selling, general and administrative
expenses as a percentage of revenues was 33.7%, relatively unchanged from 33.6%
in the comparable period of 1995.
On a domestic basis, selling, general and administrative expenses as a
percentage of revenues improved to 25.9% for the quarter ended September 30,
1996, from 27.6% in the comparable quarter of 1995. For the first nine months of
1996, selling, general and administrative expenses as a percentage of revenues
improved to 29.7%, down from 30.2% during the comparable period of 1995. Since
domestic selling, general and administrative expenses are primarily fixed costs,
these quarterly and year-to-date percentage improvements were achieved primarily
due to emerging economies of scale whereby the Company's rates of domestic
revenue growth have exceeded the related rates of domestic expense growth
required to support the incremental revenues.
Internationally, selling, general and administrative expenses as a
percentage of revenues improved significantly to 47.7% of revenues for the
quarter ended September 30, 1996, compared to 53.3% in the 1995
8
<PAGE> 11
third quarter. For the nine month periods ended September 30, 1996 and 1995,
this percentage likewise improved to 51.1% (1996) from 57.5% (1995). Similar to
the Company's domestic experience, improvements in 1996 related primarily to
various components of fixed costs being spread over a rapidly growing revenue
base.
In connection with acquired businesses, the previous owners agreed to enter
into agreements not to compete with the Company. The intangible assets resulting
from non-compete obligations are amortized on a straight-line basis over their
respective periods. Amortization of deferred non-compete assets totaled $278,000
for both the third quarter of 1996 and the third quarter of 1995. For the nine
month periods ended September 30, 1996 and 1995, such amortization totaled
$834,000 and $923,000, respectively.
Operating Income. Operating income increased 50.8% to $4.3 million in the
third quarter of 1996, up from $2.9 million in the third quarter of 1995. For
the nine months ended September 30, 1996, operating income increased 67.1% to
$7.7 million, up from $4.6 million in the comparable period of 1995. Significant
revenue increases coupled with operating margin increases, the components of
which are discussed above, yielded the improvements in the 1996 periods.
Interest Income (Expense), Net. Subsequent to the Company's initial public
offering in March 1996, substantially all of its long-term debt obligations were
repaid in full. Additionally, the offering provided the Company with substantial
cash balances which have been temporarily invested in interest bearing
instruments. Net interest income of $162,000 during the quarter ended September
30, 1996 consists of interest earned on temporary investments, net of interest
accrued on the Company's remaining long-term debt obligations and deferred
compensation liabilities.
Earnings Before Income Taxes. Earnings before income taxes rose 87.7% and
112.0% in the quarter and nine months ended September 30, 1996, respectively,
compared to the same periods of 1995. Increased revenues, improved operating
margins, and changes in interest income (expense), net, yielded the earnings
growth.
Income Taxes. The Company's predecessors (prior to March 28, 1996)
consisted primarily of Subchapter S corporations and a partnership. As such, the
federal and state income taxes with regard to these entities historically have
been the responsibility of the respective shareholders and partners. In the
second quarter of 1995, the Company's predecessors reorganized and its
international entities became C corporations. Additionally, in connection with
the Company's March 1996 initial public offering, all domestic entities became C
corporations. As a result of these conversions to C corporations, the Company
incurred charges to operations of $305,000 in the second quarter of 1995 and
$3.7 million in the first quarter of 1996 for cumulative deferred income taxes.
During the quarters ended June 30, 1996 and September 30, 1996, income taxes
were provided at the Company's effective tax rate of 39%.
Pro Forma Income Taxes. The results of operations for all periods
presented which include operations prior to April 1, 1996 have been adjusted on
a pro forma basis to reflect federal and state income taxes at a combined rate
of 39% as if the Company's predecessors had been C corporations throughout such
periods.
LIQUIDITY AND CAPITAL RESOURCES
Since 1991, the Company's predecessors have acquired and assimilated three
operating companies and financed these acquisitions primarily through a
combination of bank and seller financing. Ongoing Company operations and capital
requirements have been met primarily with cash flows provided by operating
activities and, to a lesser extent, with the proceeds from bank and shareholder
loans. On March 26, 1996, the Company's initial public offering of its common
stock was declared effective by the United States Securities and Exchange
Commission. On April 1, 1996, the Company received its $34.8 million portion of
the proceeds (net of underwriting discounts and commissions) from the offering.
Of these proceeds, approximately $1.1 million was subsequently utilized to pay
expenses of the offering, approximately $4.9 million was used to pay previously
declared and unpaid Subchapter S shareholder distributions and approximately
$14.6 million was used to pay principal and accrued interest on substantially
all outstanding interest-bearing debt (other than convertible debt that was
converted to common stock concurrent with the initial public offering).
Substantially all of the remaining $14.2 million continued to be available as of
September 30, 1996 to expand international
9
<PAGE> 12
operations, to acquire complementary businesses and for general corporate
purposes, including working capital.
In September 1996, the Company executed a $20 million credit facility with
NationsBank N.A. (South). The facility permits the Company to borrow up to $20
million on a term loan basis to finance mergers and acquisitions. Alternatively,
the Company, at its option, may utilize up to $10 million as a revolving line of
credit for working capital and employ the remaining $10 million for mergers and
acquisitions. Through the date of this filing, the Company has made no draws
against this credit facility.
During the quarter ended September 30, 1996, the Company achieved an
unusually large proportion of its quarterly revenues in the last month of the
quarter. This resulted from delays in commencing three large domestic audit
engagements which had been anticipated to provide significant revenues during
the quarter. Although the Company was ultimately successful in redeploying its
domestic auditors to overcome the revenue shortfall from these three delayed
engagements, much of the replacement revenue was earned in September 1996 and
served to increase the Company's accounts receivable from $26.7 million at June
30, 1996 to $33.8 million at September 30, 1996. Since the fourth quarter is
typically the Company's highest cash collections quarter of the year, the
Company is hopeful of reducing its accounts receivable levels by December 31,
1996. There can be no assurance, however, that such reduction can be achieved if
cash collections do not follow historical patterns.
Due to rapid growth, the Company has undertaken in 1996 to double the size
of its Atlanta home office to approximately 45,000 square feet. This project was
completed in the third quarter of 1996 and, combined with ongoing
computer-related equipment additions, comprises the majority portion of the
Company's property and equipment additions during the nine months ended
September 30, 1996. The Company currently has no plans for any materially large
capital additions during the fourth quarter of 1996.
FORWARD-LOOKING STATEMENTS
Statements made in this Form 10-Q for the quarter ended September 30, 1996
that state the Company's or management's intentions, hopes, beliefs,
expectations or predictions of the future are forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995. It is
important to note that the Company's actual results could differ materially from
those contained in such forward-looking statements. Additional information
concerning factors that could cause actual results to differ materially from
those in forward-looking statements is contained from time to time in the
Company's SEC filings including the Risk Factors section of the Company's
Prospectus dated March 26, 1996 included in registration statement number
333-1086 on Form S-1. Copies of the Prospectus may be obtained free of charge by
contacting the Company.
10
<PAGE> 13
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<C> <C> <S>
3.1 -- Articles of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to Registrant's March 26, 1996 registration
statement number 333-1086 on Form S-1).
3.2 -- Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to
Registrant's March 26, 1996 registration statement number 333-1086 on
Form S-1).
10.1 -- Loan and Security Agreement by and among NationsBank, N.A. (South) as
Lender, and The Profit Recovery Group International, Inc. as
Borrower, and Certain Affiliates of Borrower, as Guarantors, dated
September 27, 1996.
11.1 -- Statement Re: Computation of pro forma earnings per share.
27.1 -- Financial Data Schedule (for SEC use only).
</TABLE>
(b) Reports on Form 8-K
The Company did not file a report on Form 8-K during the quarter ended
September 30, 1996.
11
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
<TABLE>
<S> <C>
THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC.
Dated: November 12, 1996 By: /s/ DONALD E. ELLIS, JR.
--------------------------------------------
Donald E. Ellis, Jr.
Senior Vice President,
Treasurer and
Chief Financial Officer
(principal financial officer)
Dated: November 12, 1996 By: /s/ JORGE E. CORA
--------------------------------------------
Jorge E. Cora
Vice President -- Finance
(principal accounting officer)
</TABLE>
12
<PAGE> 1
EXHIBIT 10.1
NATIONSBANK
LOAN AND SECURITY AGREEMENT
BY AND AMONG
NATIONSBANK, N.A. (SOUTH)
AS LENDER,
AND
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
AS BORROWER,
AND
CERTAIN AFFILIATES OF BORROWER,
AS GUARANTORS.
______________, 1996
<PAGE> 2
LOAN AND SECURITY AGREEMENT
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. GENERAL DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Account Debtor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Chief Financial Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Combined Debt Service Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Combined Total Liabilities to Net Worth Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Environmental Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
General Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Guaranty Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Permitted Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Permitted Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Permitted Locations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
i
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<TABLE>
<S> <C> <C>
Permitted Purchase Money Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Prime Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Prohibited Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Purchase Money Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Purchase Money Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Reportable Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Revolver Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Revolver Loan Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Revolver Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Solvent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Term Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.2 Accounting and Other Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.3 Certain Matters of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.1 Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Revolver Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.3 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. INTEREST, FEES, AND REPAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1 Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(A) Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(B) Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(C) Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.2 Revolver Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(A) Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(B) Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4. COLLATERAL: GENERAL TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.1 Security Interest in Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.2 Financing Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.3 Insurance of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.4 Protection of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5. PROVISIONS RELATING TO ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.1 Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.2 Records and Schedules of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
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<TABLE>
<S> <C>
5.3 Verification of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.4 Collection of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6. PROVISIONS RELATING TO INVENTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.1 Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.2 Inventory Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7. PROVISIONS RELATING TO EQUIPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1 Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.1 General Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.2 Survival of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9. COVENANTS AND CONTINUING AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.1 Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.2 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.3 Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.1 Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.2 Other Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11. EVENTS OF DEFAULT; RIGHTS AND REMEDIES OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.2 Acceleration of the Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.3 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.4 Remedies Cumulative; No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
12.1 Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
12.2 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.3 Modification of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.4 Reimbursement of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.5 Indulgences Not Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.6 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.8 Cumulative Effect; Conflict of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.9 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.10 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.11 Lender's Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.12 Demand Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.13 Lender's Right to Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.14 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
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12.15 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.16 Marshalling; Payments Set Aside . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.17 Independence of Covenants, Representations and Warranties . . . . . . . . . . . . . . . . . . . . . 31
12.18 Governing Law; Consent to Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.19 General Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.20 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(A) Special Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(B) Reservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Exhibits
- --------
Exhibit A-1 Form of Term Note
Exhibit A-2 Form of Revolver Note
Exhibit A-3 Form of Term Note-Fixed Rate
Exhibit B-1 Borrower's Business Locations
Exhibit B-2 Other Business Locations
Exhibit C-1 Borrower's Corporate Names
Exhibit C-2 Other Corporate Names
Exhibit D Litigation
Exhibit E Form of Compliance Certificate
Exhibit F Other Liens
Exhibit G Existing Indebtedness
Exhibit H Form of Guaranty
</TABLE>
iv
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NATIONSBANK(R)
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT is made as of this ____ day of
_____________________, 1996, by and among NATIONSBANK, N.A. (SOUTH) ("Lender"),
a national bank having an office at 600 Peachtree Street, N.E., Atlanta,
Georgia 30308; THE PROFIT RECOVERY GROUP INTERNATIONAL, INC., a Georgia
corporation ("Borrower"); THE PROFIT RECOVERY GROUP INTERNATIONAL I, INC., a
Georgia corporation ("PRG International"); THE PROFIT RECOVERY GROUP U.K.,
INC., a Georgia corporation ("PRG U.K."); THE PROFIT RECOVERY GROUP ASIA, INC.,
a Georgia corporation ("PRG Asia"); THE PROFIT RECOVERY GROUP CANADA, INC., a
Georgia corporation ("PRG Canada"); THE PROFIT RECOVERY GROUP NEW ZEALAND,
INC., a Georgia corporation ("PRG New Zealand"); THE PROFIT RECOVERY GROUP
NETHERLANDS, INC., a Georgia corporation ("PRG Netherlands"); THE PROFIT
RECOVERY GROUP BELGIUM, INC., a Georgia corporation ("PRG Belgium"); THE PROFIT
RECOVERY GROUP MEXICO, INC., a Georgia corporation ("PRG Mexico") THE PROFIT
RECOVERY GROUP FRANCE, INC., a Georgia corporation ("PRG France"); THE PROFIT
RECOVERY GROUP AUSTRALIA, INC., a Georgia corporation ("PRG Australia"); and
THE PROFIT RECOVERY GROUP GERMANY, INC., a Georgia corporation ("PRG Germany")
(Borrower, PRG International, PRG U.K., PRG Asia, PRG Canada, PRG New Zealand,
PRG Netherlands, PRG Belgium, PRG Mexico, PRG France, PRG Australia and PRG
Germany each a "Loan Party" and, collectively, the "Loan Parties").
RECITALS:
WHEREAS, in order to provide funds for the working capital and general
corporate needs of Borrower, Borrower desires to obtain a revolving line of
credit from Lender for an amount of up to $10,000,000.00 at any time
outstanding, and Lender is willing to make such loan and advances to Borrower
up to such amount upon the terms and conditions set forth herein; and
WHEREAS, in order to provide funds for the Borrower's future
acquisition of companies, Borrower desires to obtain loans from Lender and
advances up to $20,000,000.00 at any time outstanding from Lender, and Lender
is willing to make such loan and such advances to Borrower up to such amount,
upon the terms and conditions set forth herein;
<PAGE> 7
NOW, THEREFORE, in consideration of the agreements contained herein
and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged by each party, Lender, Borrower and the other Loan
parties hereby agree as follows:
SECTION 1. GENERAL DEFINITIONS
1.1 DEFINED TERMS. When used herein, the following terms shall
have the following meanings (terms defined in the singular to have the same
meaning when used in the plural and vice versa):
ACCOUNTS - means all accounts, contract rights, chattel paper,
instruments and documents, whether now owned or hereafter created or
acquired by Loan Party or in which Loan Party now has or hereafter
acquires any interest.
ACCOUNT DEBTOR - means any Person who is or may become
obligated under or on account of an Account.
AFFILIATE - means a Person (other than a Subsidiary): (i)
which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with,
Borrower; (ii) which beneficially owns or holds 5% or more of any
class of the voting Securities of Borrower; or (iii) 5% or more of the
voting Securities (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of which is
beneficially owned or held by Borrower or a Subsidiary of Borrower.
For purposes hereof, "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 the ownership of
voting Securities, by contract or otherwise.
AGREEMENT - means this Loan and Security Agreement, as the
same may be modified or amended from time to time.
BUSINESS DAY - means any day that is not a Saturday, Sunday or
a legal holiday on which banks are authorized or required to be closed
in Atlanta, Georgia.
CHIEF FINANCIAL OFFICER - means Donald E. Ellis, Jr. or such
other senior financial officer of the Loan Parties designated by the
Loan Parties.
CLOSING DATE - means the date on which all of the conditions
precedent in Section 10 are satisfied and the initial Loan is made
hereunder.
CODE - means the Uniform Commercial Code as adopted and in
force in the State of Georgia, as from time to time in effect.
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<PAGE> 8
COLLATERAL - means all of the Property and interests in
Property described in Section 4 hereof, and all other Property and
interests in Property that now or hereafter secure the payment and
performance of any of the Obligations.
COMBINED DEBT SERVICE COVERAGE RATIO - means, for any period
of time, the ratio computed as of the last day of such period of time
of (i) EBITDA to (ii) Debt Service.
COMBINED NET WORTH - means, at any time, the combined (or
consolidated, as appropriate under GAAP) net worth of the Loan
Parties, as determined in accordance with GAAP.
COMBINED TOTAL LIABILITIES TO NET WORTH RATIO - means, for any
period of time, the ratio on the last day of such period of time of
(i) the total Indebtedness of the Loan Parties to (ii) the combined
(or consolidated, as appropriate under GAAP) net worth of the Loan
Parties, as determined in accordance with GAAP.
CURRENT ASSETS - means, as of any date, the combined (or
consolidated, as appropriate under GAAP) current assets of the Loan
Parties which would be properly classified as current assets shown on
a balance sheet as of such date in accordance with GAAP, except that
amounts due from Affiliates and investments in Affiliates shall be
excluded therefrom.
CURRENT LIABILITIES - means, as of any date, the combined (or
consolidated, as appropriate under GAAP) current liabilities of the
Loan Parties which would be properly classified as current liabilities
shown on a balance sheet as of such date in accordance with GAAP,
except that amounts payable to affiliates shall be excluded therefrom.
DEBT SERVICE - means with respect to any period of time, the
sum of all (i) interest expense, (ii) the current maturities of all
long-term Indebtedness for borrowed money or capitalized leases, (iii)
any other principal payments made with respect to Indebtedness for
borrowed money or capitalized leases, whether subordinated or
unsubordinated, (iv) maintenance capital expenditures (which the Loan
Parties estimate will be approximately $1,000,000.00 per year as of
the present date), (v) cash taxes, and (vi) dividends.
DEFAULT - means an event or condition the occurrence of which
would, with the lapse of time or the giving of notice, or both, become
an Event of Default.
DISTRIBUTION - in respect of any corporation means and
includes: (i) the payment of any dividends or other distributions on
capital stock of the corporation, and (ii) the redemption or
acquisition of Securities unless made contemporaneously from the net
proceeds of the sale of Securities; and in respect of any partnership
means any distribution on account of any interest in the partnership.
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<PAGE> 9
DOLLARS - and the sign "$" shall refer to currency of the
United States of America.
EBITDA - means, for any period of calculation, the combined
(or consolidated, as appropriate under GAAP) Net Income of the Loan
Parties for such period, plus (i) Interest Expense during such period,
plus (ii) income tax expense during such period, plus (iii)
amortization and depreciation expense deducted during such period in
calculating Net Income.
ENVIRONMENTAL LAWS - means all federal, state and local laws,
rules, regulations, ordinances, programs, permits, guidances, orders
and consent decrees relating to health, safety and environmental
matters.
ENVIRONMENTAL LIENS - means Liens in favor of a governmental
entity arising under or in connection with any Environmental law.
EQUIPMENT - means all machinery, apparatus, equipment,
fittings, furniture, fixtures, motor vehicles and other tangible
personal Property (other than Inventory) of every kind and description
used in Loan Party's operations or owned by a Loan Party or in which a
Loan Party has an interest, whether now owned or hereafter acquired by
a Loan Party and wherever located, and all parts, accessories and
special tools and all increases and accessions thereto and
substitutions and replacements therefor.
ERISA - means the Employee Retirement Income Security Act of
1974, as amended from time to time, and all rules and regulations from
time to time promulgated thereunder.
EVENT OF DEFAULT - as defined in Section 11.1 of this
Agreement.
FUNDED DEBT - means, as of any date of determination, the
combined (or consolidated, as appropriate under GAAP) Indebtedness for
Money Borrowed for all Loan Parties, including the principal portion
of all capital lease obligations.
GAAP - means generally accepted accounting principles in the
United States of America in effect from time to time.
GENERAL INTANGIBLES - means all general intangibles of a Loan
Party, whether now owned or hereafter created or acquired by a Loan
Party, including, without limitation, all choses in action, causes of
action, corporate or other business records, deposit accounts,
inventions, blueprints, designs, patents, patent applications,
trademarks, trademark applications, trade names, trade secrets,
goodwill, brand names, copyrights, registrations, licenses,
franchises, customer lists, tax refund claims, computer programs,
operational manuals, all claims under guaranties, security interests
or other security held by or granted to a Loan Party to secure payment
of any of the
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<PAGE> 10
Accounts by an Account Debtor, all rights to indemnification and all
other intangible property of every kind and nature (other than
Accounts).
GUARANTOR - means each Loan Party (other than Borrower), and
any other Person who may hereafter guarantee payment or performance of
the whole or any part of the Obligations.
GUARANTY AGREEMENTS - means the Guaranty which is to be
executed by each Guarantor in form and content acceptable to Lender
and by which a Guarantor shall unconditionally guarantee payment of
the Obligations.
INDEBTEDNESS - as applied to a Person means, without
duplication (i) all items which in accordance with GAAP would be
included in determining total liabilities as shown on the liability
side of a balance sheet of such Person as at the date as of which
Indebtedness is to be determined, including, without limitation,
capitalized lease obligations, (ii) all obligations of other Persons
which such Person has guaranteed and (iii) in the case of the Loan
Parties (without duplication), the Obligations.
INTEREST EXPENSE - means, for any period of calculation, the
combined (or consolidated, as appropriate under GAAP) aggregate of all
interest expense paid or accrued by the Loan Parties during such
period, as determined in accordance with GAAP.
INVENTORY - means all of a Loan Party's inventory, whether now
owned or hereafter acquired by a Loan Party, including, but not
limited to, all goods intended for sale or lease by a Loan Party, or
for display or demonstration; all work in process; all raw materials
and other materials and supplies of every nature and description used
or which might be used in connection with the manufacture, printing,
packing, shipping, advertising, selling, leasing or furnishing of such
goods or otherwise used or consumed in a Loan Party's business; and
all documents evidencing and General Intangibles relating to any of
the foregoing.
LIEN - means any interest in Property securing an 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 security interest, security
title or lien arising from a security agreement, mortgage, deed of
trust, deed to secure debt, encumbrance, pledge, conditional sale or
trust receipt or a lease, consignment or bailment for security
purposes.
LOAN DOCUMENTS - means this Agreement, the Other Agreements,
and the Security Documents.
LOANS - means all loans and advances made by Lender pursuant
to this Agreement, including, without limitation, the Term Loan and
all Revolver Loans.
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<PAGE> 11
MONEY BORROWED - means, as applied to Indebtedness, (i)
Indebtedness for borrowed money; (ii) Indebtedness, whether or not in
any such case the same was for borrowed money, (A) which is
represented by notes payable or drafts accepted that evidence
extensions of credit, (B) which constitute obligations evidenced by
bonds, debentures, notes or similar instruments, or (C) upon which
interest charges are customarily paid (other than accounts payable) or
that was issued or assumed as full or partial payment for property;
(iii) Indebtedness that constitutes a capitalized lease obligation;
(iv) Indebtedness under any agreement or obligation to reimburse the
issuer of any letter of credit for amounts paid by the issuer on
account of such letter of credit; and (v) Indebtedness under any
guaranty of obligations that would constitute Indebtedness for Money
Borrowed under clauses (i) through (iii) hereof.
NET INCOME - means, for any period of calculation, the
combined (or consolidated, as appropriate under GAAP) net income or
loss after taxes of the Loan Parties as calculated in accordance with
GAAP.
OBLIGATIONS - means all Loans and all other advances, debts,
liabilities, obligations, covenants and duties owing, arising, due or
payable from Borrower or any Guarantor to Lender of any kind or
nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, whether arising under this Agreement or
any of the Other Agreements or otherwise and whether direct or
indirect (including those acquired by assignment), absolute or
contingent, primary or secondary, due or to become due, now existing
or hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorney's fees and
any other sums chargeable to Borrower or Guarantor under this
Agreement or any of the other Loan Documents.
OTHER AGREEMENTS - means any and all agreements, instruments
and documents (other than this Agreement and the Security Documents)
heretofore, now or hereafter executed by Borrower or any Guarantor in
favor of or delivered to Lender in respect to the transactions
contemplated by this Agreement, including, without limitation, the
Term Notes and the Revolver Note.
PERMITTED DISTRIBUTIONS - means a Distribution made by a Loan
Party which does not result in the Combined Debt Service Coverage
Ratio of the Loan Parties to be less than 1.5 to 1.0 for any fiscal
quarter.
PERMITTED LIENS - means any Lien of a kind specified in
subparagraphs (i) through (viii) of Section 9.2(E) of this Agreement.
PERMITTED LOCATIONS - means the business locations set forth
in Exhibits B-1 and B-2 attached hereto and any other business
locations, notice of which has been given to Lender.
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<PAGE> 12
PERMITTED PURCHASE MONEY INDEBTEDNESS - means Purchase Money
Indebtedness incurred by the Loan Parties which does not, on a
combined (or consolidated, as appropriate under GAAP) basis, exceed
$1,000,000.00 during any fiscal year.
PERSON - means an individual, partnership, corporation, joint
stock company, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
PLAN - means an employee benefit plan now or hereafter
maintained for employees of Borrower that is covered by Title IV of
ERISA.
PRIME RATE - means the rate of interest announced by Lender
from time to time as its prime rate, whether or not Lender actually
charges such rate and whether or not such rate is the lowest rate
charged by Lender; and if the prime rate is discontinued by Lender as
a standard, a comparable reference rate designated by Lender as a
substitute therefor shall be the Prime Rate.
PROHIBITED TRANSACTION - means any transaction set forth in
Section 406 of ERISA or Section 4975 of the Internal Revenue Code of
1986, as amended from time to time.
PROPERTY - means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
PURCHASE MONEY INDEBTEDNESS - means and includes (i)
Indebtedness (other than Obligations) for the payment of all or any
part of the purchase price of any fixed assets, (ii) any Indebtedness
(other than Obligations) incurred at the time or within ten (10) days
prior to or after the acquisition of any fixed assets for the purpose
of financing all or any part of the purchase price thereof, and (iii)
any renewals, extensions or refinancings thereof, but not any
increases in the principal amounts thereof outstanding at the time.
PURCHASE MONEY LIEN - means a Lien upon fixed assets granted
by Borrower to secure Purchase Money Indebtedness, but only if such
Lien shall at all times be limited solely to the fixed assets the
purchase price of which was financed through the incurrence of the
Purchase Money Indebtedness secured by such Lien.
REPORTABLE EVENT - means any of the events set forth in
Section 4043(b) of ERISA.
REVOLVER LOAN - means a Loan made by Lender as provided in
Section 2.2 of this Agreement.
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<PAGE> 13
REVOLVER LOAN PERIOD - means the period from the date of this
Agreement until September 30, 1998.
REVOLVER NOTE - means the Promissory Note to be executed by
Borrower on or about the date of this Agreement, which shall be in the
form of Exhibit A-2 attached hereto, as the same may be modified or
amended from time to time after execution and deliver thereof.
SECURITY - shall have the same meaning as in Section 2(1) of
the Securities Act of 1933, as amended.
SECURITY DOCUMENTS - means the Guaranty Agreements and all
other instruments and agreements now or hereafter securing the whole
or any part of the Obligations.
SOLVENT - as to any Person, such Person (i) owns Property the
fair value of which is greater than the amount required to pay all
such Person's Indebtedness (including contingent debts), (ii) owns
Property the present fair salable value of which is greater than the
amount that will be required to pay the probable liability of such
Person on its existing Indebtedness as such become absolute and
mature, (iii) is able to pay all of its Indebtedness as such
Indebtedness matures, and (iv) has capital sufficient to carry on its
business and transactions and all business and transactions in which
it is about to engage.
SUBSIDIARY - any corporation of which a Person owns, directly
or indirectly through one or more intermediaries, more than fifty
percent (50%) of the voting Securities at the time of determination.
TERM LOAN - the Loan described in Section 2.1 of this
Agreement.
TERM NOTE - means a Promissory Note or Promissory Notes to be
executed by Borrower in connection with a Term Loan, which shall be in
the form of Exhibit A-1 or Exhibit A-3 attached hereto, as applicable,
as the same may be modified or amended from time to time after
execution and deliver thereof.
1.2 ACCOUNTING AND OTHER TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP
consistent with that applied in preparation of the financial statements
referred to in Section 9.1(I), and all financial data delivered to Lender
pursuant to this Agreement shall be prepared in accordance with such
principles, subject to normal year end adjustments. All other terms contained
in this Agreement shall have, when the context so indicates, the meanings
provided for by the Code to the extent the same are used or defined therein.
1.3 CERTAIN MATTERS OF CONSTRUCTION. The terms "herein", "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular section, paragraph or subdivision. Any pronoun
used shall be deemed to cover
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<PAGE> 14
all genders. The section titles, table of contents and list of exhibits appear
as a matter of convenience only and shall not affect the interpretation of this
Agreement. All references to statutes and related regulations shall include any
amendments of same and any successor statutes and regulations. All references
to any instruments or agreements, including, without limitation, references to
any of the Loan Documents, shall include any and all modifications or amendments
thereto and any and all extensions or renewals thereof.
SECTION 2. CREDIT FACILITY
2.1 TERM LOAN. Subject to all of the terms and conditions of this
Agreement, Lender agrees, upon Borrower's request, to advance to Borrower, from
time to time until September 30, 1998, Term Loans in an aggregate principal
amount outstanding at any one time not to exceed $20,000,000.00, the proceeds
of which are to be used by Borrower in connection with future acquisitions. At
the time of each advance under the Term Loan, Borrower shall execute and
deliver to Lender a promissory note in the form of the Term Note attached to
this Agreement, together with all such other documents and instruments as may
be required pursuant to the terms of this Agreement. All advances under the
Term Loan shall be subject to the prior approval of Lender, which approval
shall not be unreasonably withheld, provided that the proposed acquisition and
the proposed amounts to be funded under the Term Loan (i) do not violate any of
the terms or conditions of this Agreement or any of the Loan Documents; (ii)
the acquisition candidate is a company in the same industry as Borrower; and
(iii) on a historical and proforma basis, following such acquisition, Borrower
and all Loan Parties shall remain in compliance with all terms, covenants and
conditions contained in all of the Loan Documents.
2.2 REVOLVER LOANS. Subject to all of the terms and conditions of
this Agreement, Lender agrees, upon Borrower's request, to advance to Borrower,
from time to time during the Revolver Loan Period, Revolver Loans in an
aggregate principal amount outstanding at any one time not to exceed Ten
Million Dollars ($10,000,000.00), which shall be evidenced by and repayable in
accordance with the terms of this Agreement and the Revolver Note. The
proceeds of the Revolver Loans shall be used for Borrower's general working
capital needs to the extent not inconsistent with the provisions of this
Agreement.
2.3 LIMITATIONS.
(A) At no time shall Lender be obligated to advance
amounts under either the Term Loan or the Revolver Loan if, as a result of such
advance, the aggregate principal balance of the Loans would exceed
$20,000,000.00 (subject to permanent reduction at Borrower's election pursuant
to Section 3.2(D) herein).
(B) At no time shall Lender be obligated to advance
amounts under the Revolver Loan unless, at the time of such advance, Loan
Parties have accounts receivable or contracts receivable (billed and unbilled)
net of reserves equal to or greater than two times the amount which would be
outstanding on the Revolver Loan following such advance.
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<PAGE> 15
(C) At all times throughout the term of the Revolver
Loan, the accounts receivable or contracts receivable of Loan Parties (billed
and unbilled) net of reserves shall be equal to or greater than two times the
amount outstanding under the Revolver Loan. If at any time such ratio is not
achieved, Borrower shall reduce the amount outstanding under the Revolver Loan
by an amount necessary to cause such ratio to be achieved.
SECTION 3. INTEREST, FEES, AND REPAYMENT
3.1 TERM LOAN.
(A) INTEREST. Interest shall accrue on the principal
amount of each of the Term Notes at the rates of interest set forth in the Term
Note. Interest shall be calculated on a daily basis (computed on the actual
number of days elapsed over a year of 360 days), commencing on the date of such
Term Note. In no contingency or event whatsoever shall the aggregate of all
amounts deemed interest hereunder and charged or collected pursuant to the
terms of this Agreement or pursuant to the Term Note exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that the Lender has charged or received interest hereunder in excess
of the highest applicable rate, Lender shall promptly refund such excess
interest to Borrower, and such rate shall automatically be reduced to the
maximum rate permitted by such law. Lender agrees that advances made under the
Term Loan may, at Borrower's election, accrue interest at a fixed rate of
interest, instead of the rates of interest set forth in form of the Term Note
attached hereto as Exhibit A-1, throughout the term of the Term Note applicable
to such Advance. The fixed rate of interest will be equal to the cost of funds
of Lender for a 48-month period as determined and announced by Lender at the
time of such advance plus 2.0% per annum. In the event that Borrower elects
that a particular Term Note bear interest at such fixed rate, then the Term
Note shall be in the form attached hereto as Exhibit A-3.
(B) PAYMENT OF PRINCIPAL AND INTEREST. Each advance
under the Term Loan shall be repayable in forty-eight (48) monthly
installments. Payment of such monthly installments shall commence one (1)
month following the date of the Term Note applicable to such advance and shall
continue on the same day of each and every month thereafter until the maturity
date of such Term Note. In the event interest accrues under a Term Note at the
fixed rate of interest described in Section 3.1(A) above, equal monthly
payments of principal and interest shall be due and payable under such Term
Note based upon an amortization of the principal amount of such Term Note at
such fixed rate over a period of forty-eight (48) months. If a Term Note is
accruing interest at any rate other than such fixed rate, the monthly payments
shall consist of all accrued and unpaid interest together with one forty-eighth
(1/48) of the principal amount of such Term Note. All Term Notes shall have a
maturity date of forty-eight (48) months following the date of such Term Note.
(C) PREPAYMENTS. Borrower may not prepay a Term Note in
whole or in part except as herein specifically provided in such Term Note. In
the event of a partial
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prepayment of a Term Note, following the date of such prepayment, monthly
installments shall be due and payable consisting of (i) all accrued and unpaid
interest, and (ii) equal installments of principal based upon an amortization of
the outstanding principal balance of the Note following such prepayment over the
number of monthly installments payable between such date and the maturity date
of the Note. In the case of a Term Note having a fixed rate of interest, the
amount of such monthly installments following a partial prepayment shall be
based upon a re-amortization of the outstanding principal balance of such Term
Note over the remaining number of monthly installments at the fixed rate of
interest provided for in such Term Note.
3.2 REVOLVER LOANS.
(A) INTEREST. Interest shall accrue on the principal
amount of the Revolver Loan at the rates of interest sets forth in the Revolver
Note. Interest shall be calculated on a daily basis (computed on the actual
number of days elapsed over a year of 360 days), commencing on the date hereof.
In no contingency or event whatsoever shall the aggregate of all amounts deemed
interest hereunder and charged or collected pursuant to the terms of this
Agreement or pursuant to the Revolver Note exceed the highest rate permissible
under any law which a court of competent jurisdiction shall, in a final
determination, deem applicable hereto. In the event that such a court
determines that Lender has charged or received interest hereunder in excess of
the highest applicable rate, Lender shall promptly refund such excess interest
to Borrower and such rate shall automatically be reduced to the maximum rate
permitted by such law.
(B) PAYMENT OF PRINCIPAL AND INTEREST. Interest accrued
and unpaid on the Revolver Note shall be payable monthly on the last day of
each calendar month for interest accrued in such month. The entire unpaid
principal balance of the Revolver Note, plus all unpaid and accrued interest
thereon, shall be due and payable on September 30, 1998. Additionally, all
outstanding principal under the Revolver Note must be reduced to zero for a
period of at least 30 consecutive days during each calendar year.
(C) PREPAYMENTS. Payments of principal portions of the
Revolver Note accruing interest at a LIBOR based interest rate option shall be
subject to a prepayment premium as set forth in the terms of the Revolver Note.
3.3 COMMITMENT FEE. Simultaneously with the execution of this
Agreement, Borrower shall pay to Lender an aggregate commitment fee of
$50,000.00 with respect to the Revolver Loan and with respect to the Term Loan,
which has been fully earned, and shall not be subject to rebate except as may
be required by applicable law. Such fee shall compensate Lender for the costs
associated with the origination, structuring, processing, approving and closing
the Revolver Loan and the Term Loan, including, but not limited to,
administrative, out-of-pocket, general overhead and lost opportunity costs, but
not including any expenses for which Borrower has agreed to reimburse Lender
pursuant to any other provisions of this Agreement or any of the other Loan
Documents, such as, by way of example, legal fees and expenses.
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3.4 UNUSED FACILITY FEE. In addition to other fees payable under
the terms and conditions of this Agreement and in addition to principal and
interest under the Revolver Note and each of the Term Notes, Borrower shall pay
to Lender on the first day of April, July, October and January, commencing on
January 1, 1997 and ending October 1, 1998, a fee equal to .25 percent (on a
per annum basis) of the difference between (i) the maximum aggregate amount
which Lender has agreed to advance under the Loans (which, as of the date
hereof, is $20,000,000.00); and (ii) the average daily aggregate outstanding
principal balance under the Loans throughout the fiscal quarter preceding such
payment date. Borrower may, at its option, elect to permanently reduce the
maximum amount which Borrower is entitled to borrow and which Lender is
obligated to advance under the Loans by providing Lender with three business
days' advance written notice of such election and provided that the minimum
amount of such permanent reduction of the Loans is at least $1,000,000.00.
3.5 LATE CHARGE; DEFAULT INTEREST. Borrower shall pay to Lender a
late charge of five percent (5%) of each payment past due for ten (10) days or
more. After the occurrence and during the continuance of any Event of Default,
the principal amount of all Obligations (and, to the extent permitted by
applicable law, all accrued interest thereon) may, if elected by the Lender in
its discretion, bear interest at a rate per annum equal to two percent (2%)
above the otherwise applicable interest rate under Sections 3.1 and 3.2 above
(the "Default Rate"), which rate adjustment shall be effective from the date
notice thereof is given by the Lender to Borrower.
3.6 ALL LOANS TO CONSTITUTE ONE OBLIGATION. All Loans shall
constitute one general obligation of Borrower, and shall be secured by Lender's
security interest in and Lien upon all of the Collateral and by all other
security interests and Liens heretofore, now or at any time or times hereafter
granted by Borrower to Lender.
SECTION 4. COLLATERAL: GENERAL TERMS
4.1 SECURITY INTEREST IN COLLATERAL. To secure the prompt payment
and performance to Lender of the Obligations, each Loan Party hereby grants
(and reaffirms any and all prior grants) to Lender a continuing security
interest in and Lien upon all of the following Property and interests in
Property of such Loan Party, whether now owned or existing or hereafter
created, acquired or arising and wheresoever located:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) General Intangibles;
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(E) All monies and other Property of any kind, now or at
any time or times hereafter, in the possession or under the control of Lender
or a bailee of Lender;
(F) All accessions to, substitutions for and all
replacements, products and cash and non-cash proceeds of (A), (B), (C), (D) and
(E) above, including, without limitation, proceeds of and unearned premiums
with respect to insurance policies insuring any of the Collateral and claims
against any Person for loss of, damage to, or destruction of any or all of the
Collateral; and
(G) All books and records (including, without limitation,
customer lists, credit files, computer programs, printouts, and other computer
materials and records) of such Loan Party pertaining to any of (A), (B), (C),
(D), (E) or (F) above.
4.2 FINANCING STATEMENTS. Each Loan Party agrees to execute the
financing statements provided for by the Code together with any and all other
instruments, assignments or documents and shall take such other action from
time to time as may be required to perfect or to continue the perfection of
Lender's security interest in the Collateral. Unless prohibited by applicable
law, each Loan Party hereby authorizes Lender to execute and file any such
financing statement on its behalf. The parties agree that a carbon,
photographic or other reproduction of this Agreement shall be sufficient as a
financing statement and may be filed in any appropriate office in lieu thereof.
4.3 INSURANCE OF COLLATERAL. Each Loan Party agrees to maintain
and pay for insurance upon all Collateral wherever located, covering casualty,
hazard, public liability and such other risks and in such amounts and with such
insurance companies as shall be reasonably satisfactory to Lender to insure
Lender's interest in the Collateral. Each Loan Party shall deliver
certificates or duplicate originals of such policies to Lender with
satisfactory lender's loss payable endorsements naming Lender loss payee. Each
policy of insurance or endorsement shall contain a clause requiring the insurer
to give not less than thirty (30) days prior written notice to Lender in the
event of cancellation of the policy for any reason whatsoever and a clause that
the interest of Lender shall not be impaired or invalidated by any act or
neglect of either Loan Party or owner of the Property nor by the occupation of
the premises for purposes more hazardous than are permitted by said policy. If
a Loan Party fails to provide and pay for such insurance, Lender may, at such
Loan Party's expense, procure the same, but shall not be required to do so.
4.4 PROTECTION OF COLLATERAL. Each Loan Party shall pay and
discharge when due all claims to and levies and charges upon any of the
Collateral. Lender may, at any time or times hereafter, in its sole
discretion, without waiving or releasing any obligations, liability or duty of
the Loan Parties under this Agreement or the Other Agreements, or any Event of
Default, pay when due, acquire or accept an assignment of any Lien or claim
asserted by any Person against any of the Collateral. All sums paid by Lender
in respect thereof and all costs, fees and expenses, including, without
limitation, attorneys' fees and court costs, which are incurred by Lender on
account thereof, shall be payable, upon demand, by such Loan Party to Lender
together with interest accruing at the Default Rate from the date of demand
until paid and shall
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be secured by the Collateral. Lender shall not be liable or responsible in any
way for the safekeeping of any of the Collateral or for any loss or damage
thereto or for any diminution in the value thereof, or for any act or default
of any warehouseman, carrier, forwarding agency, or other Person whomsoever,
but the same shall be at such Loan Party's sole risk.
SECTION 5. PROVISIONS RELATING TO ACCOUNTS
5.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. With respect to
all Accounts, each Loan Party represents and warrants to Lender that Lender may
rely on all statements and representations made by such Loan Party with respect
to any Account or Accounts. Each Loan Party covenants and agrees that it shall
keep and maintain its books and records related to its Accounts and General
Intangibles at the corporate office located at 2300 Windy Ridge Parkway, Suite
100 North, Atlanta, Georgia 30339-8426.
5.2 RECORDS AND SCHEDULES OF ACCOUNTS. Each Loan Party shall keep
accurate and complete records of its Accounts and all payments and collections
thereon. As soon as possible, but not later than fifteen (15) days after the
end of each month, each Loan Party shall deliver to Lender a listing of all
identifiable, recoverable net claims outstanding by customer, together with the
Loan Party's portion of such claim. Upon written request of Lender, each Loan
Party shall deliver to Lender, in form reasonably acceptable to Lender, a
detailed aged trial balance of all Accounts and contracts receivable, existing
as of the last day of the preceding month, specifying the names, addresses,
face value, dates of invoices and due dates for each Account Debtor or Person
obligated on the Account or a contract receivable so listed.
5.3 VERIFICATION OF ACCOUNTS. Upon the occurrence of a Default,
Lender shall have the right, at any time or times thereafter, in the name of
Lender, any designee of Lender or a Loan Party, to verify the validity, amount
or any other matter relating to any Accounts or contracts receivable by mail,
telephone, telegraph or otherwise. Each Loan Party shall cooperate fully with
Lender in an effort to facilitate and promptly conclude any such verification
process.
5.4 COLLECTION OF ACCOUNTS. Upon the occurrence of an Event of
Default, Lender may notify Account Debtors that Accounts have been assigned to
Lender and to collect Accounts directly in its own name and to charge the
collection costs and expenses, including attorneys' fees to such Loan Party.
Lender has no duty to protect, insure, collect or realize upon the Accounts or
preserve rights in them.
SECTION 6. PROVISIONS RELATING TO INVENTORY
6.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. With respect to
Inventory, each Loan Party represents and warrants to Lender that Lender may
rely on all statements and representations made by such Loan Party with respect
to any Inventory and, unless otherwise
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indicated in writing to Lender, that: all Inventory is presently and will
continue to be located at Permitted Locations and will not be removed therefrom
except as authorized by Section 4.3 of this Agreement; no Inventory is now, nor
shall any Inventory at any time or times hereafter be, stored with a bailee,
warehouseman or similar party without Lender's prior written consent; and no
Inventory is or will be consigned to any Person without Lender's prior written
consent.
6.2 INVENTORY REPORTS. Each Loan Party agrees to furnish Lender
with Inventory reports at such times as Lender may reasonably request. Such
reports shall be in form and detail satisfactory to Lender. If required by
GAAP, each Loan Party shall conduct a physical inventory no less frequently
than annually and shall provide to Lender a report based on each such physical
inventory promptly thereafter, together with such supporting information as
Lender shall reasonably request.
SECTION 7. PROVISIONS RELATING TO EQUIPMENT
7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. With respect to
the Equipment, each Loan Party represents, warrants and covenants to and with
Lender that the Equipment is generally in good operating condition and repair,
and all necessary replacements of and repairs thereto shall be made so that the
value and operating efficiency of the Equipment shall be maintained and
preserved, reasonable wear and tear and damage by insured casualty excepted.
Each Loan Party shall maintain accurate records itemizing and describing the
kind, type, quality, quantity and value of its Equipment, and shall furnish
Lender, upon Lender's request, with a current schedule containing the
foregoing information.
7.2 LOCATION OF EQUIPMENT. At least 80% of the Equipment, on a
net book value basis, will be kept at either the Atlanta, Georgia location or
the Bentonville, Arkansas location of Borrower. In the event Borrower desires
to relocate the Equipment in such a manner that would result in less than 80%
of the Equipment, on a net book value basis, being maintained in either
Atlanta, Georgia or Bentonville, Arkansas, Borrower may relocate such Equipment
provided that Borrower notifies Lender of such relocation and Borrower, or the
appropriate Loan Party, executes and delivers to Lender such UCC Financing
Statements as may be necessary to maintain Lender's perfected first priority
security interest in such Equipment in the locations where 80% or more of the
Equipment, on a net book value basis, is located.
SECTION 8. REPRESENTATIONS AND WARRANTIES
8.1 GENERAL REPRESENTATIONS AND WARRANTIES. To induce Lender to
enter into this Agreement and to make the Term Loan hereunder, each Loan Party,
jointly and severally, warrants, represents and covenants to Lender that:
(A) Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia; has duly
qualified and is authorized to do
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business and is in good standing in all states and jurisdictions where the
character of its Properties or the nature of its activities make such
qualification necessary (except where the failure thereof would not have a
material adverse effect upon such Loan Party, its financial condition or
Property); and has not been known as or used any corporate, fictitious or trade
names except as disclosed on Exhibit C-2 attached hereto and made a part
hereof.
(B) Each Loan Party (other than Borrower) is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Georgia; has duly qualified and is authorized to do
business and is in good standing as a foreign corporation in all states and
jurisdictions where the character of its Properties or the nature of its
activities make such qualification necessary (except where the failure thereof
would not have a material adverse effect upon such Loan Party, its financial
condition or Property); and has not been known as or used any corporate,
fictitious or trade names except as disclosed on Exhibits C-1 and C-2 attached
hereto and made a part hereof.
(C) Each Loan Party has the power and is duly authorized
to enter into, deliver and perform this Agreement and each of the Other
Agreements and each of the Security Documents to which it is a party, and this
Agreement is, each of the Other Agreements, and each of the Security Documents
when delivered under this Agreement will be, a legal, valid and binding
obligation of the respective Loan Party enforceable against it in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
(D) No Loan Party is engaged principally, or as one of
its important activities, in the business of purchasing or carrying "margin
stock" (within the meaning of Regulation G or U of the Board of Governors of
the Federal Reserve System), and no part of the proceeds of any Loans to
Borrower will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying any margin stock, or be
used for any purpose which violates or is inconsistent with the provisions of
Regulation X of said Board of Governors.
(E) Each Loan Party has all governmental consents,
approvals, authorizations, permits, certificates, inspections, and franchises
necessary to conduct its business as heretofore or proposed to be conducted by
it and to own or lease and operate its Properties as now owned or leased by it.
(F) Each Loan Party owns or possesses all the patents,
trademarks, service marks, trade names, copyrights and licenses necessary for
the present and planned future conduct of its business without any known
conflict with the rights of others.
(G) Except as set forth on Exhibit D attached hereto and
made a part hereof, there are no actions, suits, proceedings or investigations
pending, or to the knowledge of the Loan Parties, threatened, against or
affecting either Loan Party or any of its Properties in any
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court or before any governmental authority or arbitration board or tribunal, and
no action, suit, proceeding or investigation shown on Exhibit D involves the
possibility of materially and adversely affecting the Properties or condition
(financial or otherwise) of either Loan Party or the ability of either Loan
Party to perform this Agreement, the Other Agreements, and the Security
Documents or the ability of Guarantor to perform the Loan Documents to which it
is a party.
(H) Each Loan Party has good, indefeasible and marketable
title to and fee simple ownership of, or valid and subsisting leasehold
interests in, all of its Property, in each case, free and clear of all Liens
except Permitted Liens.
(I) The balance sheets of the Loan Parties as of June 30,
1996 previously delivered to Lender, and the related statements of profit and
loss for the periods ended on such dates, have been prepared in accordance with
GAAP, and present fairly the financial positions of the Loan Parties at such
dates and the results of the Loan Parties' operations for such periods. Since
June 30, 1996, there has been no material change in the condition, financial or
otherwise, of any of the Loan Parties as shown on the balance sheet as of such
date and no change in the aggregate value of Property owned by any of the Loan
Parties, except changes in the ordinary course of business, none of which
individually or in the aggregate has been materially adverse.
(J) There is no fact which any Loan Party has failed to
disclose to Lender in writing which materially affects adversely or will
materially affect adversely the Properties, business, prospects, profits, or
condition (financial or otherwise) of Borrower or the ability of any Loan Party
to perform its respective obligations under the Loan Documents.
(K) No Loan Party has received any notice to the effect
that it is not in full compliance with any of the requirements of ERISA and the
regulations promulgated thereunder in connection with any Plan. No fact or
situation, including, but not limited to, any Reportable Event, or Prohibited
Transaction exists in connection with any Plan.
(L) Each Loan Party has filed all federal, state and
local tax returns and other reports it is required by law to file (except where
failure to file will not have a material adverse effect upon such Loan Party,
its financial condition or property) and has paid, or made provision for the
payment of, all taxes, assessments, fees and other government charges that are
due and payable, except and to the extent that such taxes, assessments, fees
and other government charges are being actively contested in good faith and by
appropriate proceedings.
(M) Each Loan Party has duly complied with, and its
Properties, business operations and leaseholds are in compliance in all
material respects with, the provisions of all federal, state and local laws,
rules and regulations applicable to such Loan Party, its Properties or the
conduct of its business, including, without limitation, all Environmental Laws.
(N) No Default or Event of Default exists or will exist
or result from the execution and delivery of the Loan Documents or performance
thereunder.
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8.2 SURVIVAL OF REPRESENTATIONS. Each Loan Party covenants,
warrants and represents to Lender that all representations and warranties
contained in this Agreement or any of the Loan Documents shall be true at the
time of execution of this Agreement and the Loan Documents, and shall survive
the execution, delivery and acceptance thereof by Lender and the parties
thereto and the closing of the transactions described therein or related
thereto.
SECTION 9. COVENANTS AND CONTINUING AGREEMENTS
9.1 AFFIRMATIVE COVENANTS. During the term of this Agreement, and
thereafter for so long as there are any Obligations to Lender, each Loan Party
covenants that, unless otherwise consented to by Lender in writing, it shall:
(A) Pay and discharge all taxes, assessments and
governmental charges upon it, its income and Properties as and when such taxes,
assessments and charges are due and payable, except and to the extent only
that such taxes, assessments and charges are being actively contested in good
faith and by appropriate proceedings, such Loan Party gives Lender prompt
written notice of such contest, maintains adequate reserves on its books
therefor and the nonpayment of such taxes does not result in a Lien upon any of
its Properties other than a Permitted Lien.
(B) File all federal, state and local tax returns and other
reports such Loan Party is required by law to file and maintain adequate
reserves for the payment of all taxes, assessments, governmental charges, and
levies imposed upon it, its income, or its profits, or upon any Property
belonging to it.
(C) Preserve and maintain its separate corporate or
partnership existence, as the case may be, and all rights, privileges, and
franchises in connection therewith, and maintain its qualification and good
standing in all states in which such qualification is necessary.
(D) Maintain its Properties in good condition and make all
necessary renewals, repairs, replacements, additions and improvements thereto.
(E) Comply with all laws, ordinances, governmental rules
and regulations to which it is subject, including, without limitation, all
Environmental Laws, and obtain and keep in force any and all licenses, permits,
franchises, or other governmental authorizations necessary to the ownership of
its Properties or to the conduct of its business.
(F) (i) At all times make prompt payment of contributions
required to meet the minimum funding standards set forth in ERISA with respect
to each Plan; (ii) promptly after the filing thereof, furnish to Lender copies
of any annual report required to be filed pursuant to ERISA in connection with
each Plan and any other employee benefit plan of it and its Affiliates subject
to ERISA; (iii) notify Lender as soon as practicable of any Reportable Event
and of any additional act or condition arising in connection with any Plan
which such
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Loan Party believes might constitute grounds for the termination thereof by the
Pension Benefit Guaranty Corporation or for the appointment by the appropriate
United States district court of a trustee to administer the Plan; and (iv)
furnish to Lender, promptly upon Lender's request therefor, such additional
information concerning any Plan or any other such employee benefit plan as may
be reasonably requested.
(G) Keep adequate records and books of account with
respect to its business activities in which proper entries are made in
accordance with GAAP reflecting all its financial transactions.
(H) Permit representatives of Lender, from time to time,
as may be reasonably requested, but only during normal business hours and upon
reasonable notice, to visit and inspect its Properties, inspect and make
extracts from its books and records, and discuss with its officers, its
employees and its independent accountants, such Loan Party's business, assets,
liabilities, financial condition, business prospects and results of operations.
(I) Cause to be prepared and furnished to Lender the
following (all to be kept and prepared in accordance with GAAP applied on a
consistent basis): (i) as soon as possible, but not later than ninety (90) days
after the close of each fiscal year combined (or consolidated, as
appropriate under GAAP) financial statements of the Loan Parties as of the end
of such year audited by a firm of independent certified public accountants of
recognized standing or otherwise acceptable to Lender (which includes, without
limitation, KPMG Peat Marwick) including without limitation statements of
financial condition, income, cash flows and changes in shareholders equity;
(ii) as soon as possible, but not later than forty-five (45) days of the end of
each fiscal quarter, internally prepared consolidated financial statements of
the Loan Parties, including without limitation, a balance sheet and income
statement; and (iii) as soon as possible, but no later than thirty (30) days
after the end of each month hereafter, a consolidated report of billed and
unbilled accounts receivable and contracts receivable (net of reserves) for all
Loan Parties in form satisfactory to Lender.
(J) At Lender's request, promptly execute or cause to be
executed and deliver to Lender any and all documents, instruments and
agreements deemed necessary by Lender to perfect or to continue the
perfection of Lender's Liens, to facilitate collection of the Collateral or
otherwise to give effect to or carry out the terms or intent of this Agreement
or any of the Other Agreements.
(K) Within forty-five (45) days of the end of each fiscal
quarter, the Loan Parties shall prepare and deliver to Lender a
Compliance Certificate in the form of Exhibit E attached hereto, with
appropriate insertions.
(L) Maintain its primary domestic deposit accounts with
Lender.
(M) Provide Lender with copies of all 10-K and 10-Q
filings and if requested, all federal and state tax returns of the Borrower
and the Guarantors promptly upon the filing of same.
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9.2 NEGATIVE COVENANTS. During the term of this Agreement, and
thereafter for so long as there are any Obligations to Lender, each Loan Party
covenants that, unless Lender has first consented thereto in writing, it will
not:
(A) Merge or consolidate with any Person provided, that,
(i) a Loan Party may merge with another Loan Party upon thirty (30) days
advance notice to the Lender so long as such merger does not have an adverse
effect upon the Lender's Lien in the Collateral or the prospects of repayment
of the Obligations; and (ii) in connection with an acquisition of a company,
such company may be merged or consolidated into a Loan Party upon thirty (30)
days' advance notice to Lender and provided all other covenants and agreements
set forth in this Agreement regarding the acquisition of such company are met.
(B) Make any loans or other advances of money (other than
(i) for salary, travel advances, advances against commissions and other similar
advances, and (ii) loans and other advances which, in the aggregate under this
subparagraph (ii), do not exceed $250,000 in the ordinary course of business).
(C) Enter into any transaction with any Affiliate or
stockholder, except in the ordinary course of and pursuant to the reasonable
requirements of such Loan Party's business and upon fair and reasonable terms
which are fully disclosed to Lender and which are no less favorable to such
Loan Party than would obtain in a comparable arm's length transaction with a
Person not an Affiliate or stockholder of such Loan Party.
(D) Guarantee, assume, endorse or otherwise, in any way,
become directly or contingently liable with respect to the Indebtedness of any
Person except by endorsement of instruments or items of payment for deposit or
collection.
(E) Create or suffer to exist any Lien upon any of its
Property, income or profits, whether now owned or hereafter acquired, except
(i) Liens at any time granted in favor of Lender; (ii) Liens for taxes
(excluding any Lien imposed pursuant to any of the provisions of ERISA) not yet
due or being contested as permitted by Section 9.1(A) hereof, but only if in
Lender's judgment such Liens do not affect adversely Lender's rights or the
priority of Lender's Lien in the Collateral; (iii) Liens securing the claims or
demands of materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons for labor, materials, supplies or rentals incurred in the ordinary
course of such Loan Party's business, but only if the payment thereof is not at
the time required and only if such Liens are junior to the Liens in favor of
Lender or any such Liens actively contested in good faith and by appropriate
legal proceedings; (iv) Liens resulting from deposits made in the ordinary
course of business in connection with workmens compensation, unemployment
insurance, social security and other like laws; (v) attachment, judgment and
other similar non-tax Liens (excluding Environmental Liens) arising in
connection with court proceedings, but only if and for so long as the execution
or other enforcement of such Liens is and continues to be effectively stayed
and bonded on appeal in a manner satisfactory to Lender for the full amount
thereof, the validity and amount of the claims secured thereby are being
actively contested in good faith and by appropriate lawful proceedings and such
Liens do not, in the aggregate,
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materially detract from the value of the Property of such Loan Party or
materially impair the use thereof in the operation of such Loan Party's
business; (vi) Purchase Money Liens to secure Indebtedness that is not incurred
in violation of this Agreement; (vii) reservations, exceptions, easements,
rights of way, and other similar encumbrances affecting real Property, provided
that, in Lender's sole judgment, they do not in the aggregate materially detract
from the value of said Properties or materially interfere with their use in the
ordinary conduct of such Loan Party's business and, if said real Property
constitutes Collateral, Lender has consented thereto; and (viii) Liens set forth
on Exhibit F.
(F) Declare or make hereafter any Distributions, nor
hereafter issue new capital stock; provided, that, the Loan Parties may
establish a stock option plan or plans for the management and employees of the
Loan Parties and issue options and capital stock pursuant to such plan
or plans and may issue new capital stock in connection with an acquisition of a
company other than an Affiliate, so long as such company is engaged in a
similar business to that currently operated by Borrower.
(G) Hereafter create any Subsidiary or divest itself of any
material assets by transferring them to any Subsidiary unless Lender has been
notified in writing of the creation of such Subsidiary or transfer of assets and
such Subsidiary has executed and delivered to Lender a guaranty of all
obligations of Borrower to Lender in the form of Exhibit H hereto, a security
agreement granting Lender a security interest in such of the assets of such
Subsidiary as would constitute Collateral under this Agreement and such UCC
Financing Statements as Lender requires to perfect such security interest.
(H) Transfer its principal place of business or chief
executive office, or open new places of business, or maintain warehouses or
records with respect to Accounts or Inventory, to or at any locations other
than those at which the same are presently kept or maintained, as set forth on
Exhibits B-1 and B-2 hereto, except upon at least sixty (60) days prior written
notice to Lender and after the delivery to Lender of financing statements, if
required by Lender, in form satisfactory to Lender to perfect or continue the
perfection of Lender's Lien and security interest hereunder.
(I) Enter into any new business which is unrelated to its
business as of the date of this Agreement.
(J) Use any name (other than its own) or any fictitious
name, tradestyle or "d/b/a" except for names disclosed in writing to Lender on
or before the Closing Date or upon at least thirty (30) days prior written
notice to Lender.
(K) Own, purchase or acquire (or enter into any contract to
purchase or acquire) any "margin security" as defined by any regulation of the
Federal Reserve Board as now in effect or as the same may hereafter be in
effect unless, prior to any such purchase or acquisition or entering into any
such contract, Lender shall have received an opinion of counsel satisfactory to
Lender to the effect that such purchase or acquisition will not cause this
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Agreement to violate Regulations G or U or any other regulation of the Federal
Reserve Board then in effect.
(L) Change its fiscal year.
(M) Create, incur, assume or suffer to exist, incur or
suffer to exist, any Indebtedness except: (i) Obligations owing to Lender;
(ii) unsecured accounts payable to trade creditors which are not aged more than
one hundred twenty (120) days from billing date and current operating expenses
which are not more than sixty (60) days past due, in each case incurred in the
ordinary course of business and paid within such time period, unless the same
are actively being contested in good faith and by appropriate and lawful
proceedings; (iii) Permitted Purchase Money Indebtedness; (iv) contingent
liabilities arising out of endorsements of checks and other negotiable
instruments for deposit; (v) Indebtedness set forth on Exhibit G attached
hereto; and (vi) Indebtedness not included in paragraphs (i) through (v) above
which does not exceed at any time, in the aggregate, the sum of $250,000.00.
9.3 FINANCIAL COVENANTS. During the term of this Agreement, and
thereafter for so long as there are any Obligations to Lender, Borrower
covenants that, unless otherwise consented to by Lender in writing, the Loan
Parties on a consolidated basis shall:
(A) Maintain a Combined Total Liabilities to Net Worth
Ratio equal to or less than 1.5 to 1.0 as of the end of each fiscal quarter;
(B) Maintain a ratio of Funded Debt to EBITDA equal to or
less than 2.0 to 1.0 measured as of the end of each fiscal quarter for the
period consisting of such fiscal quarter together with the preceding three
fiscal quarters;
(C) Maintain a Combined Debt Service Coverage Ratio of at
least 1.5 to 1.0 measured as of the end of each fiscal quarter for the period
consisting of such fiscal quarter together with the preceding three fiscal
quarters;
(D) Maintain a Combined Net Worth of at least
$34,000,000.00 at any time; and
(E) Maintain a ratio of Current Assets to Current
Liabilities of at least 1.0 to 1.0 at any time.
SECTION 10. CONDITIONS PRECEDENT
Notwithstanding any other provision of this Agreement or any of the
Other Agreements, and without affecting in any manner the rights of Lender
under the other Sections of this Agreement, it is understood and agreed that
this Agreement shall not be effective unless
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and until each of the following conditions has been and continues to be
satisfied, all in form and substance satisfactory to Lender and its counsel:
10.1 DOCUMENTATION. Lender shall have received the following
documents, each to be in form and substance satisfactory to Lender and its
counsel:
(A) A certificate regarding the Loan Parties' casualty
insurance policies evidencing Lender as loss payee and the Loan Parties'
liability insurance policies naming Lender as a co-insured;
(B) Copies of all filing receipts or acknowledgments
issued by any governmental authority to evidence any filing or recordation
necessary to perfect the Liens of Lender in the Collateral and evidence in a
form acceptable to Lender that such Liens constitute valid and perfected
priority security interests and Liens subject only to the Liens set forth on
Exhibit F hereto;
(C) A copy of the Articles or Certificate of Incorporation
of each Loan Party, and all amendments thereto;
(D) Good standing certificates for each Loan Party, issued
by the Secretary of State or other appropriate official of the jurisdiction of
incorporation;
(E) A closing certificate signed by officers of the Loan
Parties dated as of the date hereof, stating that (i) the representations and
warranties set forth in Section 8 hereof are true and correct on and as of such
date, (ii) the Loan Parties are on such date in compliance with all the terms
and provisions set forth in this Agreement and (iii) on such date no Default or
Event of Default has occurred or is continuing;
(F) The Other Agreements duly executed and delivered by
the Loan Parties;
(G) The Security Documents duly executed, accepted and
acknowledged by or on behalf of each of the signatories thereto;
(H) The favorable, written opinion of Tony G. Mills,
counsel to the Borrower and the Guarantors to be in form and content acceptable
to Lender and its counsel; and
(I) Such other documents, instruments and agreements as
Lender shall reasonably request in connection with the foregoing matters.
10.2 OTHER CONDITIONS. The following conditions have been and
shall continue to be satisfied, in the sole discretion of Lender:
(A) No Default or Event of Default shall exist;
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(B) Each of the conditions precedent set forth in the
Other Agreements and the Security Documents shall have been satisfied;
(C) Since June 30, 1996, there shall not have occurred
any material adverse change in the business, financial condition or results of
operations of any Loan Party, or the existence or value of any Collateral, or
any event, condition or state of facts which would reasonably be expected
materially and adversely to affect the business, financial condition or results
of operations of any Loan Party; and
(D) No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any
court, governmental agency or legislative body to enjoin, restrain or prohibit,
or to obtain damages from any Person in respect of, the consummation of the
transactions contemplated hereby or which, in Lender's sole discretion, would
make it inadvisable to consummate the transactions contemplated by this
Agreement or any of the other Loan Documents.
SECTION 11. EVENTS OF DEFAULT; RIGHTS AND REMEDIES OF DEFAULT
11.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following events or conditions shall constitute an "Event of Default":
Borrower or any Guarantor shall fail to pay any of the Obligations on the due
date thereof and such failure shall continue for more than ten (10) days after
the receipt by Borrower of notice of such failure from Lender; any warranty,
representation, or other statement made or furnished to Lender by or on behalf
of Borrower or any Guarantor or in any instrument, certificate or financial
statement furnished in compliance with or in reference to this Agreement or any
of the other Loan Documents proves to have been false or misleading in any
material respect when made or furnished and such default shall continue for
more than thirty (30) days after the receipt by Borrower of notice of such
default from Lender (provided Lender shall have no obligation to advance any
funds for the Loans during such 30-day period); Borrower or any Guarantor
shall fail or neglect to perform, keep or observe (i) any covenant contained in
Sections 4.2, 4.3, 4.3, 4.4, 9.1, 9.2 or 9.3 of this Agreement or (ii) any
other covenant contained in this Agreement (other than a covenant a default in
the performance or observance of which is dealt with specifically elsewhere in
this Section 11.1) and the breach of such other covenant is not cured to
Lender's satisfaction within thirty (30) days after receipt by Borrower or any
Guarantor of notice of such breach from Lender; any event of default shall
occur under, or Borrower or any Guarantor shall default in the performance or
observance of any term, covenant, condition or agreement contained in, any of
the Other Agreements or the Security Documents and such default shall continue
beyond any applicable period of grace; there shall occur any default or event
of default on the part of Borrower or any Guarantor under any agreement,
document or instrument to which Borrower or any Guarantor is a party or by
which Borrower or any Guarantor or any of its Property is bound, creating or
relating to any Indebtedness (in an amount in excess of $500,000.00) if the
payment or maturity of such Indebtedness is accelerated in consequence of such
event of default or demand for payment of such Indebtedness is made; (F) sale,
lease or encumbrance of any of the Collateral or the making of
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any levy, seizure, or attachment thereof or thereon except in all cases as may
be specifically permitted by other provisions of this Agreement; (G) Borrower
or any Guarantor shall cease to be Solvent or shall suffer the appointment of a
receiver, trustee, custodian or similar fiduciary, or shall make an assignment
for the benefit of creditors, or any petition for an order for relief shall be
filed by or against Borrower or any Guarantor under the Bankruptcy Code (if
against Borrower or any Guarantor, the continuation of such proceeding for more
than thirty (30) days), or Borrower or any Guarantor shall make any offer of
settlement, extension or composition to their respective unsecured creditors
generally, or any motion, complaint or other pleading is filed in any
bankruptcy case of any Person other than Borrower and such motion, complaint or
pleading seeks the consolidation of Borrower's assets and liabilities with the
assets and liabilities of such Person; (H) a Reportable Event shall occur which
Lender, in its sole discretion, shall determine in good faith constitutes
grounds for the termination by the Pension Benefit Guaranty Corporation of any
Plan or for the appointment by the appropriate United States District Court of
a trustee for any Plan, or if any Plan shall be terminated or any such trustee
shall be requested or appointed; or (I) any Guarantor shall revoke or attempt
to revoke the Guaranty Agreement signed by such Guarantor, or shall repudiate
its liability thereunder.
11.2 ACCELERATION OF THE OBLIGATIONS. Upon or at any time after
the occurrence of an Event of Default, all or any portion of the Obligations
due or to become due to Lender, whether under this Agreement, the Term Notes,
the Revolver Note, any of the Other Agreements or otherwise, shall, at the
option of Lender and without notice or demand by Lender except as may be
expressly required herein, become at once due and payable and Borrower shall
forthwith pay to Lender, in addition to any and all sums and charges due, the
entire principal of and interest accrued on the Obligations plus reasonable
attorneys fees actually incurred by Lender if collected by or through an
attorney at law.
11.3 REMEDIES. Upon or at any time after the occurrence of an
Event of Default, Lender shall have and may exercise from time to time the
following rights and remedies:
(A) All of the rights and remedies of a secured party
under the Code or under other applicable law, and all other legal and equitable
rights to which Lender may be entitled, all of which rights and remedies shall
be cumulative, and none of which shall be exclusive, and shall be in addition
to any other rights or remedies contained in this Agreement or any of the other
Loan Documents.
(B) The right to notify all Account Debtors to make
remittances to Lender of all sums due on Accounts and to collect the Accounts
directly from the Account Debtors.
(C) The right to take immediate possession of the
Collateral, and (i) to require the Loan Parties to assemble the Collateral, at
their expense, and make it available to Lender at a place designated by Lender
which is reasonably convenient to both parties, and (ii) to enter any of the
premises of the Loan Parties or wherever any of the Collateral shall be
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located, and to keep and store the same on said premises until sold (and if
said premises be the Property of any Loan Party, such Loan Party agrees not to
charge Lender for storage thereof).
(D) The right to sell or otherwise dispose of all or any
Collateral, at public or private sale or sales, with such notice as may be
required by law, in lots or in bulk, for cash or on credit, all as Lender, in
its sole discretion, may deem advisable. The Loan Parties agree that ten (10)
days written notice of any public or private sale or other disposition of such
Collateral shall be reasonable notice thereof; provided, however, that no
notice of Lender's intended disposition of Collateral shall be required with
respect to any portion of the Collateral that is perishable, threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, nor shall any such notice be required hereunder if not otherwise
required under applicable law, and such sale shall be at such locations as
Lender may designate in said notice. Lender shall have the right to conduct
such sales on the Loan Parties' premises, without charge therefor, and such
sales may be adjourned from time to time in accordance with applicable law.
Lender shall have the right to sell, lease or otherwise dispose of such
Collateral, or any part thereof, for cash, credit or any combination thereof,
and Lender may purchase all or any part of such Collateral at public or, if
permitted by law, private sale and, in lieu of actual payment of such purchase
price, may set off the amount of such price against the Obligations.
(E) The right at any time or times, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, or provisional or final) at any time held and other
indebtedness at any time owing by Lender to or for the credit or the account of
Borrower or any Guarantor against any and all of the Obligations, irrespective
of whether or not Lender shall have made any demand therefor.
(F) Lender is hereby granted a license or other right to
use, without charge, Borrower's and each Loan Party's labels, patents,
copyrights, rights of use of any name, trade secrets, tradenames, trademarks
and advertising matter, or any Property of a similar nature, as it pertains to
the Collateral, in advertising for sale and selling any Collateral and
Borrower's and each Loan Party's rights under all licenses and all franchise
agreements shall inure to Lender's benefit.
(G) The proceeds realized from the sale of any Collateral
may be applied, after allowing two (2) Business Days for collection, first to
the reasonable costs, expenses and attorneys' fees and expenses incurred by
Lender for collection and for acquisition, completion, protection, removal,
storage, sale and delivery of the Collateral; secondly, to interest due upon
any of the Obligations; and thirdly, to the principal of the Obligations. If
any deficiency shall arise, Borrower and each Guarantor shall remain jointly
and severally liable to Lender therefor.
11.4 REMEDIES CUMULATIVE; NO WAIVER. All covenants, conditions,
provisions, warranties, guaranties, indemnities, and other undertakings of the
Loan Parties contained in this Agreement and the other Loan Documents, or in
any document referred to herein or contained in any agreement supplementary
hereto or in any schedule given to Lender or
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contained in any other agreement between Lender and the Loan Parties,
heretofore, concurrently, or hereafter entered into, shall be deemed cumulative
to and not in derogation or substitution of any of the terms, covenants,
conditions, or agreements of the Loan Parties herein contained. The failure or
delay of Lender to exercise or enforce any rights, Liens, powers, or remedies
hereunder or under any of the aforesaid agreements or other documents or
security or Collateral shall not operate as a waiver of such Liens, rights,
powers and remedies, but all such Liens, rights, powers, and remedies shall
continue in full force and effect until all Loans and all other Obligations
owing or to become owing from the Loan Parties to Lender shall have been fully
satisfied, and all Liens, rights, powers, and remedies herein provided for are
cumulative and none is exclusive.
SECTION 12. MISCELLANEOUS
12.1 POWER OF ATTORNEY. Each Loan Party hereby irrevocably
designates, makes, constitutes and appoints Lender (and all Persons designated
by Lender) as its true and lawful attorney (and agent-in-fact) and Lender, or
Lender's agent, may, without notice to such Loan Party and in either Loan
Party's or Lender's name, but at the cost and expense of such Loan Party:
(A) At such time or times upon or after the occurrence of
an Event of Default as Lender or said agent, in its sole discretion, may
determine, endorse Loan Party's name on any checks, notes, acceptances, drafts,
money orders or any other evidence of payment or proceeds of the Collateral
which come into the possession of Lender or under Lender's control; and
(B) At such time or times upon or after the occurrence of
an Event of Default as Lender or its agent in its sole discretion may determine
(i) enforce payment of the Accounts by legal proceedings or otherwise and
exercise generally all of Loan Party's rights and remedies with respect to the
collection of the Accounts; (ii) settle, adjust, compromise, discharge or
release any of the Accounts or other Collateral or any legal proceedings
brought to collect any of the Accounts or other Collateral; (iii) prepare, file
and sign Loan Party's name to a proof of claim in bankruptcy or similar
document against any Account Debtor or to any notice of lien, assignment or
satisfaction of lien or similar document in connection with any of the
Collateral; (iv) receive, open and dispose of all mail addressed to such Loan
Party and to notify postal authorities to change the address for delivery
thereof to such address as Lender may designate; (v) endorse the name of such
Loan Party upon any of the items of payment or proceeds relating to any
Collateral and deposit the same to the account of Lender on account of the
Obligations; (vi) endorse the name of such Loan Party upon any chattel paper,
document, instrument, invoice, freight bill, bill of lading or similar document
or agreement relating to the Accounts, Inventory and any other Collateral;
(vii) use such Loan Party's stationery and sign the name of such Loan Party to
verifications of the Accounts and notices thereof to Account Debtors; (viii)
make and adjust claims under policies of insurance; and (ix) do all other acts
and things necessary, in Lender's determination, to fulfill Loan Party's
obligations under this Agreement.
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12.2 INDEMNITY. Each Loan Party hereby agrees to indemnify Lender
and hold Lender harmless from and against any liability, loss, damage, suit,
action or proceeding ever suffered or incurred by Lender as the result of such
Loan Party's failure to observe, perform or discharge Loan Party's duties
hereunder, unless resulting from the gross negligence of Lender. Without
limiting the generality of the foregoing, this indemnity shall extend to any
claims asserted against Lender by any Person under any Environmental Laws. The
obligation of the Loan Parties under this Section 12.2 shall survive the
payment in full of the Obligations and the termination of this Agreement.
12.3 MODIFICATION OF AGREEMENT. This Agreement may not be
modified, altered or amended, except by an agreement in writing signed by
Borrower, the other Loan Parties and Lender. No Loan Party may sell, assign or
transfer any interest in this Agreement or any of the other Loan Documents, or
any portion thereof, including, without limitation, the Loan Party's rights,
title, interests, remedies, powers, and duties hereunder or thereunder.
12.4 REIMBURSEMENT OF EXPENSES. If, at any time or times prior or
subsequent to the date hereof, regardless of whether or not an Event of Default
then exists or any of the transactions contemplated hereunder are concluded,
Lender employs counsel for advice or other representation, or incurs legal
expenses or other costs or out-of-pocket expenses in connection with: (A) the
negotiation and preparation of this Agreement or any of the other Loan
Documents, or any amendment of or modification of this Agreement or any of the
other Loan Documents (provided however that the Loan Parties' obligation to
reimburse Lender for legal fees in connection with the negotiation and
preparation of the Loan Documents and the closing thereof shall not exceed
$12,000.00); the administration of this Agreement or any of the other Loan
Documents and the transactions contemplated hereby and thereby; any
litigation, contest, dispute, suit, proceeding or action (whether instituted by
Lender, Borrower, Loan Party or any other Person) in any way relating to the
Collateral, this Agreement or any of the other Loan Documents or Borrower's or
any Guarantor's affairs; any attempt to enforce any rights or remedies of
Lender against Borrower, any Guarantor or any other Person which may be
obligated to Lender by virtue of this Agreement or any of the other Loan
Documents, including, without limitation, the Account Debtors; or any attempt
to inspect, verify, protect, preserve, restore, collect, sell, liquidate or
otherwise dispose of or realize upon the Collateral; then, in any such event,
the reasonable attorneys' fees actually incurred arising from such services and
all expenses, costs, charges and other fees of such counsel or of Lender or
relating to any of the events or actions described in this Section shall be
payable, ON DEMAND, by the Loan Parties to Lender and shall be additional
Obligations hereunder secured by the Collateral. Additionally, if any taxes
(excluding taxes imposed upon or measured by the net income of Lender) shall be
payable on account of the execution or delivery of this Agreement, or the
execution, delivery, issuance or recording of any of the other Loan Documents,
or the creation of any of the Obligations hereunder, by reason of any existing
or hereafter enacted federal or state statute, Borrower will pay all such
taxes, including, but not limited to, any interest and penalties thereon, and
will indemnify and hold Lender harmless from and against liability in
connection therewith. Notwithstanding the foregoing, prior to an Event of
Default Lender shall provide Borrower with written notice of
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Lender's intent to expend funds in excess of $500.00 which are reimbursable by
Borrower under this Section 12.4 prior to Lender's actual expenditure of such
funds.
12.5 INDULGENCES NOT WAIVERS. Lender's failure, at any time or
times hereafter, to require strict performance by Borrower or any Guarantor of
any provision of this Agreement shall not waive, affect or diminish any right
of Lender thereafter to demand strict compliance and performance therewith.
Any suspension or waiver by Lender of an Event of Default by Borrower or any
Guarantor under this Agreement or any of the other Loan Documents shall not
suspend, waive or affect any other Event of Default by Borrower or any
Guarantor under this Agreement or any of the other Loan Documents, whether the
same is prior or subsequent thereto and whether of the same or of a different
type. None of the undertakings, agreements, warranties, covenants and
representations of Borrower or any Guarantor contained in this Agreement or any
of the other Loan Documents and no Event of Default by Borrower or any
Guarantor under this Agreement or any of the other Loan Documents shall be
deemed to have been suspended or waived by Lender, unless such suspension or
waiver is by an instrument in writing specifying such suspension or waiver and
is signed by a duly authorized representative of Lender and directed to
Borrower or any Guarantor.
12.6 SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
12.7 SUCCESSORS AND ASSIGNS. This Agreement and the other Loan
Documents shall be binding upon and inure to the benefit of the successors and
assigns of Borrower, the Guarantors and Lender. This provision, however, shall
not be deemed to modify Section 12.3 hereof.
12.8 CUMULATIVE EFFECT; CONFLICT OF TERMS. The provisions of the
Other Agreements and the Security Documents are hereby made cumulative with the
provisions of this Agreement. If any provision contained in this Agreement is
in direct conflict with, or inconsistent with, any provision in any of the
Other Agreements or the Security Documents, the provision contained in this
Agreement shall govern and control.
12.9 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which counterparts taken together shall constitute
but one and the same instrument. In proving this Agreement in any judicial
proceeding, it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom such enforcement is sought.
12.10 NOTICE. Except as otherwise provided herein, all notices,
requests and demands to or upon a party hereto shall be in writing and shall be
sent by certified or registered mail, return receipt requested, personal
delivery against receipt or by telecopier or other facsimile
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transmission and, unless otherwise expressly provided herein, shall be deemed
to have been validly served, given or delivered when delivered against receipt
or three (3) Business Days after deposit in the mail, postage prepaid, or, in
the case of facsimile transmission, when received at the office of the noticed
party, addressed as follows:
If to Lender: NationsBank, N.A. (South)
600 Peachtree Street, N.E., 19th Floor
Atlanta, Georgia 30308
Attention: Mr. Gary L. Young, Senior Vice President
Telecopier No.: (404) 607-6343
If to Borrower: The Profit Recovery Group International, Inc.
2300 Windy Ridge Parkway
Suite 100 North
Atlanta, Georgia 30339-8426
Attention: Mr. Tony G. Mills
Telecopier No.: (770) 661-3034
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 12.10.
12.11 LENDER'S CONSENT. Except to the extent this Agreement or the
Loan Documents provide for another standard, whenever Lender's consent is
required to be obtained under this Agreement or any of the other Loan Documents
as a condition to any action, inaction, condition or event, Lender shall be
authorized to give or withhold such consent in its discretion.
12.12 DEMAND OBLIGATIONS. Nothing in this Agreement shall affect or
abrogate the demand nature of any portion of the Obligations expressly made
payable on demand by this Agreement or by any instrument evidencing or securing
same, and the occurrence of an Event of Default shall not be a prerequisite for
Lender's requiring payment of such Obligations.
12.13 LENDER'S RIGHT TO SET-OFF. Upon and after the occurrence of
an Event of Default, Lender, without notice or demand of any kind except as may
be required herein, may hold and set-off against such of the Obligations as
Lender may elect, any balance or amount to the credit of Borrower or any
Guarantor in any deposit, agency, reserve, holdback or other account of any
nature whatsoever, maintained by or on behalf of Borrower or any Guarantor with
Lender at its offices, regardless of whether such accounts are general or
special and regardless of whether such accounts are individual or joint.
12.14 TIME OF ESSENCE. Time is of the essence of this Agreement,
the Other Agreements, and the Security Documents.
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12.15 ENTIRE AGREEMENT. This Agreement and the other Loan
Documents, together with all other instruments, agreements and certificates
executed by the parties in connection therewith or with reference thereto,
embody the entire understanding and agreement between the parties hereto and
thereto with respect to the subject matter hereof and thereof and supersede all
prior agreements, understandings and inducements, whether express or implied,
oral or written.
12.16 MARSHALLING; PAYMENTS SET ASIDE. Lender shall be under no
obligation to marshall any assets or securities in favor of Borrower or any
Guarantor or any other Person or against or in payment of any or all of the
Obligations. To the extent that Borrower or any Guarantor makes a payment or
payments to Lender, or Lender enforces its security interest or exercises its
rights of setoff, in such payment or payments for the proceeds of such
enforcement or setoff or any part thereof or subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then to the extent of such recovery, the
Obligations or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
12.17 INDEPENDENCE OF COVENANTS, REPRESENTATIONS AND WARRANTIES.
All covenants hereunder shall be given independent effect so that, if a
particular action or conditions is not permitted by any such covenant or any
representation or warranty hereunder, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant,
representation or warranty shall not avoid the occurrence of a Default or an
Event of Default if such action is taken or condition exists.
12.18 GOVERNING LAW; CONSENT TO FORUM. THIS AGREEMENT HAS BEEN
NEGOTIATED, EXECUTED AND DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN MADE IN
ATLANTA, GEORGIA. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA; PROVIDED, HOWEVER, THAT IF
ANY OF THE COLLATERAL SHALL BE LOCATED IN ANY JURISDICTION OTHER THAN GEORGIA,
THE LAWS OF SUCH JURISDICTION SHALL GOVERN THE METHOD, MANNER AND PROCEDURE FOR
FORECLOSURE OF LENDER'S LIEN UPON SUCH COLLATERAL AND THE ENFORCEMENT OF
LENDER'S OTHER REMEDIES IN RESPECT OF SUCH COLLATERAL TO THE EXTENT THAT THE
LAWS OF SUCH JURISDICTION ARE DIFFERENT FROM OR INCONSISTENT WITH THE LAWS OF
GEORGIA. AS PART OF THE CONSIDERATION FOR NEW VALUE RECEIVED, AND REGARDLESS
OF ANY PRESENT OR FUTURE DOMICILE OR PRINCIPAL PLACE OF BUSINESS OF BORROWER,
ANY GUARANTOR OR LENDER, BORROWER AND EACH GUARANTOR HEREBY CONSENT AND AGREE
THAT THE SUPERIOR COURT OF COBB COUNTY, GEORGIA, OR, AT LENDER'S OPTION, THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA
DIVISION, SHALL HAVE JURISDICTION (SUBJECT TO SECTION 12.20 BELOW) TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN BORROWER, ANY
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GUARANTOR AND LENDER PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT
OF OR RELATED TO THIS AGREEMENT; PROVIDED, HOWEVER, LENDER MAY, AT ITS OPTION,
COMMENCE ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER APPROPRIATE FORUM OR
JURISDICTION TO OBTAIN POSSESSION OF OR FORECLOSURE UPON ANY COLLATERAL, TO
OBTAIN EQUITABLE RELIEF, TO ENFORCE ANY JUDGMENT OR ORDER OBTAINED BY LENDER
AGAINST BORROWER, ANY GUARANTOR OR WITH RESPECT TO ANY COLLATERAL OR TO OBTAIN
ANY OTHER RELIEF DEEMED NECESSARY OR APPROPRIATE BY LENDER. BORROWER AND EACH
GUARANTOR EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND BORROWER AND EACH GUARANTOR
HEREBY WAIVE ANY OBJECTION WHICH BORROWER OR SUCH GUARANTOR MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING FOR SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. BORROWER AND EACH GUARANTOR HEREBY WAIVE PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION
OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE LOAN PARTIES AT
THE ADDRESS SET FORTH IN THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS
AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF LENDER TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
12.19 GENERAL WAIVERS. EXCEPT AS MAY BE EXPRESSLY REQUIRED HEREIN,
EACH LOAN PARTY WAIVES (i) PRESENTMENT, DEMAND AND PROTEST AND NOTICE OF
PRESENTMENT, PROTEST, DEFAULT, NON PAYMENT, MATURITY, RELEASE, COMPROMISE,
SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL PAPER, ACCOUNTS,
CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS, CHATTEL PAPER AND GUARANTIES AT ANY
TIME HELD BY LENDER ON WHICH BORROWER OR ANY GUARANTOR MAY IN ANY WAY BE LIABLE
AND HEREBY RATIFY AND CONFIRM WHATEVER LENDER MAY DO IN THIS REGARD; (ii)
NOTICE PRIOR TO LENDER'S TAKING POSSESSION OR CONTROL OF ANY OF THE COLLATERAL
OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO ALLOWING
LENDER TO EXERCISE ANY OF LENDER'S REMEDIES, INCLUDING THE ISSUANCE OF AN
IMMEDIATE WRIT OF POSSESSION; (iii) THE BENEFIT OF ALL VALUATION, APPRAISEMENT
AND EXEMPTION LAWS; (iv) ANY RIGHT BORROWER OR ANY GUARANTOR MAY HAVE UPON
PAYMENT IN FULL OF THE OBLIGATIONS TO REQUIRE LENDER TO TERMINATE ITS SECURITY
INTEREST IN THE COLLATERAL OR IN ANY OTHER PROPERTY OF BORROWER OR SUCH
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GUARANTOR UNTIL LENDER HAS RECEIVED PAYMENT IN FULL IN IMMEDIATELY AVAILABLE
FUNDS; AND (v) NOTICE OF ACCEPTANCE HEREOF.
12.20 ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM
BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING
ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL ARBITRATION AND MEDIATION
SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE
EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY
TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS
AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(A) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN
THE CITY OF BORROWER'S DOMICILE AT THE TIME OF THIS AGREEMENT'S EXECUTION AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE
OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN NINETY (90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR
SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF
SUCH HEARING FOR AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT
SHALL BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE
STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT;
OR (ii) BE A WAIVER BY THE LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C.
Section 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT
OF THE LENDER HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (c) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES
SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE
APPOINTMENT OF A RECEIVER. THE LENDER MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSURE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING
BROUGHT PURSUANT TO THIS
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AGREEMENT. NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES
SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN
SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO LIMIT
THE RIGHT OF ANY LOAN PARTY TO SEEK INJUNCTIVE RELIEF.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered in Atlanta, Georgia, on the day and year specified at the beginning
hereof.
BORROWER:
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THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC., A GEORGIA
CORPORATION
By:
--------------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
----------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
GUARANTORS:
----------
THE PROFIT RECOVERY GROUP
INTERNATIONAL I, INC., A GEORGIA
CORPORATION
By:
--------------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
----------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
35
<PAGE> 41
THE PROFIT RECOVERY GROUP
U.K., INC., A GEORGIA CORPORATION
By:
----------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
THE PROFIT RECOVERY GROUP
ASIA, INC., A GEORGIA CORPORATION
By:
----------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
THE PROFIT RECOVERY GROUP
CANADA, INC., A GEORGIA CORPORATION
By:
----------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
36
<PAGE> 42
THE PROFIT RECOVERY GROUP NEW
ZEALAND, INC., A GEORGIA CORPORATION
By:
-------------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
---------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
THE PROFIT RECOVERY GROUP
NETHERLANDS, INC., A GEORGIA CORPORATION
By:
-------------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
---------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
THE PROFIT RECOVERY GROUP
BELGIUM, INC., A GEORGIA CORPORATION
By:
-------------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
---------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
37
<PAGE> 43
THE PROFIT RECOVERY GROUP
MEXICO, INC., A GEORGIA CORPORATION
By:
-----------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
-------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
THE PROFIT RECOVERY GROUP
FRANCE, INC., A GEORGIA CORPORATION
By:
-----------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
-------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
THE PROFIT RECOVERY GROUP
AUSTRALIA, INC., A GEORGIA CORPORATION
By:
-----------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
-------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
38
<PAGE> 44
THE PROFIT RECOVERY GROUP
GERMANY, INC., A GEORGIA CORPORATION
By:
----------------------------------
Donald E. Ellis, Jr.
Senior Vice President
Attest:
------------------------------
Tony G. Mills, Secretary
[CORPORATE SEAL]
LENDER:
------
NATIONSBANK, N.A. (SOUTH)
By:
----------------------------------
Gary L. Young
Senior Vice President
[BANK SEAL]
39
<PAGE> 45
EXHIBIT A-1
NATIONSBANK(R)
PROMISSORY NOTE
(TERM NOTE)
$_________________________
Date: ___________, 1996
Atlanta, Georgia
1. PROMISE TO PAY. FOR VALUE RECEIVED, the undersigned, THE
PROFIT RECOVERY GROUP INTERNATIONAL, INC., a Georgia corporation (hereinafter
referred to as "Maker"), promises to pay to the order of NATIONSBANK, N.A.
(SOUTH), a national bank (hereinafter referred to as "Payee"; Payee and any
subsequent holder of all or any part interest in this Note being hereinafter
referred to collectively as "Holder"), at the following address:
NationsBank, N.A. (South)
600 Peachtree Street, N.E.
19th Floor
Atlanta, Georgia 30308
Attn: Gary L. Young, Senior Vice President
or at any such other place as Holder may designate to Maker in writing from
time to time, the principal sum of __________________ AND NO/100THS DOLLARS
($______________.00), or so much thereof as shall be disbursed hereunder and
shall from time to time be outstanding and unpaid, together with interest
thereon at the rates hereinafter set forth (subject to adjustment and
designation of the applicable interest rate or rates as provided below), in
lawful money of the United States of America, which at the time of payment
shall be legal tender in payment of all debts and dues, public and private,
such principal and interest to be paid in the manner hereinafter provided.
This Promissory Note (the "Note") is executed and delivered pursuant to that
certain Loan and Security Agreement, dated _______________, among Payee, Maker
and certain affiliates of Maker (hereinafter, together with all supplements and
amendments thereto, the "Loan Agreement"). This Note is a Term Note referred
to in, and is issued pursuant to, the Loan Agreement, and is entitled to all of
the benefits and security of the Loan Agreement. All of the terms, covenants
and conditions of the Loan Agreement and all other instruments evidencing or
securing the indebtedness hereunder are hereby made a part of this Note and are
deemed incorporated herein in full. All capitalized terms used herein, unless
otherwise specifically defined in this Note, shall have the meanings ascribed
to them in the Loan Agreement.
2. DEFINITIONS. As used herein, the following terms shall have
the indicated definitions:
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<PAGE> 46
(a) "Business Day" means any day whereon banks are open for
business in Atlanta, Georgia and, with respect to borrowing, payment or rate
selection of the Fixed Rate or a Eurodollar Interest Period, any day whereon
banks are open for business in both Atlanta, Georgia and New York, New York and
whereon dealings in U.S. dollars are carried on in the London interbank market.
(b) "Default Rate" means (i) with respect to the Floating Rate, a
rate per annum equal to the Prime Rate plus two percent (2%); and (ii) with
respect to the Fixed Rate for the remainder of the applicable Eurodollar
Interest Period, a rate per annum equal to the applicable Eurodollar Rate plus
two percent (2%), and after such applicable Eurodollar Interest Period at the
rate per annum equal to the Prime Rate plus two percent (2%).
(c) "Effective Date" means any Business Day designated by Maker in
a Rate Selection Notice as the date such rate selection shall become effective.
(d) "Eurodollar Interest Period" means, with respect to the Fixed
Rate, a period of thirty (30) days, sixty (60) days, ninety (90) days or one
hundred eighty (180) days to the extent eurodollar borrowings of such or
similar periods are available, commencing on a Business Day and selected by the
Maker in its Rate Selection Notice; provided, however, such Eurodollar Interest
Period shall commence on the last day of the immediately preceding Eurodollar
Interest Period in the case of a rollover to a successive Eurodollar Interest
Period. If any Eurodollar Interest Period would otherwise end on a day which
is not a Business Day, such Eurodollar Interest Period shall end on the next
succeeding Business Day. Any Eurodollar Interest Period must end on or before
the maturity date of this Note.
(e) "Eurodollar Rate" means, with respect to the relevant
Eurodollar Interest Period, the sum of the LIBOR Rate applicable to that
Eurodollar Interest Period plus one and three-quarters percent (1.75%) per
annum, subject to adjustment from time to time as hereinafter provided. The
Eurodollar Rate shall be rounded, if necessary, to the next higher
one-sixteenth of one percent.
(f) "Event of Default" means an Event of Default as that term is
defined in the Loan Agreement.
(g) "Fixed Rate" means the rate per annum for the applicable
Eurodollar Rate selected from time to time pursuant to this Note.
(h) "Floating Rate" means a rate per annum equal to the Prime
Rate, changing when and as the Prime Rate changes.
(i) "LIBOR Rate" means the simple interest rate per annum
determined by Holder, taking into account the rates at which deposits in United
States dollars for periods of thirty (30) days, sixty (60) days, ninety (90)
days and one hundred eighty (180) days (each of the foregoing is individually
referred to as "LIBOR Rate Option") are offered in the interbank
2
<PAGE> 47
eurodollar market, and such other factors as Holder may reasonably deem
appropriate from time to time. The LIBOR Rate is established in the discretion
of Holder for the particular indebtedness evidenced by this Note, and may not
be the lowest rate based in part upon which market for deposits in the
interbank eurodollar market at which Holder prices loans on the date on which
the LIBOR Rate is established. The rate of interest charged under this Note
with respect to any selection of any of the LIBOR Rate Options shall be the
selected LIBOR Rate Option on the Effective Date of the Rate Selection Notice,
and shall continue to be the same rate of interest, without daily adjustment,
until the maturity of the selected LIBOR Rate Option has fully elapsed or the
Rate Selection Notice has been terminated as otherwise provided herein. The
LIBOR Rate Option applicable to new selections shall be the rate of interest of
the selected LIBOR Rate Option on the Effective Date of the Rate Selection
Notice. In the event that Holder shall have determined that the dollar
deposits in an amount approximately equal to the Principal Amount are not
available to Holder at such time in the interbank eurodollar market, or that
reasonable means within the customary operating practices of Holder do not
exist for ascertaining a LIBOR Rate, or if any change in any law or regulation
or in the interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make in unlawful for Holder to
make or maintain LIBOR Rates with respect to the principal balance hereof or to
fund the principal advanced hereunder in the interbank eurodollar market then,
Holder shall promptly notify Maker and thereafter such portion of the principal
balance hereof shall bear interest at the Floating Rate until such time, if
any, as a LIBOR Rate loan can be made by Holder to Maker, following which
Holder shall be entitled to the selection of the LIBOR Rate Options as provided
in this Note.
(j) "Minimum Notice Period" means a period commencing no later
than 10:00 a.m. Atlanta, Georgia time three (3) Business Days prior to the
Effective Date of a Fixed Rate Advance.
(k) "Prime Rate" shall be the per annum rate announced by Payee
from time to time as its Prime Rate and as one of the several interest rate
bases used by Payee. Payee lends at rates both above and below the Prime Rate
and is not represented or intended to be the lowest or most favorable rate of
interest offered by Payee. If, and to the extent and from time to time, the
Prime Rate of Payee increases or decreases, then the Prime Rate under this Note
shall be corresponding increased or decreased, such increase or decrease
hereunder to be effective as of the date on which such increase or decrease of
the Prime Rate of Payee occurs. The Prime Rate in effect at the end of each
day shall be the Prime Rate utilized for purposes of calculating interest under
this Note for such day. In the event that Payee shall abolish or abandon the
practice of establishing its Prime Rate, Holder shall designate a comparable
reference rate which shall be deemed to be the Prime Rate hereunder.
(l) "Principal Amount" means the principal amount outstanding from
time to time under this Note.
(m) "Rate Option" means the rate per annum equal to either (i) the
Floating Rate or (ii) the Eurodollar Rate.
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<PAGE> 48
(n) "Rate Selection Notice" means a written or telephonic notice
(such telephonic notice to be immediately confirmed by written or telefaxed
notice) providing irrevocable notice by the Maker to the Payee specifying (i)
the Eurodollar Interest Period which Maker desires to select, and (ii) the
Effective Date of each such Eurodollar Rate selection.
(o) "Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to Reserve Requirements applicable to member banks of the
Federal Reserve System.
(p) "Reserve Requirement" means, with respect to a Eurodollar
Interest Period, the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves and taking into account any
transitional adjustments or scheduled changes in reserve requirements during
such Eurodollar Interest Period) which is imposed under Regulation D on
non-personal time deposits of $100,000.00 or more with a maturity date equal to
that on Eurocurrency liabilities.
3. FLOATING RATE BORROWING. Except as provided in Section 4
below, this Note shall bear interest at the rate per annum equal to the
Floating Rate and, therefore, the initial rate of interest as of the date
hereof, expressed in simple interest terms, is____% per annum. If at any time
or from time to time the Floating Rate increases or decreases, then the rate of
interest hereunder shall be correspondingly increased or decreased effective on
the date of which such increase or decrease of such Floating Rate takes effect.
4. SELECTION OF FIXED RATE. Subject to the terms and conditions
of this Note, Maker may elect from time to time that interest accrue at a rate
per annum equal to the Eurodollar Rate rather than the rate per annum equal to
the Floating Rate, and for a Eurodollar Interest Period selected hereunder for
all (but not less than all) of the outstanding principal balance of this Note
by giving the Holder the appropriate Rate Selection Notice in not less than the
Minimum Notice Period applicable thereto. The Principal Amount shall bear
interest from and including the first day of the Eurodollar Interest Period
applicable thereto and during such Eurodollar Interest Period. Except in
accordance with Section 7 hereof, the Rate Option shall not be changed by the
Maker. Maker may select a new Eurodollar Interest Period and Eurodollar Rate
to apply to the Principal Amount, effective as of the last day of the existing
Eurodollar Interest Period, by giving a Rate Selection Notice in not less than
the Minimum Notice Period. If at the end of a Eurodollar Interest Period the
Maker fails to select a new Eurodollar Rate and new Eurodollar Interest Period,
then the Principal Amount shall accrue interest at the Floating Rate on and
after the last day of such existing Eurodollar Interest Period until paid or
until the Effective Date of a new Rate Option selected by the Maker. The Maker
may not select the Fixed Rate if, on the date of the Rate Selection Notice or
the Effective Date of such selection, there exists an Event of Default.
5. RESTRICTIONS ON FIXED RATE. Notwithstanding anything in this
Note to the contrary, Maker may not select that this Note accrue at the Fixed
Rate unless the
4
<PAGE> 49
outstanding principal balance of this Note as of the date of such election is
equal to or greater than $500,000.00.
6. TELEPHONIC NOTICES. Maker hereby authorizes the Payee to
effect Rate Option selections based on telephonic notices made by any one of
the following (or such other persons as Borrower may designate in writing from
time to time to Lender):
Donald E. Ellis, Jr.
Jorge Cora
The Maker agrees to deliver promptly to Payee a written confirmation of each
telephone notice signed by an authorized officer of Maker. If the written
confirmation differs in any material respect from the action taken by the
Payee, the records of the Payee shall govern absent manifest error.
7. YIELD PROTECTION. With respect only to interest calculated at
the Fixed Rate, if any existing or future law, governmental rule, policy,
guideline, regulation or directive, whether or not having the force of law, or
compliance of the Payee with such, (i) subjects the Payee to any tax, duty,
charge or withholding on or from payments due from the Maker (excluding U.S.
taxation of the overall net income of the Payee), or changes the basis of
taxation of payment to the Payee in respect of the Indebtedness, or (ii)
imposes or increases or deems applicable any reserve, assessment (other than
reserves and assessments included in the Reserve Requirement with respect to
principal accruing at the Fixed Rate), special deposit, insurance charge or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, the Payee (other than reserves and assessments taken into
account in determining the Fixed Rate), or (iii) imposes any other condition
the result of which is to increase the cost to the Payee of making, funding or
maintaining U.S. dollar loans or reduces any amount receivable by the Payee in
connection with U.S. dollar loans, or requires the Payee to make any payment
calculated by reference to the amount of loans held or interest received by it,
by an amount deemed material by the Payee, or (iv) affects the amount of
capital required or expected to be maintained by the Payee or any corporation
controlling the Payee and the Payee determines that the amount of capital
required is increased by or based upon the existence of the Loan or any of the
Loan Documents or its obligation to make the Loan hereunder or of commitments
of this type, then within 15 days of demand by the Payee, Maker shall pay the
Payee that portion of such increased expense incurred (including, in the case
of Paragraph 7(iv), any reduction in the rate of return on capital to an amount
below that which it could have achieved but for such change in regulation after
taking into account Payee's policies as to capital adequacy) or the amount of
reduction in an amount received which the Payee determines is attributable to
making, funding and maintaining the Loan. A certificate of Payee is to the
amounts payable pursuant to this Paragraph 7 (which certificate shall reflect
in reasonable detail the method and basis for the calculation thereof)
submitted to Maker shall, absent manifest error, be final and binding upon all
of the parties hereto. Payee will give Maker notice that Payee has determined
that amounts are due and payable pursuant to this Paragraph 7 within a
reasonable time after such determination by Payee. Payee agrees that the
determination of any such increased expense incurred or in the amount of
reduction in
5
<PAGE> 50
the amount received shall be consistent with such determination made with
respect to other loans of Payee which are similarly structured, of a similar
amount and for a similar purpose.
8. (a) AVAILABILITY OF INTEREST RATE. If the Payee
determines that (i) maintenance of the Fixed Rate would violate any applicable
law, rule, regulation, or directive, whether or not having the force of law,
(ii) deposits of a type and maturity appropriate to match fund a Fixed Rate
loan are not available, or (iii) a Eurodollar Rate does not accurately reflect
the cost of making or maintaining the Fixed Rate, then the Payee shall suspend
the availability of the affected LIBOR Rate Option and require that the Fixed
Rate under an affected LIBOR Rate Option to be converted to an unaffected Rate
Option. Subject to the terms and conditions of this Note, the Maker may
select, by giving a Rate Selection Notice in not less than the Minimum Notice
Period, any unaffected Rate Option to apply to this Note. If the Maker fails
to select a new Rate Option, this Note shall accrue interest at the Floating
Rate.
(b) BANK CERTIFICATES; SURVIVAL OF INDEMNITY. A certificate of
the Payee as to the amount due under Section 7 shall be final, conclusive and
binding on the Maker in the absence of manifest error. Determination of
amounts payable under such Section 7 shall be calculated as though the Holder
funded its Fixed Rate loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
Eurodollar Rate applicable to such Fixed Rate loan, whether in fact that is the
case or not. Unless otherwise provided herein, the amount specified in the
certificate shall be payable on demand after receipt by the Maker of the
certificate. The obligations under Section 7 shall survive for a period of six
(6) months following repayment of the Loan.
9. PAYMENTS OF PRINCIPAL AND INTEREST. Commencing one (1) month
from the date of this Note and continuing on the same day of each calendar
month thereafter through and including [the month which is 48 months from the
date of the Note], there shall be due and payable monthly installments
consisting of (i) all accrued and unpaid interest under this Note, plus (ii)
principal in the amount of [1/48 of the principal amount of the Note].
Interest shall be calculated on a 360 day year basis for the actual
number of days elapsed. If any payment of principal or interest hereunder
would become due and payable on a day which is not a Business Day, then such
payment shall be due and payable on the next succeeding Business Day.
10. PAYMENT OF PRINCIPAL. If not sooner paid (subject to the
restrictions on prepayment contained in the Loan Documents) the entire
outstanding principal balance of this Note shall be due and payable in full 48
months from the date of this Note.
11. APPLICATION OF PAYMENTS. If any permitted payments or
prepayments are received when no Event of Default exists hereunder or under any
of the Loan Documents, and if any such payments do not fully pay all sums
evidenced by this Note, then such payment first shall be applied to the payment
of late charges and other fees payable under this Note or the Loan Documents,
then to accrued and unpaid interest under this Note and, then, to the
6
<PAGE> 51
outstanding principal balance of this Note. Following any partial prepayment
of this Note, following the date of such prepayment, monthly installments shall
be due and payable consisting of (i) all accrued and unpaid interest, and (ii)
equal installments of principal based upon an amortization of the outstanding
principal balance of the Note following such prepayment over the number of
monthly installments payable between such date and the maturity date of this
Note.
12. FACILITY. The loan made pursuant to this Note is governed by
the terms of the Loan Agreement whereby the loan evidenced by this Note shall
be made pursuant to and subject to the Loan Agreement.
13. PREPAYMENT. Maker may, from time to time, pay all or any
portion this Note without prepayment premium or penalty provided that, at the
time of such prepayment, this Note is accruing interest at the Floating Rate.
If a prepayment of all or any portion of the outstanding amount of this Note is
made at the time that this Note is accruing interest at the Fixed Rate, then
there shall be due and payable as a condition to such prepayment a prepayment
premium equal to any loss or cost incurred by Holder resulting from such
prepayment including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the fixed rate under this Note.
14. LATE CHARGE. A late charge shall be due and payable in the
amount of five percent (5%) of the amount of any installment or payment of
interest and/or principal not paid within ten (10) days of the date on which
such installment or payment was due. Holder shall have no obligation to accept
any such delinquent payment of principal and/or interest without the
accompanying late charge, and the acceptance by Holder of such delinquent
payment without the accompanying late charge shall not constitute a waiver by
Holder of the right to enforce and collect such late charge. Maker
acknowledges and agrees that the late charge herein provided is not a charge in
the nature of interest imposed for the use of money advanced under this Note;
rather, the late charge is imposed to compensate Holder for the expense,
inconvenience and economic frustration experienced by Holder as a result of
Maker's failure to make timely payments due hereunder, and is a reasonable
forecast and estimate of Holder's actual damages and loss on account of such
delinquent payment.
15. DEFAULT AND ACCELERATION. It is hereby expressly agreed that
should default occur in any payment of principal or interest stipulated, or
should any other Event of Default occur, then, and in any such event, the
outstanding principal balance of the indebtedness evidenced hereby, and any
other sums advanced hereunder or under the Loan Documents (hereinafter
defined), together with all accrued and unpaid interest, at the option of
Holder and without notice to Maker except as otherwise provided herein or in
the Loan Documents, shall at once become due and payable and may be collected
forthwith, regardless of the stipulated date of maturity. Interest shall
accrue at the applicable Default Rate from maturity, or sooner following the
occurrence of a default hereunder and after the expiration date of any period
provided for the curing of such default and for so long as such default
continues, regardless of whether or not there has been an acceleration of the
indebtedness evidenced hereby as set forth herein. All such interest at the
Default Rate shall be paid at the
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<PAGE> 52
time of and as a condition precedent to the curing of any such default should
Maker have the right to cure such default. Time is of the essence of this
Note. In the event this Note, or any part thereof, is collected by or through
an attorney-at-law, Maker agrees to pay all costs of collection including, but
not limited to, reasonable attorneys' fees actually incurred.
16. WAIVERS.
(a) Except as expressly required herein or in the Loan Documents,
presentment for payment, demand, protest and notice of demand, protest and
non-payment and all other notices, except for such notices (if any) of default
provided to be given hereunder or under any of the Loan Documents, are hereby
waived by Maker. No failure to accelerate the debt evidenced hereby by reason
of default hereunder, acceptance of a past due installment, or indulgences
granted from time to time shall be construed (i) as a novation of this Note or
as a reinstatement of the indebtedness evidenced hereby or as a waiver of such
right of acceleration or of the right of Holder thereafter to insist upon
strict compliance with the terms of this Note, or (ii) to prevent the exercise
of such right of acceleration or any other right granted hereunder or by the
laws of the State of Georgia; and Maker hereby expressly waives the benefit of
any statute or rule of law or equity now provided, or which may hereafter be
provided, which would produce a result contrary to or in conflict with the
foregoing. No extension of the time for the payment of this Note or any
installment due hereunder, made by agreement with any person now or hereafter
liable for the payment of this Note, shall operate to release, discharge,
modify, change or affect the original liability of Maker under this Note,
either in whole or in part, unless Holder agrees otherwise in writing. This
Note may not be changed orally, but only by an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification or
discharge is sought.
(b) Maker hereby waives and renounces for itself, its heirs,
successors and assigns, all rights to the benefit of any statute of limitations
and any moratorium, reinstatement, marshalling, forbearance, valuation, stay,
extension, redemption, appraisement, exemption and homestead now provided, or
which may hereafter be provided by the Constitution and laws of the United
States of America and of any state thereof, both as to itself and in and to all
of its property, real and personal, against the enforcement and collection of
the obligations evidenced by this Note. Maker hereby transfers, conveys and
assigns to Holder a sufficient amount of such homestead or exemption as may be
set apart in bankruptcy, to pay this Note in full, with all costs of
collection, and does hereby direct any trustee in bankruptcy having possession
of such homestead or exemption to deliver to Holder a sufficient amount of
property or money set apart as exempt to pay the indebtedness evidenced hereby,
or any renewal thereof, and does hereby appoint Holder the attorney-in-fact for
Maker to claim any and all homestead exemptions allowed by law.
17. GOVERNING LAW. This Note is intended as a contract under and
shall be construed and enforceable in accordance with the laws of the State of
Georgia.
18. DEFINITIONS. As used herein, the terms "Maker" and "Holder"
shall be deemed to include their respective heirs, successors, legal
representatives and assigns, whether
8
<PAGE> 53
by voluntary action of the parties or by operation of law. In the event that
more than one person, firm or entity is a Maker hereunder, then all references
to "Maker" shall be deemed to refer equally to each of said persons, firms, or
entities, all of whom shall be jointly and severally liable for all of the
obligations of Maker hereunder.
19. LEGAL LIMITATIONS. It is the express intent hereof that the
undersigned not pay and the Holder not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be legally paid by the
undersigned under applicable law. In no event, whether by reason of demand for
payment or acceleration of the maturity of the Note or otherwise, shall the
interest contracted for, charged or received by Holder hereunder or otherwise
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to Holder in
excess of the maximum lawful amount permitted under applicable law, the
interest payable to Holder shall be reduced automatically to the maximum amount
permitted under applicable law. If Holder shall ever receive anything of value
deemed interest under applicable law which would apart from this provision be
in excess of the maximum lawful amount, an amount equal to any amount which
would have been excessive interest shall be applied to the reduction of the
principal amount owing on the Note in the inverse order of its maturity and not
to the payment of interest, or if such amount which would have been excessive
interest exceeds the unpaid principal balance of the Note, such excess shall be
refunded to Maker. All interest paid or agreed to be paid to Holder shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full stated term (including any renewal or extension) of
such indebtedness so that the amount of interest on account of such
indebtedness does not exceed the maximum permitted by applicable law. The
provisions of this paragraph shall control all existing and future agreements
between Maker and Holder.
20. ARBITRATION. Any controversy or claim between or among the
parties hereto including but not limited to those arising out of or relating to
this Note or any related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by binding arbitration
in accordance with the Federal Arbitration Act (or if not applicable, the
applicable state law), the Rules of Practice and Procedure for the Arbitration
of Commercial Disputes or Judicial Arbitration and Mediation Services, Inc.
("J.A.M.S."), and the "Special Rules" set forth below. In the event of any
inconsistency, the Special Rules shall control. Judgment upon any arbitration
award may be entered in any court having jurisdiction. Any party to this Note
may bring an action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim in which this Note applies in any court
having jurisdiction over such action.
21. SPECIAL RULES. The arbitration shall be conducted in the city
of Maker's domicile at the time of this Note's execution and administered by
J.A.M.S., who will appoint an arbitrator; if J.A.M.S. is unable or legally
precluded from administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be commenced within
ninety (90) days of the demand for arbitration; further the arbitrator shall
only, upon a showing of cause, be permitted to extend the commencement of such
hearing for an additional sixty (60) days.
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<PAGE> 54
22. RESERVATION OF RIGHTS. Nothing in this Note shall be deemed
to (i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Note; or (ii) be a
waiver by the Holder of the protection afforded to it by 12 U.S.C. Section 91
or any substantially equivalent state law; or (iii) limit the right of the
Holder hereto (a) to exercise self help remedies such as (but not limited to)
setoff, or (b) to foreclose against any real or personal property collateral,
or (c) to obtain from a court provisional or ancillary remedies such as (but
not limited to) injunctive relief, writ of possession or the appointment of a
receiver. The Holder may exercise such self help rights, foreclosure upon such
property, or obtain such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought pursuant to this Note.
Neither the exercise or self help remedies nor the institution or maintenance
of an action for foreclosure or provisional or ancillary remedies shall
constitute a waiver of the right of any party, including the claimant in such
action, to arbitrate the merits of the controversy or claim occasioning resort
to such remedies. Nothing in this Note shall be deemed to limit the right of
Maker to seek injunctive relief.
23. TITLES. The titles of sections or paragraphs herein are used
for the convenience of the parties only and neither amplify, modify or alter in
any way the provisions of this instrument.
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<PAGE> 55
IN WITNESS WHEREOF, Maker has executed this Note under seal on the
date first above written.
MAKER:
-----
THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC., a Georgia
corporation
By:
--------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
---------------------------
Tony G. Mills, Secretary
(CORPORATE SEAL)
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<PAGE> 56
EXHIBIT A-2
NATIONSBANK(R)
PROMISSORY NOTE
$10,000,000.00
Date: ___________, 1996
Atlanta, Georgia
1. PROMISE TO PAY. FOR VALUE RECEIVED, the undersigned, THE
PROFIT RECOVERY GROUP INTERNATIONAL, INC., a Georgia corporation (hereinafter
referred to as "Maker"), promises to pay to the order of NATIONSBANK, N.A.
(SOUTH), a national bank (hereinafter referred to as "Payee"; Payee and any
subsequent holder of all or any part interest in this Note being hereinafter
referred to collectively as "Holder"), at the following address:
NationsBank, N.A. (South)
600 Peachtree Street, N.E.
19th Floor
Atlanta, Georgia 30308
Attn: Gary L. Young, Senior Vice President
or at any such other place as Holder may designate to Maker in writing from
time to time, the principal sum of TEN MILLION AND NO/100THS DOLLARS
($10,000,000.00), or so much thereof as shall be disbursed hereunder and shall
from time to time be outstanding and unpaid, together with interest thereon at
one or more of the rates hereinafter set forth (subject to adjustment and
designation of the applicable interest rate or rates as provided below), in
lawful money of the United States of America, which at the time of payment
shall be legal tender in payment of all debts and dues, public and private,
such principal and interest to be paid in the manner hereinafter provided.
This Promissory Note (the "Note") is executed and delivered pursuant to that
certain Loan and Security Agreement, dated as of even date herewith, among
Payee, Maker and certain affiliates of Maker (hereinafter, together with all
supplements and amendments thereto, the "Loan Agreement"). This Note is the
Revolver Note referred to in, and is issued pursuant to, the Loan Agreement,
and is entitled to all of the benefits and security of the Loan Agreement. All
of the terms, covenants and conditions of the Loan Agreement and all other
instruments evidencing or securing the indebtedness hereunder are hereby made a
part of this Note and are deemed incorporated herein in full. All capitalized
terms used herein, unless otherwise specifically defined in this Note, shall
have the meanings ascribed to them in the Loan Agreement.
2. DEFINITIONS. As used herein, the following terms shall have
the indicated definitions:
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<PAGE> 57
(a) "Advance" means a Fixed Rate Advance or a Floating Rate
Advance.
(b) "Business Day" means any day whereon banks are open for
business in Atlanta, Georgia and, with respect to borrowing, payment or rate
selection of a Fixed Rate Advance or a Eurodollar Interest Period, any day
whereon banks are open for business in both Atlanta, Georgia and New York, New
York and whereon dealings in U.S. dollars are carried on in the London
interbank market.
(c) "Default Rate" means (i) with respect to each Floating Rate
Advance, a rate per annum equal to the Prime Rate plus two percent (2%); and
(ii) with respect to each Fixed Rate Advance for the remainder of the
applicable Eurodollar Interest Period, a rate per annum equal to the applicable
Eurodollar Rate plus two percent (2%), and after such applicable Eurodollar
Interest Period at the rate per annum equal to the Prime Rate plus two percent
(2%).
(d) "Effective Date" means any Business Day designated by Maker in
a Rate Selection Notice as the date such rate selection shall become effective,
or the first day of Floating Rate Advance.
(e) "Eurodollar Interest Period" means, with respect to a Fixed
Rate Advance, a period of thirty (30) days, sixty (60) days, ninety (90) days
or one hundred eighty (180) days to the extent eurodollar borrowings of such or
similar periods are available, commencing on a Business Day and selected by the
Maker in its Rate Selection Notice; provided, however, such Eurodollar Interest
Period shall commence on the last day of the immediately preceding Eurodollar
Interest Period in the case of a rollover to a successive Eurodollar Interest
Period. If any Eurodollar Interest Period would otherwise end on a day which
is not a Business Day, such Eurodollar Interest Period shall end on the next
succeeding Business Day. Any Eurodollar Interest Period must end on or before
the maturity date of this Note.
(f) "Eurodollar Rate" means, with respect to a Fixed Rate Advance
for the relevant Eurodollar Interest Period, the sum of the LIBOR Rate
applicable to that Eurodollar Interest Period plus one and three-quarters
percent (1.75%) per annum, subject to adjustment from time to time as
hereinafter provided. The Eurodollar Rate shall be rounded, if necessary, to
the next higher one-sixteenth of one percent.
(g) "Event of Default" means an Event of Default as that term is
defined in the Loan Agreement.
(h) "Fixed Rate Advance" means that portion of the Principal
Amount to which the Eurodollar Rate is applicable for a particular Eurodollar
Interest Period.
(i) "Floating Rate" means a rate per annum equal to the Prime
Rate, changing when and as the Prime Rate changes.
(j) "Floating Rate Advance" means that portion of the Principal
Amount of the Note bearing interest at the Floating Rate.
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<PAGE> 58
(k) "LIBOR Rate" means the simple interest rate per annum
determined by Holder, taking into account the rates at which deposits in United
States dollars for periods of thirty (30) days, sixty (60) days, ninety (90)
days and one hundred eighty (180) days (each of the foregoing is individually
referred to as "LIBOR Rate Option") are offered in the interbank eurodollar
market, and such other factors as Holder may reasonably deem appropriate from
time to time. The LIBOR Rate is established in the discretion of Holder for
the particular indebtedness evidenced by this Note, and may not be the lowest
rate based in part upon which market for deposits in the interbank eurodollar
market at which Holder prices loans on the date on which the LIBOR Rate is
established. The rate of interest charged under this Note with respect to any
selection of any of the LIBOR Rate Options shall be the selected LIBOR Rate
Option on the Effective Date of the Rate Selection Notice, and shall continue
to be the same rate of interest, without daily adjustment, until the maturity
of the selected LIBOR Rate Option has fully elapsed or the Rate Selection
Notice has been terminated as otherwise provided herein. The LIBOR Rate Option
applicable to new selections shall be the rate of interest of the selected
LIBOR Rate Option on the Effective Date of the Rate Selection Notice. In the
event that Holder shall have determined that the dollar deposits in an amount
approximately equal to the portion of the Principal Amount to which any of the
LIBOR Rate Options apply are not available to Holder at such time in the
interbank eurodollar market, or that reasonable means within the customary
operating practices of Holder do not exist for ascertaining a LIBOR Rate, or if
any change in any law or regulation or in the interpretation thereof by any
governmental authority charged with the administration or interpretation
thereof shall make in unlawful for Holder to make or maintain LIBOR Rates with
respect to the principal balance hereof or any portion thereof or to fund any
portion of the principal advanced hereunder in the interbank eurodollar market
then, Holder shall promptly notify Maker and thereafter such portion of the
principal balance hereof shall bear interest at the Floating Rate until such
time, if any, as a LIBOR Rate loan can be made by Holder to Maker, following
which Holder shall be entitled to the selection of the LIBOR Rate Options as
provided in this Note.
(l) "Minimum Notice Period" means a period commencing no later
than 10:00 a.m. Atlanta, Georgia time three (3) Business Days prior to the
Effective Date of a Fixed Rate Advance.
(m) "Prime Rate" shall be the per annum rate announced by Payee
from time to time as its Prime Rate and as one of the several interest rate
bases used by Payee. Payee lends at rates both above and below the Prime Rate
and is not represented or intended to be the lowest or most favorable rate of
interest offered by Payee. If, and to the extent and from time to time, the
Prime Rate of Payee increases or decreases, then the Prime Rate under this Note
shall be corresponding increased or decreased, such increase or decrease
hereunder to be effective as of the date on which such increase or decrease of
the Prime Rate of Payee occurs. The Prime Rate in effect at the end of each
day shall be the Prime Rate utilized for purposes of calculating interest under
this Note for such day. In the event that Payee shall abolish or abandon the
practice of establishing its Prime Rate, Holder shall designate a comparable
reference rate which shall be deemed to be the Prime Rate hereunder.
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<PAGE> 59
(n) "Principal Amount" means the principal amount outstanding from
time to time under this Note.
(o) "Rate Option" means the rate per annum equal to either (i) the
Floating Rate or (ii) the Eurodollar Rate.
(p) "Rate Selection Notice" means a written or telephonic notice
(such telephonic notice to be immediately confirmed by written or telefaxed
notice) providing irrevocable notice by the Maker to the Payee specifying (i)
the Principal Amount which shall be governed by the Eurodollar Rate, (ii) the
Eurodollar Interest Period applicable to each such amount to be governed by the
Eurodollar Rate, and (iii) the Effective Date of each such Eurodollar Rate
selection.
(q) "Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to Reserve Requirements applicable to member banks of the
Federal Reserve System.
(r) "Reserve Requirement" means, with respect to a Eurodollar
Interest Period, the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves and taking into account any
transitional adjustments or scheduled changes in reserve requirements during
such Eurodollar Interest Period) which is imposed under Regulation D on
non-personal time deposits of $100,000.00 or more with a maturity date equal to
that on Eurocurrency liabilities.
3. FLOATING RATE BORROWING. Except as provided in Section 4
below, this Note shall bear interest at the rate per annum equal to the
Floating Rate and, therefore, the initial rate of interest as of the date
hereof, expressed in simple interest terms, is 8.25% per annum. If at any time
or from time to time the Floating Rate increases or decreases, then the rate of
interest hereunder shall be correspondingly increased or decreased effective on
the date of which such increase or decrease of such Floating Rate takes effect.
4. SELECTION OF FIXED RATE ADVANCE. Subject to the terms and
conditions of this Note, Maker may elect from time to time to pay interest at a
rate per annum equal to the Eurodollar Rate rather than the rate per annum
equal to the Floating Rate, and for a Eurodollar Interest Period selected
hereunder for all or any outstanding portion of the Note (subject to the
provision of Paragraph 5 below) by giving the Holder the appropriate Rate
Selection Notice in not less than the Minimum Notice Period applicable thereto.
The Principal Amount of each Fixed Rate Advance shall bear interest from and
including the first day of the Eurodollar Interest Period applicable thereto
and during such Eurodollar Interest Period. Except in accordance with Section
7 hereof, the Rate Option applicable to such Fixed Rate Advance shall not be
changed by the Maker. Maker may select a new Eurodollar Interest Period and
Eurodollar Rate to apply to an outstanding Fixed Rate Advance, effective as of
the last day of the existing Eurodollar Interest Period applicable to such
Fixed Rate Advance, by giving a Rate Selection Notice in not less than the
Minimum Notice Period and subject to the
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<PAGE> 60
minimum advance amount provisions applicable to the Fixed Rate Advance
selected. If at the end of a Eurodollar Interest Period for an outstanding
Fixed Rate Advance, the Maker fails to select a new Eurodollar Rate and new
Eurodollar Interest Period, then such Advance shall be a Floating Rate Advance
on and after the last day of such existing Eurodollar Interest Period until
paid or until the Effective Date of a new Rate Option with respect thereto
selected by the Maker. An outstanding Floating Rate Advance can be converted
to a Fixed Rate Advance at any time by providing a Rate Selection Notice (and
subject to the provisions of Paragraph 5 below). The Maker may not select a
Fixed Rate Advance for any Advance if, on the date of the Rate Selection Notice
or the Effective Date of such selection, there exists an Event of Default.
5. RESTRICTIONS ON LOANS. The amount of any Fixed Rate Advance
pursuant to this Note shall be in a minimum amount of $500,000.00.
6. TELEPHONIC NOTICES. Maker hereby authorizes the Payee to
extend Advances and effect Rate Option selections based on telephonic notices
made by any one of the following (or such other persons as Borrower may
designate in writing from time to time to Lender):
Donald E. Ellis, Jr.
Jorge Cora
The Maker agrees to deliver promptly to Payee a written confirmation of each
telephone notice signed by an authorized officer of Maker. If the written
confirmation differs in any material respect from the action taken by the
Payee, the records of the Payee shall govern absent manifest error.
7. YIELD PROTECTION. With respect only to interest calculated at
the Fixed Rate, if any existing or future law, governmental rule, policy,
guideline, regulation or directive, whether or not having the force of law, or
compliance of the Payee with such, (i) subjects the Payee to any tax, duty,
charge or withholding on or from payments due from the Maker (excluding U.S.
taxation of the overall net income of the Payee), or changes the basis of
taxation of payment to the Payee in respect of the Indebtedness, or (ii)
imposes or increases or deems applicable any reserve, assessment (other than
reserves and assessments included in the Reserve Requirement with respect to
Fixed Rate Advances), special deposit, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
the Payee (other than reserves and assessments taken into account in
determining the interest rate applicable to Fixed Rate Advances), or (iii)
imposes any other condition the result of which is to increase the cost to the
Payee of making, funding or maintaining U.S. dollar loans or reduces any amount
receivable by the Payee in connection with U.S. dollar loans, or requires the
Payee to make any payment calculated by reference to the amount of loans held
or interest received by it, by an amount deemed material by the Payee, or (iv)
affects the amount of capital required or expected to be maintained by the
Payee or any corporation controlling the Payee and the Payee determines that
the amount of capital required is increased by or based upon the existence of
the Loan or any of the Loan Documents or its
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<PAGE> 61
obligation to make the Loan hereunder or of commitments of this type, then
within 15 days of demand by the Payee, Maker shall pay the Payee that portion
of such increased expense incurred (including, in the case of Paragraph 7(iv),
any reduction in the rate of return on capital to an amount below that which it
could have achieved but for such change in regulation after taking into account
Payee's policies as to capital adequacy) or the amount of reduction in an
amount received which the Payee determines is attributable to making, funding
and maintaining the Loan. A certificate of Payee is to the amounts payable
pursuant to this Paragraph 7 (which certificate shall reflect in reasonable
detail the method and basis for the calculation thereof) submitted to Maker
shall, absent manifest error, be final and binding upon all of the parties
hereto. Payee will give Maker notice that Payee has determined that amounts
are due and payable pursuant to this Paragraph 7 within a reasonable time after
such determination by Payee. Payee agrees that the determination of any such
increased expense incurred or in the amount of reduction in the amount received
shall be consistent with such determination made with respect to other loans of
Payee which are similarly structured, of a similar amount and for a similar
purpose.
8. (a) AVAILABILITY OF INTEREST RATE. If the Payee
determines that (i) maintenance of the Fixed Rate Advances would violate any
applicable law, rule, regulation, or directive, whether or not having the force
of law, (ii) deposits of a type and maturity appropriate to match fund a Fixed
Rate Advance are not available, or (iii) a Eurodollar Rate does not accurately
reflect the cost of making or maintaining a Fixed Rate Advance, then the Payee
shall suspend the availability of the affected LIBOR Rate Option and require
any Fixed Rate Advances outstanding under an affected LIBOR Rate Option to be
converted to an unaffected Rate Option; provided, however, with respect to the
circumstance described above in clause (iii) of this Section 8(a) only, the
Fixed Rate shall be converted to an unaffected Rate Option at the end of the
Eurodollar Interest Period applicable to such Fixed Rate Advance. Subject to
the terms and conditions of this Note, including the minimum borrowing
provisions applicable to the Fixed Rate Advance for which a new Rate Option is
selected, the Maker may select, by giving a Rate Selection Notice in not less
than the Minimum Notice Period, any unaffected Rate Option to apply to such
affected Advances. If the Maker fails to select a new Rate Option, the
affected Advances shall be Floating Rate Advances.
(b) FAILURE TO PAY OR BORROW ON CERTAIN DATES. If any payment of
a Fixed Rate Advance occurs on a date which is not the last day of the
applicable Eurodollar Interest Period, whether because of acceleration,
prepayment or otherwise, or a Fixed Rate Advance is not made on the date
specified by the Maker for any reason other than a default by the Payee, the
Maker will indemnify the Payee for any loss or cost incurred by Payee resulting
therefrom, including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the Fixed Rate Advance.
(c) BANK CERTIFICATES; SURVIVAL OF INDEMNITY. A certificate of
the Payee as to the amount due under Sections 7 and 8(b) shall be final,
conclusive and binding on the Maker in the absence of manifest error.
Determination of amounts payable under such Sections 7 and 8(b) in connection
with a Fixed Rate Advance shall be calculated as though the Holder funded its
Fixed Rate Advance through the purchase of a deposit of the type and
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<PAGE> 62
maturity corresponding to the deposit used as a reference in determining the
Eurodollar Rate applicable to such Fixed Rate Advance, whether in fact that is
the case or not. Unless otherwise provided herein, the amount specified in the
certificate shall be payable on demand after receipt by the Maker of the
certificate. The obligations under Section 7 and 8(b) shall survive for a
period of six (6) months following repayment of the Loan.
9. PAYMENTS OF INTEREST. Accrued and unpaid interest only shall
be due and payable on the last day of each calendar month commencing on October
31, 1996 and continuing through and including September 30, 1998.
Interest shall be calculated on a 360 day year basis for the actual
number of days elapsed. If any payment of principal or interest hereunder
would become due and payable on a day which is not a Business Day, then such
payment shall be due and payable on the next succeeding Business Day.
10. PAYMENT OF PRINCIPAL. If not sooner paid (subject to the
restrictions on prepayment contained in the Loan Documents) the entire
outstanding principal balance of this Note shall be due and payable in full on
September 30, 1998.
11. APPLICATION OF PAYMENTS. If any permitted payments or
prepayments are received when no Event of Default exists hereunder or under any
of the Loan Documents, and if any such payments do not fully pay all sums
evidenced by this Note, then such payment first shall be applied to the payment
of late charges and other fees payable under this Note or the Loan Documents,
then to accrued and unpaid interest under this Note and, then, the balance of
such payment shall be applied to the outstanding principal balance of this Note
in the following order of application:
(a) The Principal Amount accruing interest at the Floating Rate at
the time of such prepayment; and
(b) The Principal Amount accruing interest at the Eurodollar Rate
as of the date of such prepayment in the order of the maturity dates of the
Eurodollar Interest Periods in effect at such time.
12. FACILITY. The loan evidenced by this Note is governed by the
terms of the Loan Agreement whereby advances of principal under this Note shall
be made pursuant to and subject to the Loan Agreement.
13. PREPAYMENT. Maker may from time to time, pay all or any
portion of outstanding Floating Rate Advances. A Fixed Rate Advance may not be
paid prior to the last day of the applicable Eurodollar Interest Period unless,
at the time of such prepayment, Maker pays to Holder all costs associated with
the early termination of such Fixed Rate Advance as provided in Section 8(b)
herein.
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14. LATE CHARGE. A late charge shall be due and payable in the
amount of five percent (5%) of the amount of any installment or payment of
interest and/or principal not paid within ten (10) days of the date on which
such installment or payment was due. Holder shall have no obligation to accept
any such delinquent payment of principal and/or interest without the
accompanying late charge, and the acceptance by Holder of such delinquent
payment without the accompanying late charge shall not constitute a waiver by
Holder of the right to enforce and collect such late charge. Maker
acknowledges and agrees that the late charge herein provided is not a charge in
the nature of interest imposed for the use of money advanced under this Note;
rather, the late charge is imposed to compensate Holder for the expense,
inconvenience and economic frustration experienced by Holder as a result of
Maker's failure to make timely payments due hereunder, and is a reasonable
forecast and estimate of Holder's actual damages and loss on account of such
delinquent payment.
15. DEFAULT AND ACCELERATION. It is hereby expressly agreed that
should default occur in any payment of principal or interest stipulated, or
should any other Event of Default occur, then, and in any such event, the
outstanding principal balance of the indebtedness evidenced hereby, and any
other sums advanced hereunder or under the Loan Documents (hereinafter
defined), together with all accrued and unpaid interest, at the option of
Holder and without notice to Maker except as otherwise provided herein or in
the Loan Documents, shall at once become due and payable and may be collected
forthwith, regardless of the stipulated date of maturity. Interest shall
accrue on each Advance at the applicable Default Rate from maturity, or sooner
following the occurrence of a default hereunder and after the expiration date
of any period provided for the curing of such default and for so long as such
default continues, regardless of whether or not there has been an acceleration
of the indebtedness evidenced hereby as set forth herein. All such interest at
the Default Rate shall be paid at the time of and as a condition precedent to
the curing of any such default should Maker have the right to cure such
default. Time is of the essence of this Note. In the event this Note, or any
part thereof, is collected by or through an attorney-at-law, Maker agrees to
pay all costs of collection including, but not limited to, reasonable
attorneys' fees actually incurred.
16. WAIVERS.
(a) Except as expressly required herein or in the Loan Documents,
presentment for payment, demand, protest and notice of demand, protest and
non-payment and all other notices, except for such notices (if any) of default
provided to be given hereunder or under any of the Loan Documents, are hereby
waived by Maker. No failure to accelerate the debt evidenced hereby by reason
of default hereunder, acceptance of a past due installment, or indulgences
granted from time to time shall be construed (i) as a novation of this Note or
as a reinstatement of the indebtedness evidenced hereby or as a waiver of such
right of acceleration or of the right of Holder thereafter to insist upon
strict compliance with the terms of this Note, or (ii) to prevent the exercise
of such right of acceleration or any other right granted hereunder or by the
laws of the State of Georgia; and Maker hereby expressly waives the benefit of
any statute or rule of law or equity now provided, or which may hereafter be
provided, which would produce a result contrary to or in conflict with the
foregoing. No extension of the time
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<PAGE> 64
for the payment of this Note or any installment due hereunder, made by
agreement with any person now or hereafter liable for the payment of this Note,
shall operate to release, discharge, modify, change or affect the original
liability of Maker under this Note, either in whole or in part, unless Holder
agrees otherwise in writing. This Note may not be changed orally, but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
(b) Maker hereby waives and renounces for itself, its heirs,
successors and assigns, all rights to the benefit of any statute of limitations
and any moratorium, reinstatement, marshalling, forbearance, valuation, stay,
extension, redemption, appraisement, exemption and homestead now provided, or
which may hereafter be provided by the Constitution and laws of the United
States of America and of any state thereof, both as to itself and in and to all
of its property, real and personal, against the enforcement and collection of
the obligations evidenced by this Note. Maker hereby transfers, conveys and
assigns to Holder a sufficient amount of such homestead or exemption as may be
set apart in bankruptcy, to pay this Note in full, with all costs of
collection, and does hereby direct any trustee in bankruptcy having possession
of such homestead or exemption to deliver to Holder a sufficient amount of
property or money set apart as exempt to pay the indebtedness evidenced hereby,
or any renewal thereof, and does hereby appoint Holder the attorney-in-fact for
Maker to claim any and all homestead exemptions allowed by law.
17. GOVERNING LAW. This Note is intended as a contract under and
shall be construed and enforceable in accordance with the laws of the State of
Georgia.
18. DEFINITIONS. As used herein, the terms "Maker" and "Holder"
shall be deemed to include their respective heirs, successors, legal
representatives and assigns, whether by voluntary action of the parties or by
operation of law. In the event that more than one person, firm or entity is a
Maker hereunder, then all references to "Maker" shall be deemed to refer
equally to each of said persons, firms, or entities, all of whom shall be
jointly and severally liable for all of the obligations of Maker hereunder.
19. LEGAL LIMITATIONS. It is the express intent hereof that the
undersigned not pay and the Holder not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be legally paid by the
undersigned under applicable law. In no event, whether by reason of demand for
payment or acceleration of the maturity of the Note or otherwise, shall the
interest contracted for, charged or received by Holder hereunder or otherwise
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to Holder in
excess of the maximum lawful amount permitted under applicable law, the
interest payable to Holder shall be reduced automatically to the maximum amount
permitted under applicable law. If Holder shall ever receive anything of value
deemed interest under applicable law which would apart from this provision be
in excess of the maximum lawful amount, an amount equal to any amount which
would have been excessive interest shall be applied to the reduction of the
principal amount owing on the Note in the inverse order of its maturity and not
to the payment of interest, or if such amount which would have been excessive
interest exceeds the unpaid
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principal balance of the Note, such excess shall be refunded to Maker. All
interest paid or agreed to be paid to Holder shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the
full stated term (including any renewal or extension) of such indebtedness so
that the amount of interest on account of such indebtedness does not exceed the
maximum permitted by applicable law. The provisions of this paragraph shall
control all existing and future agreements between Maker and Holder.
20. ARBITRATION. Any controversy or claim between or among the
parties hereto including but not limited to those arising out of or relating to
this Note or any related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by binding arbitration
in accordance with the Federal Arbitration Act (or if not applicable, the
applicable state law), the Rules of Practice and Procedure for the Arbitration
of Commercial Disputes or Judicial Arbitration and Mediation Services, Inc.
("J.A.M.S."), and the "Special Rules" set forth below. In the event of any
inconsistency, the Special Rules shall control. Judgment upon any arbitration
award may be entered in any court having jurisdiction. Any party to this Note
may bring an action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim in which this Note applies in any court
having jurisdiction over such action.
21. SPECIAL RULES. The arbitration shall be conducted in the city
of Maker's domicile at the time of this Note's execution and administered by
J.A.M.S., who will appoint an arbitrator; if J.A.M.S. is unable or legally
precluded from administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be commenced within
ninety (90) days of the demand for arbitration; further the arbitrator shall
only, upon a showing of cause, be permitted to extend the commencement of such
hearing for an additional sixty (60) days.
22. RESERVATION OF RIGHTS. Nothing in this Note shall be deemed
to (i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Note; or (ii) be a
waiver by the Holder of the protection afforded to it by 12 U.S.C. Section 91
or any substantially equivalent state law; or (iii) limit the right of the
Holder hereto (a) to exercise self help remedies such as (but not limited to)
setoff, or (b) to foreclose against any real or personal property collateral,
or (c) to obtain from a court provisional or ancillary remedies such as (but
not limited to) injunctive relief, writ of possession or the appointment of a
receiver. The Holder may exercise such self help rights, foreclosure upon such
property, or obtain such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought pursuant to this Note.
Neither the exercise or self help remedies nor the institution or maintenance
of an action for foreclosure or provisional or ancillary remedies shall
constitute a waiver of the right of any party, including the claimant in such
action, to arbitrate the merits of the controversy or claim occasioning resort
to such remedies. Nothing in this Note shall be deemed to limit the right of
Maker to seek injunctive relief.
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23. TITLES. The titles of sections or paragraphs herein are used
for the convenience of the parties only and neither amplify, modify or alter in
any way the provisions of this instrument.
IN WITNESS WHEREOF, Maker has executed this Note under seal on the
date first above written.
MAKER:
-----
THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC., a Georgia
corporation
By:
---------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
-----------------------------
Tony G. Mills, Secretary
(CORPORATE SEAL)
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EXHIBIT A-3
NATIONSBANK(R)
PROMISSORY NOTE
(TERM NOTE-FIXED RATE)
$_________________________
Date: ___________, 1996
Atlanta, Georgia
1. PROMISE TO PAY. FOR VALUE RECEIVED, the undersigned, THE
PROFIT RECOVERY GROUP INTERNATIONAL, INC., a Georgia corporation (hereinafter
referred to as "Maker"), promises to pay to the order of NATIONSBANK, N.A.
(SOUTH), a national bank (hereinafter referred to as "Payee"; Payee and any
subsequent holder of all or any part interest in this Note being hereinafter
referred to collectively as "Holder"), at the following address:
NationsBank, N.A. (South)
600 Peachtree Street, N.E.
19th Floor
Atlanta, Georgia 30308
Attn: Gary L. Young, Senior Vice President
or at any such other place as Holder may designate to Maker in writing from
time to time, the principal sum of ___________ AND NO/100THS DOLLARS
($______________.00), or so much thereof as shall be disbursed hereunder and
shall from time to time be outstanding and unpaid, together with interest
thereon at the rates hereinafter set forth (subject to adjustment as provided
below), in lawful money of the United States of America, which at the time of
payment shall be legal tender in payment of all debts and dues, public and
private, such principal and interest to be paid in the manner hereinafter
provided. This Promissory Note (the "Note") is executed and delivered pursuant
to that certain Loan and Security Agreement, dated _________________, among
Payee, Maker and certain affiliates of Maker (hereinafter, together with all
supplements and amendments thereto, the "Loan Agreement"). This Note is a Term
Note referred to in, and is issued pursuant to, the Loan Agreement, and is
entitled to all of the benefits and security of the Loan Agreement. All of the
terms, covenants and conditions of the Loan Agreement and all other instruments
evidencing or securing the indebtedness hereunder are hereby made a part of
this Note and are deemed incorporated herein in full. All capitalized terms
used herein, unless otherwise specifically defined in this Note, shall have the
meanings ascribed to them in the Loan Agreement.
2. DEFINITIONS. As used herein, the following terms shall have
the indicated definitions:
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(a) "Business Day" means any day whereon banks are open for
business in Atlanta, Georgia and, with respect to borrowing, payment or rate
selection of the Fixed Rate or a Eurodollar Interest Period, any day whereon
banks are open for business in both Atlanta, Georgia and New York, New York and
whereon dealings in U.S. dollars are carried on in the London interbank market.
(b) "Default Rate" means [the rate of interest specified in
Section 3] plus 2% per annum.
(c) "Event of Default" means an Event of Default as that term is
defined in the Loan Agreement.
3. INTEREST RATE. This Note shall bear interest at the rate of
________ percent (___%) per annum.
4. PAYMENTS OF PRINCIPAL AND INTEREST. Commencing one (1) month
from the date of this Note and continuing on the same day of each calendar
month thereafter through and including [the month which is 48 months from the
date of the Note], there shall be due and payable equal monthly installments of
$_______________.
Interest shall be calculated on a 360 day year basis for the actual
number of days elapsed. If any payment of principal or interest hereunder
would become due and payable on a day which is not a Business Day, then such
payment shall be due and payable on the next succeeding Business Day.
5. MATURITY DATE. If not sooner paid (subject to the
restrictions on prepayment contained in the Loan Documents) the entire
outstanding principal balance of this Note shall be due and payable in full 48
months from the date of this Note.
6. APPLICATION OF PAYMENTS. If any permitted payments or
prepayments are received when no Event of Default exists hereunder or under any
of the Loan Documents, and if any such payments do not fully pay all sums
evidenced by this Note, then such payment first shall be applied to the payment
of late charges and other fees payable under this Note or the Loan Documents,
then to accrued and unpaid interest under this Note and, then, to the
outstanding principal balance of this Note.
7. FACILITY. The loan made pursuant to this Note is governed by
the terms of the Loan Agreement whereby the loan evidenced by this Note shall
be made pursuant to and subject to the Loan Agreement.
8. PREPAYMENT. Maker may, from time to time, pay all or any
portion this Note without prepayment premium or penalty. Following any partial
prepayment of this Note, following the date of such prepayment, equal monthly
installments of principal and interest shall be due and payable based upon a
reamortization of the outstanding principal balance of this Note following such
prepayment over the number of monthly installments payable between
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<PAGE> 69
such date and the maturity date of this Note and utilizing the rate of interest
set forth in this Note.
9. LATE CHARGE. A late charge shall be due and payable in the
amount of five percent (5%) of the amount of any installment or payment of
interest and/or principal not paid within ten (10) days of the date on which
such installment or payment was due. Holder shall have no obligation to accept
any such delinquent payment of principal and/or interest without the
accompanying late charge, and the acceptance by Holder of such delinquent
payment without the accompanying late charge shall not constitute a waiver by
Holder of the right to enforce and collect such late charge. Maker
acknowledges and agrees that the late charge herein provided is not a charge in
the nature of interest imposed for the use of money advanced under this Note;
rather, the late charge is imposed to compensate Holder for the expense,
inconvenience and economic frustration experienced by Holder as a result of
Maker's failure to make timely payments due hereunder, and is a reasonable
forecast and estimate of Holder's actual damages and loss on account of such
delinquent payment.
10. DEFAULT AND ACCELERATION. It is hereby expressly agreed that
should default occur in any payment of principal or interest stipulated, or
should any other Event of Default occur, then, and in any such event, the
outstanding principal balance of the indebtedness evidenced hereby, and any
other sums advanced hereunder or under the Loan Documents (hereinafter
defined), together with all accrued and unpaid interest, at the option of
Holder and without notice to Maker except as otherwise provided herein or in
the Loan Documents, shall at once become due and payable and may be collected
forthwith, regardless of the stipulated date of maturity. Interest shall
accrue at the applicable Default Rate from maturity, or sooner following the
occurrence of a default hereunder and after the expiration date of any period
provided for the curing of such default and for so long as such default
continues, regardless of whether or not there has been an acceleration of the
indebtedness evidenced hereby as set forth herein. All such interest at the
Default Rate shall be paid at the time of and as a condition precedent to the
curing of any such default should Maker have the right to cure such default.
Time is of the essence of this Note. In the event this Note, or any part
thereof, is collected by or through an attorney-at-law, Maker agrees to pay all
costs of collection including, but not limited to, reasonable attorneys' fees
actually incurred.
11. WAIVERS.
(a) Except as expressly required herein or in the Loan Documents,
presentment for payment, demand, protest and notice of demand, protest and
non-payment and all other notices, except for such notices (if any) of default
provided to be given hereunder or under any of the Loan Documents, are hereby
waived by Maker. No failure to accelerate the debt evidenced hereby by reason
of default hereunder, acceptance of a past due installment, or indulgences
granted from time to time shall be construed (i) as a novation of this Note or
as a reinstatement of the indebtedness evidenced hereby or as a waiver of such
right of acceleration or of the right of Holder thereafter to insist upon
strict compliance with the terms of this Note, or (ii) to prevent the exercise
of such right of acceleration or any other right granted hereunder or by the
laws of the State of Georgia; and Maker hereby expressly waives the benefit of
any
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<PAGE> 70
statute or rule of law or equity now provided, or which may hereafter be
provided, which would produce a result contrary to or in conflict with the
foregoing. No extension of the time for the payment of this Note or any
installment due hereunder, made by agreement with any person now or hereafter
liable for the payment of this Note, shall operate to release, discharge,
modify, change or affect the original liability of Maker under this Note,
either in whole or in part, unless Holder agrees otherwise in writing. This
Note may not be changed orally, but only by an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification or
discharge is sought.
(b) Maker hereby waives and renounces for itself, its heirs,
successors and assigns, all rights to the benefit of any statute of limitations
and any moratorium, reinstatement, marshalling, forbearance, valuation, stay,
extension, redemption, appraisement, exemption and homestead now provided, or
which may hereafter be provided by the Constitution and laws of the United
States of America and of any state thereof, both as to itself and in and to all
of its property, real and personal, against the enforcement and collection of
the obligations evidenced by this Note. Maker hereby transfers, conveys and
assigns to Holder a sufficient amount of such homestead or exemption as may be
set apart in bankruptcy, to pay this Note in full, with all costs of
collection, and does hereby direct any trustee in bankruptcy having possession
of such homestead or exemption to deliver to Holder a sufficient amount of
property or money set apart as exempt to pay the indebtedness evidenced hereby,
or any renewal thereof, and does hereby appoint Holder the attorney-in-fact for
Maker to claim any and all homestead exemptions allowed by law.
12. GOVERNING LAW. This Note is intended as a contract under and
shall be construed and enforceable in accordance with the laws of the State of
Georgia.
13. DEFINITIONS. As used herein, the terms "Maker" and "Holder"
shall be deemed to include their respective heirs, successors, legal
representatives and assigns, whether by voluntary action of the parties or by
operation of law. In the event that more than one person, firm or entity is a
Maker hereunder, then all references to "Maker" shall be deemed to refer
equally to each of said persons, firms, or entities, all of whom shall be
jointly and severally liable for all of the obligations of Maker hereunder.
14. LEGAL LIMITATIONS. It is the express intent hereof that the
undersigned not pay and the Holder not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be legally paid by the
undersigned under applicable law. In no event, whether by reason of demand for
payment or acceleration of the maturity of the Note or otherwise, shall the
interest contracted for, charged or received by Holder hereunder or otherwise
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to Holder in
excess of the maximum lawful amount permitted under applicable law, the
interest payable to Holder shall be reduced automatically to the maximum amount
permitted under applicable law. If Holder shall ever receive anything of value
deemed interest under applicable law which would apart from this provision be
in excess of the maximum lawful amount, an amount equal to any amount which
would have been excessive interest shall be applied to the reduction of the
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<PAGE> 71
principal amount owing on the Note in the inverse order of its maturity and not
to the payment of interest, or if such amount which would have been excessive
interest exceeds the unpaid principal balance of the Note, such excess shall be
refunded to Maker. All interest paid or agreed to be paid to Holder shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full stated term (including any renewal or extension) of
such indebtedness so that the amount of interest on account of such
indebtedness does not exceed the maximum permitted by applicable law. The
provisions of this paragraph shall control all existing and future agreements
between Maker and Holder.
15. ARBITRATION. Any controversy or claim between or among the
parties hereto including but not limited to those arising out of or relating to
this Note or any related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by binding arbitration
in accordance with the Federal Arbitration Act (or if not applicable, the
applicable state law), the Rules of Practice and Procedure for the Arbitration
of Commercial Disputes or Judicial Arbitration and Mediation Services, Inc.
("J.A.M.S."), and the "Special Rules" set forth below. In the event of any
inconsistency, the Special Rules shall control. Judgment upon any arbitration
award may be entered in any court having jurisdiction. Any party to this Note
may bring an action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim in which this Note applies in any court
having jurisdiction over such action.
16. SPECIAL RULES. The arbitration shall be conducted in the city
of Maker's domicile at the time of this Note's execution and administered by
J.A.M.S., who will appoint an arbitrator; if J.A.M.S. is unable or legally
precluded from administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be commenced within
ninety (90) days of the demand for arbitration; further the arbitrator shall
only, upon a showing of cause, be permitted to extend the commencement of such
hearing for an additional sixty (60) days.
17. RESERVATION OF RIGHTS. Nothing in this Note shall be deemed
to (i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Note; or (ii) be a
waiver by the Holder of the protection afforded to it by 12 U.S.C. Section 91
or any substantially equivalent state law; or (iii) limit the right of the
Holder hereto (a) to exercise self help remedies such as (but not limited to)
setoff, or (b) to foreclose against any real or personal property collateral,
or (c) to obtain from a court provisional or ancillary remedies such as (but
not limited to) injunctive relief, writ of possession or the appointment of a
receiver. The Holder may exercise such self help rights, foreclosure upon such
property, or obtain such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought pursuant to this Note.
Neither the exercise or self help remedies nor the institution or maintenance
of an action for foreclosure or provisional or ancillary remedies shall
constitute a waiver of the right of any party, including the claimant in such
action, to arbitrate the merits of the controversy or claim occasioning resort
to such remedies. Nothing in this Note shall be deemed to limit the right of
Maker to seek injunctive relief.
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18. TITLES. The titles of sections or paragraphs herein are used
for the convenience of the parties only and neither amplify, modify or alter in
any way the provisions of this instrument.
IN WITNESS WHEREOF, Maker has executed this Note under seal on the date
first above written
MAKER:
-----
THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC., a George
corporation
By:
-----------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
-------------------------------
Tony G. Mills, Secretary
(CORPORATE SEAL)
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<PAGE> 73
EXHIBIT B-1
BORROWER'S BUSINESS LOCATIONS
(1) Borrower currently has the following business locations, and
no others:
2300 Windy Ridge Parkway
Suite 100 North
Atlanta, Cobb County, Georgia 30339-8426
(2) Borrower maintains its books and records relating to Accounts
and General Intangibles at:
2300 Windy Ridge Parkway
Suite 100 North
Atlanta, Cobb County, Georgia 30339-8426
(3) Except as set forth below, during the preceding seven-year
period, Borrower has had no office, place of business or agent for process
located in any county other than as set forth above.
None
EXHIBIT B-1
<PAGE> 74
EXHIBIT B-2
OTHER BUSINESS LOCATIONS
(1) The other Loan Parties currently have the following business
locations in the United States, and no others:
<TABLE>
<S> <C>
2300 Windy Ridge Parkway 3408 Park Avenue
Suite 100 North Wantagh, New York 11793
Atlanta, Georgia 30339-8426
5007 Pacific Highway East
2501-B Southeast J Street Suite 6-0
Bentonville, Arkansas 72712 Fife, Washington 98424
3545 Waterfield Parkway 2960 Stage Plaza North
Lakeland, Florida 33803 Bartlett, Tennessee 38134
129 Broad Street Road 151 Highway 33
Manakin-Sabot, Virginia 23103 Manalapan, New Jersey 07726
420 Princeland Court 163 Citation Court, Suite 107
Corona, California 91719 Birmingham, Alabama 35209
1135 N. Mesa Drive, Suite 10 1032 Serpentine Lane, Suite 107
Mesa, Arizona 85210 Pleasanton, California 94566
4150 Alexandria Pike, Suite 119 5417 Bandera Road, Suite 608
Cold Spring, Kentucky 41076 Leon Valley, Texas 78238
3270 West Big Beaver Road, Suite 420 2880 LBJ Freeway, Suite 140
Troy, Michigan 48084-2901 Dallas, Texas 75234
4221 S. Walton Walker Blvd. MS 1471
Dallas, Texas 75236 2418 Main Street
Rockyhill, Connecticut 06067
9725 Datapoint Drive 15 Dan Road
San Antonio, Texas 78229 Canton, MA 02021-9128
303 Ninth Street 20 Federal Plaza West
North Wilkesboro, NC 28659 Youngstown, Ohio 44501
4849 Greenville Avenue 7362 University Avenue, N.E.
</TABLE>
EXHIBIT B-2
<PAGE> 75
<TABLE>
<S> <C>
Suite 1100, Box 20 Suite 200
Dallas, Texas 75206 Mineapolis, Minnesota 55432
616-A North Vermillion 60 Martin Road
Danville, Illinois 61832 #07-02 TradeMart Singapore
Singapore 239065
49-b Burns Road 180 Sheldon Drive, Unit 4
Wahroonga, NSW 2076 P. O. Box 24003
Australia Cambridge, Ontario N1R 8E6
4 Bis Rue Poirier Regus Business Centre
94160 Saint Mande Chilehaus A, Fischertwiete 2
France D-20095 Hamburg
Germany
Colina de la Gacela No. 27 Robert Lodge
Bulevares 4 Milner Street
Naucalpan. Edo.de Mex.53140 London SW3 2PU
Mexico England
</TABLE>
(2) The other Loan Parties maintain their books and records
relating to Accounts and General Intangibles at:
2300 Windy Ridge Parkway
Suite 100 North
Atlanta, Cobb County, Georgia 30339-8426
(3) Except as set forth below, during the preceding seven-year
period, the other Loan Parties have had no office, place of business or agent
for process located in any county in the State of Georgia other than as set
forth above.
None
EXHIBIT B-2
<PAGE> 76
EXHIBIT C-1
BORROWER'S CORPORATE NAMES
(1) Borrower's correct corporate name, as registered with the
Secretary of State of the State of Georgia, is:
The Profit Recovery Group International, Inc.
(2) During the preceding seven-year period, Borrower has used the
following names:
None
EXHIBIT C-1
<PAGE> 77
EXHIBIT C-2
OTHER CORPORATE NAMES
(1) The other Loan Parties' correct names, as registered with the
Secretary of State of the State of Georgia, are:
PRG International - The Profit Recovery Group International I, Inc.
PRG U.K. - The Profit Recovery Group U.K., Inc.
PRG Asia - The Profit Recovery Group Asia, Inc.
PRG Canada - The Profit Recovery Group Canada, Inc.
PRG New Zealand - The Profit Recovery Group New Zealand, Inc.
PRG Netherlands - The Profit Recovery Group Netherlands, Inc.
PRG Belgium - The Profit Recovery Group Belgium, Inc.
PRG Mexico - The Profit Recovery Group Mexico, Inc.
PRG France - The Profit Recovery Group France, Inc.
PRG Australia - The Profit Recovery Group Australia, Inc.
PRG Germany - The Profit Recovery Group Germany, Inc.
(2) During the preceding seven-year period, the other Loan Parties
have used the following additional names:
Profit Recovery Specialists, Inc.
Anwaco, Inc.
JC Ventures, Inc.
The Profit Recovery Group of the Americas, Inc.
The Profit Recovery Group Services, L.P.
The Profit Recovery Group, Inc.
The Profit Recovery Group International, Inc.
The Profit Recovery Group Canada, Inc.
Roy Greene Associates, Inc.
John Cook Associates, Inc.
Bottom Line Associates, Inc.
PRG International, Inc.
EXHIBIT C-2
<PAGE> 78
EXHIBIT D
LITIGATION
None.
EXHIBIT D
<PAGE> 79
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
NationsBank, N.A. (South)
600 Peachtree Street, N.E.
19th Floor
Atlanta, Georgia 30308
Attention: Gary L. Young, Senior Vice President
The undersigned, the Chief Financial Officer of The Profit Recovery
Group International, Inc., a Georgia corporation ("Borrower"), gives this
Certificate to NationsBank, N.A. (South) ("Lender") in accordance with the
requirements of Section 9.1(K) of that certain Loan and Security Agreement,
dated ___________________, by and between Lender and Borrower and certain
affiliated entities of Borrower (the "Loan Agreement") (capitalized terms used
in this Certificate, unless otherwise defined herein, shall have the means
ascribed to them in the Loan Agreement). Based upon my review of the financial
statements of the Loan Parties for the (month/fiscal year) ending
_________________, 19__, copies of which are attached hereto, I hereby certify
to the best of my knowledge that:
(1) The Combined Total Liabilities to Net Worth Ratio of
the Loan Parties does not exceed 1.5 to 1.0;
(2) The ratio of Funded Debt to EBITDA does not exceed
2.0 to 1.0;
(3) The Combined Debt Service Coverage Ratio of the Loan
Parties is not less than 1.5 to 1.0;
(4) The Combined Net Worth of the Loan Parties is not
less than $34,000,000.00; and
(5) The ratio of Current Assets to Current Liabilities of
the Loan Parties is not less than 1.0 to 1.0.
Very truly yours,
By: _________________________________
Chief Financial Officer
Date:_________________________
EXHIBIT E
<PAGE> 80
EXHIBIT F
OTHER LIENS
1. Security interests in certain IBM Equipment owned by The Profit
Recovery Group, Inc. in favor of IBM Credit Corporation evidenced by
four (4) UCC-1 Financing Statements, Cobb County, Georgia Records.
2. Security interests in certain computer equipment owned by The Profit
Recovery Group International, L.P. in favor of Encore Computer
Corporation evidenced by one UCC-1 Financing Statement, Cobb County,
Georgia Records.
3. A security interest in certain business equipment owned by The Profit
Recovery Group in favor of Pitney Bowes Credit Corporation evidenced
by one UCC-1 Financing Statement, Cobb County, Georgia Records.
EXHIBIT F
<PAGE> 81
EXHIBIT G
EXISTING INDEBTEDNESS
1. The obligation of PRG International to pay $1,000,000.00 plus interest
to Clyde Ellison, Jr. pursuant to the terms of an employment agreement
between PRG International and Clyde Ellison, Jr.
EXHIBIT G
<PAGE> 82
EXHIBIT H
GUARANTY
NATIONSBANK(R)
ATLANTA, GEORGIA
___________, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor
to the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through
an attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to
realize upon the security for the Liabilities and Obligations, and whether or
not Debtor is joined in any such action or actions, and whether or not notice
is given or demand is made upon Debtor.
Page 1 of 6
<PAGE> 83
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to
discontinuance of this guaranty as to any of the undersigned (including,
without limitation, any undersigned who shall become deceased, incompetent or
dissolved) only as follows: Any of the undersigned, and any person duly
authorized and acting on behalf of any of the undersigned, may give written
notice to the Lender of discontinuance of this guaranty as to the undersigned
by whom or on whose behalf such notice is given, but no such notice shall be
effective in any respect until it is actually received by the Lender and no
such action shall affect or impair the obligations hereunder of the undersigned
by whom or on whose behalf such notice is given with respect to any Liabilities
or Obligations existing at the date of receipt of such notice by the Lender,
any interest thereon or any expenses paid or incurred by the Lender in
endeavoring to collect the Liabilities or enforce the Obligations, or any part
thereof, and in enforcing this guaranty against such undersigned. Any such
notice of discontinuance by or on behalf of any of the undersigned shall not
affect or impair the obligations hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted
to any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
Page 2 of 6
<PAGE> 84
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or
refusal of Lender to thereupon commence an action, or foreclose any Collateral
within any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name
specifically given such rights, powers and benefits, but the Lender shall have
an unimpaired right, prior and superior to that of any such assignee,
transferee or holder, to enforce this guaranty for the benefit of the Lender,
as to so much of the Liabilities or Obligations as it has not sold, assigned or
transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the
obligations of the undersigned hereunder. Without limiting the generality of
the foregoing, if the Debtor is a corporation, partnership, joint venture,
trust or other form of business organization, this guaranty covers all
Liabilities and Obligations to the Lender purporting to be made on behalf of
such organization by any officer or agent of the same, without regard to the
actual authority of such officers or agent. The term "corporation" shall
include associations of all kinds and all purported corporations, whether
correctly and legally chartered and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
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<PAGE> 85
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities
and Obligations, even upon payment in full of the Liabilities and satisfaction
of the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR
THE UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO
ANY SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND
AGREES THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND
THE UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER
APPLICABLE LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID
COURTS. THE JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO
AND AGREED UPON IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN
ADDITION TO THE JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE
LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT
NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY RELATED
LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING
A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM IN WHICH THIS GUARANTY APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
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<PAGE> 86
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE
OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN NINETY (90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR
SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF
SUCH HEARING FOR AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO
(i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION
OR REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY
THE LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. Section 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER.
THE LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY,
OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE
OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL
CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH
ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT
TO SUCH REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT
OF GUARANTOR TO SEEK INJUNCTIVE RELIEF.
Notice to the Guarantor: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the contract
that makes you liable for the debt.
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<PAGE> 87
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day
and year first above written.
------------------------------
[CORPORATE SEAL]
Attest: By:
------------------------------- -----------------------------
Page 6 of 6
<PAGE> 88
NATIONSBANK(R)
PROMISSORY NOTE
$10,000,000.00
Date: ___________, 1996
Atlanta, Georgia
1. PROMISE TO PAY. FOR VALUE RECEIVED, the undersigned, THE
PROFIT RECOVERY GROUP INTERNATIONAL, INC., a Georgia corporation (hereinafter
referred to as "Maker"), promises to pay to the order of NATIONSBANK, N.A.
(SOUTH), a national bank (hereinafter referred to as "Payee"; Payee and any
subsequent holder of all or any part interest in this Note being hereinafter
referred to collectively as "Holder"), at the following address:
NationsBank, N.A. (South)
600 Peachtree Street, N.E.
19th Floor
Atlanta, Georgia 30308
Attn: Gary L. Young, Senior Vice President
or at any such other place as Holder may designate to Maker in writing from
time to time, the principal sum of TEN MILLION AND NO/100THS DOLLARS
($10,000,000.00), or so much thereof as shall be disbursed hereunder and shall
from time to time be outstanding and unpaid, together with interest thereon at
one or more of the rates hereinafter set forth (subject to adjustment and
designation of the applicable interest rate or rates as provided below), in
lawful money of the United States of America, which at the time of payment
shall be legal tender in payment of all debts and dues, public and private,
such principal and interest to be paid in the manner hereinafter provided.
This Promissory Note (the "Note") is executed and delivered pursuant to that
certain Loan and Security Agreement, dated as of even date herewith, among
Payee, Maker and certain affiliates of Maker (hereinafter, together with all
supplements and amendments thereto, the "Loan Agreement"). This Note is the
Revolver Note referred to in, and is issued pursuant to, the Loan Agreement,
and is entitled to all of the benefits and security of the Loan Agreement. All
of the terms, covenants and conditions of the Loan Agreement and all other
instruments evidencing or securing the indebtedness hereunder are hereby made a
part of this Note and are deemed incorporated herein in full. All capitalized
terms used herein, unless otherwise specifically defined in this Note, shall
have the meanings ascribed to them in the Loan Agreement.
2. DEFINITIONS. As used herein, the following terms shall have
the indicated definitions:
(a) "Advance" means a Fixed Rate Advance or a Floating Rate
Advance.
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<PAGE> 89
(b) "Business Day" means any day whereon banks are open for
business in Atlanta, Georgia and, with respect to borrowing, payment or rate
selection of a Fixed Rate Advance or a Eurodollar Interest Period, any day
whereon banks are open for business in both Atlanta, Georgia and New York, New
York and whereon dealings in U.S. dollars are carried on in the London
interbank market.
(c) "Default Rate" means (i) with respect to each Floating Rate
Advance, a rate per annum equal to the Prime Rate plus two percent (2%); and
(ii) with respect to each Fixed Rate Advance for the remainder of the
applicable Eurodollar Interest Period, a rate per annum equal to the applicable
Eurodollar Rate plus two percent (2%), and after such applicable Eurodollar
Interest Period at the rate per annum equal to the Prime Rate plus two percent
(2%).
(d) "Effective Date" means any Business Day designated by Maker in
a Rate Selection Notice as the date such rate selection shall become effective,
or the first day of Floating Rate Advance.
(e) "Eurodollar Interest Period" means, with respect to a Fixed
Rate Advance, a period of thirty (30) days, sixty (60) days, ninety (90) days
or one hundred eighty (180) days to the extent eurodollar borrowings of such or
similar periods are available, commencing on a Business Day and selected by the
Maker in its Rate Selection Notice; provided, however, such Eurodollar Interest
Period shall commence on the last day of the immediately preceding Eurodollar
Interest Period in the case of a rollover to a successive Eurodollar Interest
Period. If any Eurodollar Interest Period would otherwise end on a day which
is not a Business Day, such Eurodollar Interest Period shall end on the next
succeeding Business Day. Any Eurodollar Interest Period must end on or before
the maturity date of this Note.
(f) "Eurodollar Rate" means, with respect to a Fixed Rate Advance
for the relevant Eurodollar Interest Period, the sum of the LIBOR Rate
applicable to that Eurodollar Interest Period plus one and three-quarters
percent (1.75%) per annum, subject to adjustment from time to time as
hereinafter provided. The Eurodollar Rate shall be rounded, if necessary, to
the next higher one-sixteenth of one percent.
(g) "Event of Default" means an Event of Default as that term is
defined in the Loan Agreement.
(h) "Fixed Rate Advance" means that portion of the Principal
Amount to which the Eurodollar Rate is applicable for a particular Eurodollar
Interest Period.
(i) "Floating Rate" means a rate per annum equal to the Prime
Rate, changing when and as the Prime Rate changes.
(j) "Floating Rate Advance" means that portion of the Principal
Amount of the Note bearing interest at the Floating Rate.
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<PAGE> 90
(k) "LIBOR Rate" means the simple interest rate per annum
determined by Holder, taking into account the rates at which deposits in United
States dollars for periods of thirty (30) days, sixty (60) days, ninety (90)
days and one hundred eighty (180) days (each of the foregoing is individually
referred to as "LIBOR Rate Option") are offered in the interbank eurodollar
market, and such other factors as Holder may reasonably deem appropriate from
time to time. The LIBOR Rate is established in the discretion of Holder for
the particular indebtedness evidenced by this Note, and may not be the lowest
rate based in part upon which market for deposits in the interbank eurodollar
market at which Holder prices loans on the date on which the LIBOR Rate is
established. The rate of interest charged under this Note with respect to any
selection of any of the LIBOR Rate Options shall be the selected LIBOR Rate
Option on the Effective Date of the Rate Selection Notice, and shall continue
to be the same rate of interest, without daily adjustment, until the maturity
of the selected LIBOR Rate Option has fully elapsed or the Rate Selection
Notice has been terminated as otherwise provided herein. The LIBOR Rate Option
applicable to new selections shall be the rate of interest of the selected
LIBOR Rate Option on the Effective Date of the Rate Selection Notice. In the
event that Holder shall have determined that the dollar deposits in an amount
approximately equal to the portion of the Principal Amount to which any of the
LIBOR Rate Options apply are not available to Holder at such time in the
interbank eurodollar market, or that reasonable means within the customary
operating practices of Holder do not exist for ascertaining a LIBOR Rate, or if
any change in any law or regulation or in the interpretation thereof by any
governmental authority charged with the administration or interpretation
thereof shall make in unlawful for Holder to make or maintain LIBOR Rates with
respect to the principal balance hereof or any portion thereof or to fund any
portion of the principal advanced hereunder in the interbank eurodollar market
then, Holder shall promptly notify Maker and thereafter such portion of the
principal balance hereof shall bear interest at the Floating Rate until such
time, if any, as a LIBOR Rate loan can be made by Holder to Maker, following
which Holder shall be entitled to the selection of the LIBOR Rate Options as
provided in this Note.
(l) "Minimum Notice Period" means a period commencing no later
than 10:00 a.m. Atlanta, Georgia time three (3) Business Days prior to the
Effective Date of a Fixed Rate Advance.
(m) "Prime Rate" shall be the per annum rate announced by Payee
from time to time as its Prime Rate and as one of the several interest rate
bases used by Payee. Payee lends at rates both above and below the Prime Rate
and is not represented or intended to be the lowest or most favorable rate of
interest offered by Payee. If, and to the extent and from time to time, the
Prime Rate of Payee increases or decreases, then the Prime Rate under this Note
shall be corresponding increased or decreased, such increase or decrease
hereunder to be effective as of the date on which such increase or decrease of
the Prime Rate of Payee occurs. The Prime Rate in effect at the end of each
day shall be the Prime Rate utilized for purposes of calculating interest under
this Note for such day. In the event that Payee shall abolish or abandon the
practice of establishing its Prime Rate, Holder shall designate a comparable
reference rate which shall be deemed to be the Prime Rate hereunder.
(n) "Principal Amount" means the principal amount outstanding from
time to time under this Note.
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<PAGE> 91
(o) "Rate Option" means the rate per annum equal to either (i) the
Floating Rate or (ii) the Eurodollar Rate.
(p) "Rate Selection Notice" means a written or telephonic notice
(such telephonic notice to be immediately confirmed by written or telefaxed
notice) providing irrevocable notice by the Maker to the Payee specifying (i)
the Principal Amount which shall be governed by the Eurodollar Rate, (ii) the
Eurodollar Interest Period applicable to each such amount to be governed by the
Eurodollar Rate, and (iii) the Effective Date of each such Eurodollar Rate
selection.
(q) "Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to Reserve Requirements applicable to member banks of the
Federal Reserve System.
(r) "Reserve Requirement" means, with respect to a Eurodollar
Interest Period, the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves and taking into account any
transitional adjustments or scheduled changes in reserve requirements during
such Eurodollar Interest Period) which is imposed under Regulation D on
non-personal time deposits of $100,000.00 or more with a maturity date equal to
that on Eurocurrency liabilities.
3. FLOATING RATE BORROWING. Except as provided in Section 4
below, this Note shall bear interest at the rate per annum equal to the
Floating Rate and, therefore, the initial rate of interest as of the date
hereof, expressed in simple interest terms, is 8.25% per annum. If at any time
or from time to time the Floating Rate increases or decreases, then the rate of
interest hereunder shall be correspondingly increased or decreased effective on
the date of which such increase or decrease of such Floating Rate takes effect.
4. SELECTION OF FIXED RATE ADVANCE. Subject to the terms and
conditions of this Note, Maker may elect from time to time to pay interest at a
rate per annum equal to the Eurodollar Rate rather than the rate per annum
equal to the Floating Rate, and for a Eurodollar Interest Period selected
hereunder for all or any outstanding portion of the Note (subject to the
provision of Paragraph 5 below) by giving the Holder the appropriate Rate
Selection Notice in not less than the Minimum Notice Period applicable thereto.
The Principal Amount of each Fixed Rate Advance shall bear interest from and
including the first day of the Eurodollar Interest Period applicable thereto
and during such Eurodollar Interest Period. Except in accordance with Section
7 hereof, the Rate Option applicable to such Fixed Rate Advance shall not be
changed by the Maker. Maker may select a new Eurodollar Interest Period and
Eurodollar Rate to apply to an outstanding Fixed Rate Advance, effective as of
the last day of the existing Eurodollar Interest Period applicable to such
Fixed Rate Advance, by giving a Rate Selection Notice in not less than the
Minimum Notice Period and subject to the minimum advance amount provisions
applicable to the Fixed Rate Advance selected. If at the end of a Eurodollar
Interest Period for an outstanding Fixed Rate Advance, the Maker fails to
select a new Eurodollar Rate and new Eurodollar Interest Period, then such
Advance shall be a Floating Rate Advance on and after the last day of such
existing Eurodollar Interest
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<PAGE> 92
Period until paid or until the Effective Date of a new Rate Option with respect
thereto selected by the Maker. An outstanding Floating Rate Advance can be
converted to a Fixed Rate Advance at any time by providing a Rate Selection
Notice (and subject to the provisions of Paragraph 5 below). The Maker may not
select a Fixed Rate Advance for any Advance if, on the date of the Rate
Selection Notice or the Effective Date of such selection, there exists an Event
of Default.
5. RESTRICTIONS ON LOANS. The amount of any Fixed Rate Advance
pursuant to this Note shall be in a minimum amount of $500,000.00.
6. TELEPHONIC NOTICES. Maker hereby authorizes the Payee to
extend Advances and effect Rate Option selections based on telephonic notices
made by any one of the following (or such other persons as Borrower may
designate in writing from time to time to Lender):
Donald E. Ellis, Jr.
Jorge Cora
The Maker agrees to deliver promptly to Payee a written confirmation of each
telephone notice signed by an authorized officer of Maker. If the written
confirmation differs in any material respect from the action taken by the
Payee, the records of the Payee shall govern absent manifest error.
7. YIELD PROTECTION. With respect only to interest calculated at
the Fixed Rate, if any existing or future law, governmental rule, policy,
guideline, regulation or directive, whether or not having the force of law, or
compliance of the Payee with such, (i) subjects the Payee to any tax, duty,
charge or withholding on or from payments due from the Maker (excluding U.S.
taxation of the overall net income of the Payee), or changes the basis of
taxation of payment to the Payee in respect of the Indebtedness, or (ii)
imposes or increases or deems applicable any reserve, assessment (other than
reserves and assessments included in the Reserve Requirement with respect to
Fixed Rate Advances), special deposit, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
the Payee (other than reserves and assessments taken into account in
determining the interest rate applicable to Fixed Rate Advances), or (iii)
imposes any other condition the result of which is to increase the cost to the
Payee of making, funding or maintaining U.S. dollar loans or reduces any amount
receivable by the Payee in connection with U.S. dollar loans, or requires the
Payee to make any payment calculated by reference to the amount of loans held
or interest received by it, by an amount deemed material by the Payee, or (iv)
affects the amount of capital required or expected to be maintained by the
Payee or any corporation controlling the Payee and the Payee determines that
the amount of capital required is increased by or based upon the existence of
the Loan or any of the Loan Documents or its obligation to make the Loan
hereunder or of commitments of this type, then within 15 days of demand by the
Payee, Maker shall pay the Payee that portion of such increased expense
incurred (including, in the case of Paragraph 7(iv), any reduction in the rate
of return on capital to an amount below that which it could have achieved but
for such change in regulation after taking into account Payee's policies as to
capital adequacy) or the amount of reduction in an amount received which the
Payee determines is attributable to making, funding and maintaining the Loan.
A certificate of
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<PAGE> 93
Payee is to the amounts payable pursuant to this Paragraph 7 (which certificate
shall reflect in reasonable detail the method and basis for the calculation
thereof) submitted to Maker shall, absent manifest error, be final and binding
upon all of the parties hereto. Payee will give Maker notice that Payee has
determined that amounts are due and payable pursuant to this Paragraph 7 within
a reasonable time after such determination by Payee. Payee agrees that the
determination of any such increased expense incurred or in the amount of
reduction in the amount received shall be consistent with such determination
made with respect to other loans of Payee which are similarly structured, of a
similar amount and for a similar purpose.
8. (a) AVAILABILITY OF INTEREST RATE. If the Payee
determines that (i) maintenance of the Fixed Rate Advances would violate any
applicable law, rule, regulation, or directive, whether or not having the force
of law, (ii) deposits of a type and maturity appropriate to match fund a Fixed
Rate Advance are not available, or (iii) a Eurodollar Rate does not accurately
reflect the cost of making or maintaining a Fixed Rate Advance, then the Payee
shall suspend the availability of the affected LIBOR Rate Option and require
any Fixed Rate Advances outstanding under an affected LIBOR Rate Option to be
converted to an unaffected Rate Option; provided, however, with respect to the
circumstance described above in clause (iii) of this Section 8(a) only, the
Fixed Rate shall be converted to an unaffected Rate Option at the end of the
Eurodollar Interest Period applicable to such Fixed Rate Advance. Subject to
the terms and conditions of this Note, including the minimum borrowing
provisions applicable to the Fixed Rate Advance for which a new Rate Option is
selected, the Maker may select, by giving a Rate Selection Notice in not less
than the Minimum Notice Period, any unaffected Rate Option to apply to such
affected Advances. If the Maker fails to select a new Rate Option, the
affected Advances shall be Floating Rate Advances.
(b) FAILURE TO PAY OR BORROW ON CERTAIN DATES. If any payment of
a Fixed Rate Advance occurs on a date which is not the last day of the
applicable Eurodollar Interest Period, whether because of acceleration,
prepayment or otherwise, or a Fixed Rate Advance is not made on the date
specified by the Maker for any reason other than a default by the Payee, the
Maker will indemnify the Payee for any loss or cost incurred by Payee resulting
therefrom, including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the Fixed Rate Advance.
(c) BANK CERTIFICATES; SURVIVAL OF INDEMNITY. A certificate of
the Payee as to the amount due under Sections 7 and 8(b) shall be final,
conclusive and binding on the Maker in the absence of manifest error.
Determination of amounts payable under such Sections 7 and 8(b) in connection
with a Fixed Rate Advance shall be calculated as though the Holder funded its
Fixed Rate Advance through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Fixed Rate Advance, whether in fact that is the case or
not. Unless otherwise provided herein, the amount specified in the certificate
shall be payable on demand after receipt by the Maker of the certificate. The
obligations under Section 7 and 8(b) shall survive for a period of six (6)
months following repayment of the Loan.
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9. PAYMENTS OF INTEREST. Accrued and unpaid interest only shall
be due and payable on the last day of each calendar month commencing on October
31, 1996 and continuing through and including September 30, 1998.
Interest shall be calculated on a 360 day year basis for the actual
number of days elapsed. If any payment of principal or interest hereunder
would become due and payable on a day which is not a Business Day, then such
payment shall be due and payable on the next succeeding Business Day.
10. PAYMENT OF PRINCIPAL. If not sooner paid (subject to the
restrictions on prepayment contained in the Loan Documents) the entire
outstanding principal balance of this Note shall be due and payable in full on
September 30, 1998.
11. APPLICATION OF PAYMENTS. If any permitted payments or
prepayments are received when no Event of Default exists hereunder or under any
of the Loan Documents, and if any such payments do not fully pay all sums
evidenced by this Note, then such payment first shall be applied to the payment
of late charges and other fees payable under this Note or the Loan Documents,
then to accrued and unpaid interest under this Note and, then, the balance of
such payment shall be applied to the outstanding principal balance of this Note
in the following order of application:
(a) The Principal Amount accruing interest at the Floating Rate at
the time of such prepayment; and
(b) The Principal Amount accruing interest at the Eurodollar Rate
as of the date of such prepayment in the order of the maturity dates of the
Eurodollar Interest Periods in effect at such time.
12. FACILITY. The loan evidenced by this Note is governed by the
terms of the Loan Agreement whereby advances of principal under this Note shall
be made pursuant to and subject to the Loan Agreement.
13. PREPAYMENT. Maker may from time to time, pay all or any
portion of outstanding Floating Rate Advances. A Fixed Rate Advance may not be
paid prior to the last day of the applicable Eurodollar Interest Period unless,
at the time of such prepayment, Maker pays to Holder all costs associated with
the early termination of such Fixed Rate Advance as provided in Section 8(b)
herein.
14. LATE CHARGE. A late charge shall be due and payable in the
amount of five percent (5%) of the amount of any installment or payment of
interest and/or principal not paid within ten (10) days of the date on which
such installment or payment was due. Holder shall have no obligation to accept
any such delinquent payment of principal and/or interest without the
accompanying late charge, and the acceptance by Holder of such delinquent
payment without the accompanying late charge shall not constitute a waiver by
Holder of the right to enforce and collect such late charge. Maker
acknowledges and agrees that the late charge herein provided is
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<PAGE> 95
not a charge in the nature of interest imposed for the use of money advanced
under this Note; rather, the late charge is imposed to compensate Holder for
the expense, inconvenience and economic frustration experienced by Holder as a
result of Maker's failure to make timely payments due hereunder, and is a
reasonable forecast and estimate of Holder's actual damages and loss on account
of such delinquent payment.
15. DEFAULT AND ACCELERATION. It is hereby expressly agreed that
should default occur in any payment of principal or interest stipulated, or
should any other Event of Default occur, then, and in any such event, the
outstanding principal balance of the indebtedness evidenced hereby, and any
other sums advanced hereunder or under the Loan Documents (hereinafter
defined), together with all accrued and unpaid interest, at the option of
Holder and without notice to Maker except as otherwise provided herein or in
the Loan Documents, shall at once become due and payable and may be collected
forthwith, regardless of the stipulated date of maturity. Interest shall
accrue on each Advance at the applicable Default Rate from maturity, or sooner
following the occurrence of a default hereunder and after the expiration date
of any period provided for the curing of such default and for so long as such
default continues, regardless of whether or not there has been an acceleration
of the indebtedness evidenced hereby as set forth herein. All such interest at
the Default Rate shall be paid at the time of and as a condition precedent to
the curing of any such default should Maker have the right to cure such
default. Time is of the essence of this Note. In the event this Note, or any
part thereof, is collected by or through an attorney-at-law, Maker agrees to
pay all costs of collection including, but not limited to, reasonable
attorneys' fees actually incurred.
16. WAIVERS.
(a) Except as expressly required herein or in the Loan Documents,
presentment for payment, demand, protest and notice of demand, protest and
non-payment and all other notices, except for such notices (if any) of default
provided to be given hereunder or under any
8
<PAGE> 96
of the Loan Documents, are hereby waived by Maker. No failure to accelerate
the debt evidenced hereby by reason of default hereunder, acceptance of a past
due installment, or indulgences granted from time to time shall be construed
(i) as a novation of this Note or as a reinstatement of the indebtedness
evidenced hereby or as a waiver of such right of acceleration or of the right
of Holder thereafter to insist upon strict compliance with the terms of this
Note, or (ii) to prevent the exercise of such right of acceleration or any
other right granted hereunder or by the laws of the State of Georgia; and Maker
hereby expressly waives the benefit of any statute or rule of law or equity now
provided, or which may hereafter be provided, which would produce a result
contrary to or in conflict with the foregoing. No extension of the time for
the payment of this Note or any installment due hereunder, made by agreement
with any person now or hereafter liable for the payment of this Note, shall
operate to release, discharge, modify, change or affect the original liability
of Maker under this Note, either in whole or in part, unless Holder agrees
otherwise in writing. This Note may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
(b) Maker hereby waives and renounces for itself, its heirs,
successors and assigns, all rights to the benefit of any statute of limitations
and any moratorium, reinstatement, marshalling, forbearance, valuation, stay,
extension, redemption, appraisement, exemption and homestead now provided, or
which may hereafter be provided by the Constitution and laws of the United
States of America and of any state thereof, both as to itself and in and to all
of its property, real and personal, against the enforcement and collection of
the obligations evidenced by this Note. Maker hereby transfers, conveys and
assigns to Holder a sufficient amount of such homestead or exemption as may be
set apart in bankruptcy, to pay this Note in full, with all costs of
collection, and does hereby direct any trustee in bankruptcy having possession
of such homestead or exemption to deliver to Holder a sufficient amount of
property or money set apart as exempt to pay the indebtedness evidenced hereby,
or any renewal thereof, and does hereby appoint Holder the attorney-in-fact for
Maker to claim any and all homestead exemptions allowed by law.
17. GOVERNING LAW. This Note is intended as a contract under and
shall be construed and enforceable in accordance with the laws of the State of
Georgia.
18. DEFINITIONS. As used herein, the terms "Maker" and "Holder"
shall be deemed to include their respective heirs, successors, legal
representatives and assigns, whether by voluntary action of the parties or by
operation of law. In the event that more than one person, firm or entity is a
Maker hereunder, then all references to "Maker" shall be deemed to refer
equally to each of said persons, firms, or entities, all of whom shall be
jointly and severally liable for all of the obligations of Maker hereunder.
19. LEGAL LIMITATIONS. It is the express intent hereof that the
undersigned not pay and the Holder not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be legally paid by the
undersigned under applicable law. In no event, whether by reason of demand for
payment or acceleration of the maturity of the Note or otherwise, shall the
interest contracted for, charged or received by Holder hereunder or otherwise
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise
9
<PAGE> 97
be payable to Holder in excess of the maximum lawful amount permitted under
applicable law, the interest payable to Holder shall be reduced automatically
to the maximum amount permitted under applicable law. If Holder shall ever
receive anything of value deemed interest under applicable law which would
apart from this provision be in excess of the maximum lawful amount, an amount
equal to any amount which would have been excessive interest shall be applied
to the reduction of the principal amount owing on the Note in the inverse order
of its maturity and not to the payment of interest, or if such amount which
would have been excessive interest exceeds the unpaid principal balance of the
Note, such excess shall be refunded to Maker. All interest paid or agreed to
be paid to Holder shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full stated term
(including any renewal or extension) of such indebtedness so that the amount of
interest on account of such indebtedness does not exceed the maximum permitted
by applicable law. The provisions of this paragraph shall control all existing
and future agreements between Maker and Holder.
20. ARBITRATION. Any controversy or claim between or among the
parties hereto including but not limited to those arising out of or relating to
this Note or any related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by binding arbitration
in accordance with the Federal Arbitration Act (or if not applicable, the
applicable state law), the Rules of Practice and Procedure for the Arbitration
of Commercial Disputes or Judicial Arbitration and Mediation Services, Inc.
("J.A.M.S."), and the "Special Rules" set forth below. In the event of any
inconsistency, the Special Rules shall control. Judgment upon any arbitration
award may be entered in any court having jurisdiction. Any party to this Note
may bring an action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim in which this Note applies in any court
having jurisdiction over such action.
21. SPECIAL RULES. The arbitration shall be conducted in the city
of Maker's domicile at the time of this Note's execution and administered by
J.A.M.S., who will appoint an arbitrator; if J.A.M.S. is unable or legally
precluded from administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be commenced within
ninety (90) days of the demand for arbitration; further the arbitrator shall
only, upon a showing of cause, be permitted to extend the commencement of such
hearing for an additional sixty (60) days.
22. RESERVATION OF RIGHTS. Nothing in this Note shall be deemed
to (i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Note; or (ii) be a
waiver by the Holder of the protection afforded to it by 12 U.S.C. Section 91
or any substantially equivalent state law; or (iii) limit the right of the
Holder hereto (a) to exercise self help remedies such as (but not limited to)
setoff, or (b) to foreclose against any real or personal property collateral,
or (c) to obtain from a court provisional or ancillary remedies such as (but
not limited to) injunctive relief, writ of possession or the appointment of a
receiver. The Holder may exercise such self help rights, foreclosure upon such
property, or obtain such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought pursuant to this Note.
Neither the exercise or self help remedies nor the institution or maintenance
of an action for foreclosure or provisional or ancillary remedies shall
10
<PAGE> 98
constitute a waiver of the right of any party, including the claimant in such
action, to arbitrate the merits of the controversy or claim occasioning resort
to such remedies. Nothing in this Note shall be deemed to limit the right of
Maker to seek injunctive relief.
23. TITLES. The titles of sections or paragraphs herein are used
for the convenience of the parties only and neither amplify, modify or alter in
any way the provisions of this instrument.
IN WITNESS WHEREOF, Maker has executed this Note under seal on the
date first above written.
MAKER:
THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC., a Georgia
corporation
By:
--------------------------------------
Donald E. Ellis, Jr., Senior
Vice President
Attest:
---------------------------------
Tony G. Mills, Secretary
(CORPORATE SEAL)
11
<PAGE> 99
================================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
================================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP INTERNATIONAL,
INC., a Georgia corporation (the "Corporation"), hereby certify and covenant in
their representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions
were adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered,
and approved by all necessary action, the following documents pursuant to, and
in full compliance with, authority granted by the Directors of the Corporation
in the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
$10,000,000.00 Promissory Note September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly
elected and qualified incumbents of the offices of the Corporation set forth
below next to their respective names, and the signatures appearing at the right
of their respective names below are the genuine signatures of such officers:
<PAGE> 100
Name and Title Signatures
Donald E. Ellis, Jr., Senior Vice President
______________________________
Tony G. Mills, Secretary
______________________________
5. As of the date hereof, each of the Loan Documents is in full
force and effect and each constitutes the valid, binding and legally
enforceable obligation of the Corporation, and the Lender is entitled to the
benefits of the same. The Corporation has authorized by all necessary action
the execution, delivery, receipt and due performance of any and all other
agreements and documents which may be required to be executed, delivered,
received or performed by the Corporation in order to carry out, give effect to
and consummate the transactions contemplated by the Loan Documents. Each of
the representations and warranties of the Corporation contained in the Loan
Documents is accurate and complete in all respects as of the date of this
Certificate. The Corporation is on the date hereof in full compliance with all
the terms and provisions set forth in the Loan Documents and not in default
thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is
the legally adopted, proper and only official corporate seal of the
Corporation.
8. The Corporation's chief executive office and principal place
of business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended)
is located (and, at all times since its incorporation, has been located) in
Cobb County, Georgia.
- 2 -
<PAGE> 101
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
______________________________________
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group
International, Inc.
_________________________________
TONY G. MILLS, Secretary of
The Profit Recovery Group
International, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 102
===============================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP INTERNATIONAL I, INC.
===============================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP INTERNATIONAL I,
INC., a Georgia corporation (the "Corporation"), hereby certify and covenant in
their representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions
were adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered,
and approved by all necessary action, the following documents pursuant to, and
in full compliance with, authority granted by the Directors of the Corporation
in the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly
elected and qualified incumbents of the offices of the Corporation set forth
below next to their respective names, and the signatures appearing at the right
of their respective names below are the genuine signatures of such officers:
<PAGE> 103
Name and Title Signatures
Donald E. Ellis, Jr., Senior Vice President
_____________________________
Tony G. Mills, Secretary
_____________________________
5. As of the date hereof, each of the Loan Documents is in full
force and effect and each constitutes the valid, binding and legally
enforceable obligation of the Corporation, and the Lender is entitled to the
benefits of the same. The Corporation has authorized by all necessary action
the execution, delivery, receipt and due performance of any and all other
agreements and documents which may be required to be executed, delivered,
received or performed by the Corporation in order to carry out, give effect to
and consummate the transactions contemplated by the Loan Documents. Each of
the representations and warranties of the Corporation contained in the Loan
Documents is accurate and complete in all respects as of the date of this
Certificate. The Corporation is on the date hereof in full compliance with all
the terms and provisions set forth in the Loan Documents and not in default
thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is
the legally adopted, proper and only official corporate seal of the
Corporation.
8. The Corporation's chief executive office and principal place
of business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended)
is located (and, at all times since its incorporation, has been located) in
Cobb County, Georgia.
- 2 -
<PAGE> 104
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
______________________________________
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group
International I, Inc.
____________________________________
TONY G. MILLS, Secretary of
The Profit Recovery Group
International I, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 105
===============================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP U.K., INC.
===============================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP U.K., INC., a
Georgia corporation (the "Corporation"), hereby certify and covenant in their
representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions
were adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered,
and approved by all necessary action, the following documents pursuant to, and
in full compliance with, authority granted by the Directors of the Corporation
in the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly
elected and qualified incumbents of the offices of the Corporation set forth
below next to their respective names, and the signatures appearing at the right
of their respective names below are the genuine signatures of such officers:
<PAGE> 106
Name and Title Signatures
Donald E. Ellis, Jr., Senior Vice President ______________________________
Tony G. Mills, Secretary
______________________________
5. As of the date hereof, each of the Loan Documents is in full
force and effect and each constitutes the valid, binding and legally
enforceable obligation of the Corporation, and the Lender is entitled to the
benefits of the same. The Corporation has authorized by all necessary action
the execution, delivery, receipt and due performance of any and all other
agreements and documents which may be required to be executed, delivered,
received or performed by the Corporation in order to carry out, give effect to
and consummate the transactions contemplated by the Loan Documents. Each of
the representations and warranties of the Corporation contained in the Loan
Documents is accurate and complete in all respects as of the date of this
Certificate. The Corporation is on the date hereof in full compliance with all
the terms and provisions set forth in the Loan Documents and not in default
thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is
the legally adopted, proper and only official corporate seal of the
Corporation.
8. The Corporation's chief executive office and principal place
of business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended)
is located (and, at all times since its incorporation, has been located) in
Cobb County, Georgia.
- 2 -
<PAGE> 107
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
_______________________________________
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group U.K., Inc.
______________________________________
TONY G. MILLS, Secretary of
The Profit Recovery Group
U.K., Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 108
================================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP ASIA, INC.
================================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP ASIA, INC., a
Georgia corporation (the "Corporation"), hereby certify and covenant in their
representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions
were adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered,
and approved by all necessary action, the following documents pursuant to, and
in full compliance with, authority granted by the Directors of the Corporation
in the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly
elected and qualified incumbents of the offices of the Corporation set forth
below next to their respective names, and the signatures appearing at the right
of their respective names below are the genuine signatures of such officers:
<PAGE> 109
Name and Title Signatures
Donald E. Ellis, Jr., Senior Vice President
______________________________
Tony G. Mills, Secretary
______________________________
5. As of the date hereof, each of the Loan Documents is in full
force and effect and each constitutes the valid, binding and legally
enforceable obligation of the Corporation, and the Lender is entitled to the
benefits of the same. The Corporation has authorized by all necessary action
the execution, delivery, receipt and due performance of any and all other
agreements and documents which may be required to be executed, delivered,
received or performed by the Corporation in order to carry out, give effect to
and consummate the transactions contemplated by the Loan Documents. Each of
the representations and warranties of the Corporation contained in the Loan
Documents is accurate and complete in all respects as of the date of this
Certificate. The Corporation is on the date hereof in full compliance with all
the terms and provisions set forth in the Loan Documents and not in default
thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is
the legally adopted, proper and only official corporate seal of the
Corporation.
8. The Corporation's chief executive office and principal place
of business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended)
is located (and, at all times since its incorporation, has been located) in
Cobb County, Georgia.
- 2 -
<PAGE> 110
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
_______________________________________
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group Asia, Inc.
____________________________________
TONY G. MILLS, Secretary of
The Profit Recovery Group
Asia, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 111
================================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP CANADA, INC.
================================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP CANADA, INC., a
Georgia corporation (the "Corporation"), hereby certify and covenant in their
representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions
were adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered,
and approved by all necessary action, the following documents pursuant to, and
in full compliance with, authority granted by the Directors of the Corporation
in the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly
elected and qualified incumbents of the offices of the Corporation set forth
below next to their respective names, and the signatures appearing at the right
of their respective names below are the genuine signatures of such officers:
<PAGE> 112
Name and Title Signatures
Donald E. Ellis, Jr., Senior Vice President
_______________________________
Tony G. Mills, Secretary
_______________________________
5. As of the date hereof, each of the Loan Documents is in full
force and effect and each constitutes the valid, binding and legally
enforceable obligation of the Corporation, and the Lender is entitled to the
benefits of the same. The Corporation has authorized by all necessary action
the execution, delivery, receipt and due performance of any and all other
agreements and documents which may be required to be executed, delivered,
received or performed by the Corporation in order to carry out, give effect to
and consummate the transactions contemplated by the Loan Documents. Each of
the representations and warranties of the Corporation contained in the Loan
Documents is accurate and complete in all respects as of the date of this
Certificate. The Corporation is on the date hereof in full compliance with all
the terms and provisions set forth in the Loan Documents and not in default
thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is
the legally adopted, proper and only official corporate seal of the
Corporation.
8. The Corporation's chief executive office and principal place
of business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended)
is located (and, at all times since its incorporation, has been located) in
Cobb County, Georgia.
- 2 -
<PAGE> 113
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
_________________________________________
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group Canada, Inc.
________________________________
TONY G. MILLS, Secretary of
The Profit Recovery Group
Canada, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 114
================================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP NEW ZEALAND, INC.
================================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP NEW ZEALAND,
INC., a Georgia corporation (the "Corporation"), hereby certify and covenant in
their representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions
were adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered,
and approved by all necessary action, the following documents pursuant to, and
in full compliance with, authority granted by the Directors of the Corporation
in the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly
elected and qualified incumbents of the offices of the Corporation set forth
below next to their respective names, and the signatures appearing at the right
of their respective names below are the genuine signatures of such officers:
<PAGE> 115
Name and Title Signatures
Donald E. Ellis, Jr., Senior Vice President
________________________________
Tony G. Mills, Secretary
________________________________
5. As of the date hereof, each of the Loan Documents is in full
force and effect and each constitutes the valid, binding and legally
enforceable obligation of the Corporation, and the Lender is entitled to the
benefits of the same. The Corporation has authorized by all necessary action
the execution, delivery, receipt and due performance of any and all other
agreements and documents which may be required to be executed, delivered,
received or performed by the Corporation in order to carry out, give effect to
and consummate the transactions contemplated by the Loan Documents. Each of
the representations and warranties of the Corporation contained in the Loan
Documents is accurate and complete in all respects as of the date of this
Certificate. The Corporation is on the date hereof in full compliance with all
the terms and provisions set forth in the Loan Documents and not in default
thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is
the legally adopted, proper and only official corporate seal of the
Corporation.
8. The Corporation's chief executive office and principal place
of business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended)
is located (and, at all times since its incorporation, has been located) in
Cobb County, Georgia.
- 2 -
<PAGE> 116
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
_____________________________________________
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group New Zealand, Inc.
_______________________________
TONY G. MILLS, Secretary of
The Profit Recovery Group
New Zealand, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 117
================================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP BELGIUM, INC.
================================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP BELGIUM, INC., a
Georgia corporation (the "Corporation"), hereby certify and covenant in their
representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions
were adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered,
and approved by all necessary action, the following documents pursuant to, and
in full compliance with, authority granted by the Directors of the Corporation
in the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly
elected and qualified incumbents of the offices of the Corporation set forth
below next to their respective names, and the signatures appearing at the right
of their respective names below are the genuine signatures of such officers:
<PAGE> 118
Name and Title Signatures
Donald E. Ellis, Jr., Senior Vice President
__________________________________
Tony G. Mills, Secretary
__________________________________
5. As of the date hereof, each of the Loan Documents is in full
force and effect and each constitutes the valid, binding and legally
enforceable obligation of the Corporation, and the Lender is entitled to the
benefits of the same. The Corporation has authorized by all necessary action
the execution, delivery, receipt and due performance of any and all other
agreements and documents which may be required to be executed, delivered,
received or performed by the Corporation in order to carry out, give effect to
and consummate the transactions contemplated by the Loan Documents. Each of
the representations and warranties of the Corporation contained in the Loan
Documents is accurate and complete in all respects as of the date of this
Certificate. The Corporation is on the date hereof in full compliance with all
the terms and provisions set forth in the Loan Documents and not in default
thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is
the legally adopted, proper and only official corporate seal of the
Corporation.
8. The Corporation's chief executive office and principal place
of business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended)
is located (and, at all times since its incorporation, has been located) in
Cobb County, Georgia.
- 2 -
<PAGE> 119
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
_________________________________________
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group Belgium, Inc.
__________________________________
TONY G. MILLS, Secretary of
The Profit Recovery Group
Belgium, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 120
================================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP NETHERLANDS, INC.
================================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP NETHERLANDS,
INC., a Georgia corporation (the "Corporation"), hereby certify and covenant in
their representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions
were adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered,
and approved by all necessary action, the following documents pursuant to, and
in full compliance with, authority granted by the Directors of the Corporation
in the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly
elected and qualified incumbents of the offices of the Corporation set forth
below next to their respective names, and the signatures appearing at the right
of their respective names below are the genuine signatures of such officers:
<PAGE> 121
Name and Title Signatures
Donald E. Ellis, Jr., Senior Vice President
_________________________________
Tony G. Mills, Secretary
_________________________________
5. As of the date hereof, each of the Loan Documents is in full
force and effect and each constitutes the valid, binding and legally
enforceable obligation of the Corporation, and the Lender is entitled to the
benefits of the same. The Corporation has authorized by all necessary action
the execution, delivery, receipt and due performance of any and all other
agreements and documents which may be required to be executed, delivered,
received or performed by the Corporation in order to carry out, give effect to
and consummate the transactions contemplated by the Loan Documents. Each of
the representations and warranties of the Corporation contained in the Loan
Documents is accurate and complete in all respects as of the date of this
Certificate. The Corporation is on the date hereof in full compliance with all
the terms and provisions set forth in the Loan Documents and not in default
thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is
the legally adopted, proper and only official corporate seal of the
Corporation.
8. The Corporation's chief executive office and principal place
of business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended)
is located (and, at all times since its incorporation, has been located) in
Cobb County, Georgia.
- 2 -
<PAGE> 122
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
______________________________________________
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group Netherlands, Inc.
______________________________
TONY G. MILLS, Secretary of
The Profit Recovery Group
Netherlands, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 123
================================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP MEXICO, INC.
================================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP MEXICO, INC., a
Georgia corporation (the "Corporation"), hereby certify and covenant in their
representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions
were adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered,
and approved by all necessary action, the following documents pursuant to, and
in full compliance with, authority granted by the Directors of the Corporation
in the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly
elected and qualified incumbents of the offices of the Corporation set forth
below next to their respective names, and the signatures appearing at the right
of their respective names below are the genuine signatures of such officers:
<PAGE> 124
Name and Title Signatures
Donald E. Ellis, Jr., Senior Vice President
___________________________________
Tony G. Mills, Secretary
___________________________________
5. As of the date hereof, each of the Loan Documents is in full
force and effect and each constitutes the valid, binding and legally
enforceable obligation of the Corporation, and the Lender is entitled to the
benefits of the same. The Corporation has authorized by all necessary action
the execution, delivery, receipt and due performance of any and all other
agreements and documents which may be required to be executed, delivered,
received or performed by the Corporation in order to carry out, give effect to
and consummate the transactions contemplated by the Loan Documents. Each of
the representations and warranties of the Corporation contained in the Loan
Documents is accurate and complete in all respects as of the date of this
Certificate. The Corporation is on the date hereof in full compliance with all
the terms and provisions set forth in the Loan Documents and not in default
thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is
the legally adopted, proper and only official corporate seal of the
Corporation.
8. The Corporation's chief executive office and principal place
of business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended)
is located (and, at all times since its incorporation, has been located) in
Cobb County, Georgia.
- 2 -
<PAGE> 125
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
_________________________________________
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group Mexico, Inc.
___________________________________________
TONY G. MILLS, Secretary of
The Profit Recovery Group
Mexico, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 126
===============================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP FRANCE, INC.
===============================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP FRANCE, INC., a
Georgia corporation (the "Corporation"), hereby certify and covenant in their
representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions were
adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered, and
approved by all necessary action, the following documents pursuant to, and in
full compliance with, authority granted by the Directors of the Corporation in
the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly elected and
qualified incumbents of the offices of the Corporation set forth below next to
their respective names, and the signatures appearing at the right of their
respective names below are the genuine signatures of such officers:
<PAGE> 127
Name and Title Signatures
-------------- ----------
Donald E. Ellis, Jr., Senior Vice President
-----------------------------
Tony G. Mills, Secretary
-----------------------------
5. As of the date hereof, each of the Loan Documents is in full force
and effect and each constitutes the valid, binding and legally enforceable
obligation of the Corporation, and the Lender is entitled to the benefits of the
same. The Corporation has authorized by all necessary action the execution,
delivery, receipt and due performance of any and all other agreements and
documents which may be required to be executed, delivered, received or performed
by the Corporation in order to carry out, give effect to and consummate the
transactions contemplated by the Loan Documents. Each of the representations and
warranties of the Corporation contained in the Loan Documents is accurate and
complete in all respects as of the date of this Certificate. The Corporation is
on the date hereof in full compliance with all the terms and provisions set
forth in the Loan Documents and not in default thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is the
legally adopted, proper and only official corporate seal of the Corporation.
8. The Corporation's chief executive office and principal place of
business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended) is
located (and, at all times since its incorporation, has been located) in Cobb
County, Georgia.
- 2 -
<PAGE> 128
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
--------------------------------------------
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group France, Inc.
- ------------------------------
TONY G. MILLS, Secretary of
The Profit Recovery Group
France, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 129
===============================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP AUSTRALIA, INC.
===============================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP AUSTRALIA, INC.,
a Georgia corporation (the "Corporation"), hereby certify and covenant in their
representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions were
adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered, and
approved by all necessary action, the following documents pursuant to, and in
full compliance with, authority granted by the Directors of the Corporation in
the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly elected and
qualified incumbents of the offices of the Corporation set forth below next to
their respective names, and the signatures appearing at the right of their
respective names below are the genuine signatures of such officers:
<PAGE> 130
Name and Title Signatures
-------------- ----------
Donald E. Ellis, Jr., Senior Vice President
-----------------------------
Tony G. Mills, Secretary
-----------------------------
5. As of the date hereof, each of the Loan Documents is in full force
and effect and each constitutes the valid, binding and legally enforceable
obligation of the Corporation, and the Lender is entitled to the benefits of the
same. The Corporation has authorized by all necessary action the execution,
delivery, receipt and due performance of any and all other agreements and
documents which may be required to be executed, delivered, received or performed
by the Corporation in order to carry out, give effect to and consummate the
transactions contemplated by the Loan Documents. Each of the representations and
warranties of the Corporation contained in the Loan Documents is accurate and
complete in all respects as of the date of this Certificate. The Corporation is
on the date hereof in full compliance with all the terms and provisions set
forth in the Loan Documents and not in default thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is the
legally adopted, proper and only official corporate seal of the Corporation.
8. The Corporation's chief executive office and principal place of
business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended) is
located (and, at all times since its incorporation, has been located) in Cobb
County, Georgia.
- 2 -
<PAGE> 131
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
--------------------------------------------
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group Australia, Inc.
- -----------------------------
TONY G. MILLS, Secretary of
The Profit Recovery Group
Australia, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 132
===============================================================================
CERTIFICATE
OF
THE PROFIT RECOVERY GROUP AUSTRALIA, INC.
===============================================================================
The undersigned officers of THE PROFIT RECOVERY GROUP GERMANY, INC., a
Georgia corporation (the "Corporation"), hereby certify and covenant in their
representative capacities on behalf of the Corporation as follows:
1. Attached hereto as Exhibit 1 is a true and correct copy of
resolutions of the Directors of the Corporation which were duly adopted on or
about ______________, 1996 (the "Resolutions"). A signed original of the
Resolutions appears in the minute book of the Corporation. The Resolutions were
adopted in accordance with law and in accordance with the by-laws of the
Corporation. A true and correct copy of the Corporation's Articles of
Incorporation is attached hereto as Exhibit 2. A true and correct copy of the
Corporation's by-laws is attached hereto as Exhibit 3. The Resolutions are in
full force and effect and have not been amended, altered or repealed as of the
date hereof.
2. The Corporation has duly authorized, executed and delivered, and
approved by all necessary action, the following documents pursuant to, and in
full compliance with, authority granted by the Directors of the Corporation in
the Resolutions:
<TABLE>
<CAPTION>
DOCUMENT DATE OTHER PARTY
-------- ---- -----------
<S> <C> <C>
Loan and Security Agreement September __, 1996 NationsBank, N.A. (South)
Guaranty September __, 1996 NationsBank, N.A. (South)
</TABLE>
The Corporation hereby acknowledges receipt of an executed counterpart or
photocopy (as executed) of each of the above-described documents (which
documents are hereinafter collectively called the "Loan Documents").
3. The Corporation has the corporate power to execute the Loan
Documents and to perform the obligations required to be performed by the
Corporation under the terms of the Loan Documents.
4. The persons named below are on the date hereof the duly elected and
qualified incumbents of the offices of the Corporation set forth below next to
their respective names, and the signatures appearing at the right of their
respective names below are the genuine signatures of such officers:
<PAGE> 133
Name and Title Signatures
-------------- ----------
Donald E. Ellis, Jr., Senior Vice President
----------------------------------
Tony G. Mills, Secretary
----------------------------------
5. As of the date hereof, each of the Loan Documents is in full force
and effect and each constitutes the valid, binding and legally enforceable
obligation of the Corporation, and the Lender is entitled to the benefits of the
same. The Corporation has authorized by all necessary action the execution,
delivery, receipt and due performance of any and all other agreements and
documents which may be required to be executed, delivered, received or performed
by the Corporation in order to carry out, give effect to and consummate the
transactions contemplated by the Loan Documents. Each of the representations and
warranties of the Corporation contained in the Loan Documents is accurate and
complete in all respects as of the date of this Certificate. The Corporation is
on the date hereof in full compliance with all the terms and provisions set
forth in the Loan Documents and not in default thereunder.
6. All necessary consents, approvals or authorizations of, or
declarations, notices, registrations or filings with, governmental authorities
required for the execution, delivery and performance of the Loan Documents by
the Corporation and the carrying out of the conduct and activities contemplated
by the Loan Documents have been obtained or made.
7. The seal affixed to this Certificate and the Loan Documents is the
legally adopted, proper and only official corporate seal of the Corporation.
8. The Corporation's chief executive office and principal place of
business (within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located (and, at all times since its formation, has been
located) in Cobb County, Georgia and its principal executive office (within the
meaning of Section 6323(f) of the Internal Revenue Code of 1986, as amended) is
located (and, at all times since its incorporation, has been located) in Cobb
County, Georgia.
- 2 -
<PAGE> 134
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures
and the seal of the Corporation as of this ____ day of September, 1996.
--------------------------------------------
[CORPORATE SEAL] DONALD E. ELLIS, Senior Vice President
of The Profit Recovery Group Germany, Inc.
- --------------------------
TONY G. MILLS, Secretary of
The Profit Recovery Group
Germany, Inc.
Exhibit 1 - Resolutions
Exhibit 2 - Articles of Incorporation
Exhibit 3 - By-Laws
- 3 -
<PAGE> 135
NationsBank(R)
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
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<PAGE> 136
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
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<PAGE> 137
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
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<PAGE> 138
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY
RELATED LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
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<PAGE> 139
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
NOTICE TO THE GUARANTOR: You are being asked to guarantee this debt, as well as
future debts of the Debtor entered into with this Lender. Think carefully before
you do. If the Debtor does not pay the debt, you will have to. Be sure you can
afford to pay if you have to, and that you want to accept this responsibility.
You may have to pay up to the full amount of the debt if the Debtor does not
pay. You may also have to pay late fees or collection costs, which increase this
amount. The Lender can collect this debt from you without first trying to
collect from the Debtor. The Lender can use the same collection methods against
you that can be used against the Debtor, such as suing you, garnishing your
wages, etc. If this debt is ever in default, that fact may become a part of your
credit record. This notice is not the contract that makes you liable for the
debt.
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<PAGE> 140
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP
INTERNATIONAL I, INC.
[CORPORATE SEAL]
Attest: By:
---------------------------- ----------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
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<PAGE> 141
NationsBank(R)
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
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Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
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<PAGE> 143
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
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<PAGE> 144
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY
RELATED LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
Page 4 of 6
<PAGE> 145
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
NOTICE TO THE GUARANTOR: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the contract
that makes you liable for the debt.
Page 5 of 6
<PAGE> 146
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP ASIA, INC.
[CORPORATE SEAL]
Atest: By:
-------------------------- ---------------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
Page 6 of 6
<PAGE> 147
NationsBank(R)
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
Page 1 of 6
<PAGE> 148
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
Page 2 of 6
<PAGE> 149
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
Page 3 of 6
<PAGE> 150
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY
RELATED LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
Page 4 of 6
<PAGE> 151
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
NOTICE TO THE GUARANTOR: You are being asked to guarantee this debt, as well as
future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same collection
methods against you that can be used against the Debtor, such as suing you,
garnishing your wages, etc. If this debt is ever in default, that fact may
become a part of your credit record. This notice is not the contract that makes
you liable for the debt.
Page 5 of 6
<PAGE> 152
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP
CANADA, INC.
[CORPORATE SEAL]
Attest: By:
---------------------- -----------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
Page 6 of 6
<PAGE> 153
NationsBank
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
Page 1 of 6
<PAGE> 154
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
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<PAGE> 155
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
Page 3 of 6
<PAGE> 156
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY
RELATED LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
Page 4 of 6
<PAGE> 157
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
THE UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE
OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN NINETY (90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR
SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF
SUCH HEARING FOR AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
NOTICE TO THE GUARANTOR: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the contract
that makes you liable for the debt.
Page 5 of 6
<PAGE> 158
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP
NEW ZEALAND, INC.
[CORPORATE SEAL]
Attest: By:
--------------------------- ------------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
Page 6 of 6
<PAGE> 159
NationsBank(R)
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
Page 1 of 6
<PAGE> 160
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
Page 2 of 6
<PAGE> 161
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
Page 3 of 6
<PAGE> 162
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY
RELATED LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
Page 4 of 6
<PAGE> 163
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
THE UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE
OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN NINETY (90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR
SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF
SUCH HEARING FOR AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED
TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A
WAIVER BY THE LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91
OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE
LENDER HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SETOFF, OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL,
OR (c) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT
NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
GUARANTY. NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES
SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN
SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE
RIGHT OF GUARANTOR TO SEEK INJUNCTIVE RELIEF.
NOTICE TO THE GUARANTOR: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the contract
that makes you liable for the debt.
Page 5 of 6
<PAGE> 164
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP
NETHERLANDS, INC.
[CORPORATE SEAL]
Attest: By:
--------------------------- -------------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
Page 6 of 6
<PAGE> 165
NATIONSBANK GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
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<PAGE> 166
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
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<PAGE> 167
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
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<PAGE> 168
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY
RELATED LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
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<PAGE> 169
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
Notice to the Guarantor: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be
sure you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you
without first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the
contract that makes you liable for the debt.
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<PAGE> 170
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP
BELGIUM, INC.
[CORPORATE SEAL]
Attest: By:
------------------------ ------------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
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<PAGE> 171
NationsBank(R)
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
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<PAGE> 172
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
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<PAGE> 173
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
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<PAGE> 174
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT
NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY RELATED
LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
Page 4 of 6
<PAGE> 175
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
Notice to the Guarantor: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the contract
that makes you liable for the debt.
Page 5 of 6
<PAGE> 176
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP
FRANCE, INC.
[CORPORATE SEAL]
Attest: By:
----------------------------- -------------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
Page 6 of 6
<PAGE> 177
NationsBank(R)
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
Page 1 of 6
<PAGE> 178
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
Page 2 of 6
<PAGE> 179
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
Page 3 of 6
<PAGE> 180
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT
NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY RELATED
LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
Page 4 of 6
<PAGE> 181
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
NOTICE TO THE GUARANTOR: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the contract
that makes you liable for the debt.
Page 5 of 6
<PAGE> 182
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP
AUSTRALIA, INC.
[CORPORATE SEAL]
Attest: By:
------------------------------ ---------------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
Page 6 of 6
<PAGE> 183
NationsBank(R)
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
Page 1 of 6
<PAGE> 184
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
Page 2 of 6
<PAGE> 185
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
Page 3 of 6
<PAGE> 186
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT
NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY RELATED
LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
Page 4 of 6
<PAGE> 187
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
NOTICE TO THE GUARANTOR: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the contract
that makes you liable for the debt.
Page 5 of 6
<PAGE> 188
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP
GERMANY, INC.
[CORPORATE SEAL]
Attest: By:
--------------------------- ---------------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
Page 6 of 6
<PAGE> 189
NationsBank(R)
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
Page 1 of 6
<PAGE> 190
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
Page 2 of 6
<PAGE> 191
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
Page 3 of 6
<PAGE> 192
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT
NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY RELATED
LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
Page 4 of 6
<PAGE> 193
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
Notice to the Guarantor: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the contract
that makes you liable for the debt.
Page 5 of 6
<PAGE> 194
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP U.K., INC.
[CORPORATE SEAL]
Attest: By:
----------------------------- ----------------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
Page 6 of 6
<PAGE> 195
NationsBank(R)
GUARANTY
ATLANTA, GEORGIA SEPTEMBER ___, 1996
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC. (hereinafter called the "Debtor") by NATIONSBANK, N.A.
(SOUTH) (hereinafter, together with its successors and assigns, called the
"Lender"), the undersigned hereby unconditionally guarantee(s) the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
hereafter, of (a) all obligations, liabilities and indebtedness of the Debtor to
the Lender, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due; (b) any and all
extensions, renewals, modifications, or substitutions of the foregoing, and all
expenses, including without limitation reasonable attorneys' fees actually
incurred if the Lender endeavors to collect from the Debtor by law or through an
attorney at law; (c) any indebtedness resulting from advances made on the
Debtor's behalf by Lender to protect or preserve the priority of its lien, if
any, on any collateral pledged to secure the Liabilities; (d) all other charges
and expenses, including without limitation late charges, and the payment of all
costs, expenses, charges and other expenditures required to be made by Debtor,
or which Debtor agrees to make, under the terms and provisions of any Loan
Documents (as that term is hereinafter defined). All such items (a), (b), (c)
and (d) are herein collectively referred to as the "Liabilities".
Undersigned further unconditionally guarantees the faithful, prompt and
complete compliance by Debtor with all terms, conditions, covenants, agreements
and undertakings of Debtor (herein collectively referred to as the
"Obligations") under all notes and other documents evidencing the Liabilities
and under all deeds to secure debt, security agreements and other documents,
however described or denominated, pledging collateral and in any way securing
payment of the Liabilities, and under all other agreements, documents and
instruments executed in connection with the Liabilities or related thereto (all
such deeds to secure debt, security agreements and other documents securing
payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations being
herein collectively called the "Loan Documents").
In the event that Debtor fails to perform any of the Obligations or pay any
of the Liabilities (after any applicable grace or cure period), undersigned
shall, upon the demand of Lender, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Lender all Obligations.
The undertakings of the Undersigned hereunder are independent of the
Liabilities and Obligations of Debtor, and a separate action or actions for
payment, damages, or performance may be brought or prosecuted against the
undersigned whether or not an action is brought against the Debtor or to realize
upon the security for the Liabilities and Obligations, and whether or not Debtor
is joined in any such action or actions, and whether or not notice is given or
demand is made upon Debtor.
Page 1 of 6
<PAGE> 196
Undersigned hereby represents that all loans and other financial
accommodations by the Lender to the Debtor will be to the direct interest and
advantage of the undersigned.
Undersigned hereby transfers and conveys to the Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of the Lender, and the Lender is
hereby given a lien upon, security title to and a security interest in all
property of the undersigned of every kind and description now or hereafter in
the possession or control of the Lender for any reason, including without
limitation all dividends and distributions on or other rights in connection
therewith. Lender may, at any time after the occurrence of and during the
continuance of an event of default under the Loan Documents (and after
expiration of any applicable grace or cure period), without demand or notice of
any kind, except as may be expressly required herein or in any of the Loan
Documents, at any time and from time to time when any amount shall be due and
payable hereunder by any of the undersigned, appropriate and apply toward the
payment of such amount, and in such order of application as the Lender may from
time to time elect, any property, balances, credits, deposits, accounts, items
or monies of such undersigned in the possession or control of the Lender for any
purpose.
This guaranty shall be continuing, absolute and unconditional and shall
remain in full force and effect as to the undersigned, subject to discontinuance
of this guaranty as to any of the undersigned (including, without limitation,
any undersigned who shall become deceased, incompetent or dissolved) only as
follows: Any of the undersigned, and any person duly authorized and acting on
behalf of any of the undersigned, may give written notice to the Lender of
discontinuance of this guaranty as to the undersigned by whom or on whose behalf
such notice is given, but no such notice shall be effective in any respect until
it is actually received by the Lender and no such action shall affect or impair
the obligations hereunder of the undersigned by whom or on whose behalf such
notice is given with respect to any Liabilities or Obligations existing at the
date of receipt of such notice by the Lender, any interest thereon or any
expenses paid or incurred by the Lender in endeavoring to collect the
Liabilities or enforce the Obligations, or any part thereof, and in enforcing
this guaranty against such undersigned. Any such notice of discontinuance by or
on behalf of any of the undersigned shall not affect or impair the obligations
hereunder of any other of the undersigned.
The Lender may, from time to time, without notice to the undersigned (or
any of them) (a) retain or obtain a security interest in any property whether
real, personal, mixed, tangible or intangible or choses in action (the
"Collateral") to secure any of the Liabilities or Obligations or any obligation
hereunder, (b) retain or obtain the primary or secondary liability of any party
or parties, in addition to the undersigned, with respect to any of the
Liabilities or Obligations, (c) extend or renew for any period (whether or not
longer than the original period), alter or exchange any of the Liabilities or
Obligations, (d) release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities or Obligations, (e) release its
security interest, if any, in the Collateral and permit any substitution or
exchange for the Collateral or any part thereof, and (f) resort to the
undersigned (or any of them) for payment of any of the Liabilities or
performance of the Obligations, whether or not the Lender shall have resorted to
any of the Collateral, or shall have proceeded against any other of the
undersigned or any other party primarily or secondarily liable on any of the
Liabilities or Obligations.
Page 2 of 6
<PAGE> 197
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as the Lender may from time to time elect.
The undersigned hereby expressly waive(s): notice of acceptance of this
guaranty, (b) notice of the existence or creation of all or any of the
Liabilities or Obligations, (c) notice of default, non-payment or partial
payment, (d) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, except as required herein or pursuant to the terms of the
Loan Documents, (e) all diligence in collection or protection of or realization
upon the Liabilities or Collateral or in enforcing any remedy available to
Lender under any of the Loan Documents, and (f) the provisions of Section
10-7-24 of the Official Code of Georgia Annotated (or any similar law of any
other jurisdiction) relating to the undersigned's right to discharge upon the
undersigned's giving notice to the Lender to proceed against the Debtor for
collection after the Liabilities are due and payable, and the failure or refusal
of Lender to thereupon commence an action, or foreclose any Collateral within
any specified time period or at any time.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Liabilities or Obligations, and in such event each and every
immediate and successive assignee, transferee, or holder of all or any of the
Liabilities or Obligations, shall have the right to enforce this guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits, but the Lender shall have an unimpaired
right, prior and superior to that of any such assignee, transferee or holder, to
enforce this guaranty for the benefit of the Lender, as to so much of the
Liabilities or Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. The Liabilities and
Obligations of the undersigned hereunder shall not be released, impaired or
affected in any manner by reason of: (a) the taking of any action consented to
or permitted by the undersigned herein or otherwise, or (b) failure of the
Lender to take any such actions.
For the purpose of this guaranty, this guaranty shall be fully enforceable,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense, as to the validity or enforceability of the Liabilities or
Obligations, and no such claim or defense shall impair or affect the obligations
of the undersigned hereunder. Without limiting the generality of the foregoing,
if the Debtor is a corporation, partnership, joint venture, trust or other form
of business organization, this guaranty covers all Liabilities and Obligations
to the Lender purporting to be made on behalf of such organization by any
officer or agent of the same, without regard to the actual authority of such
officers or agent. The term "corporation" shall include associations of all
kinds and all purported corporations, whether correctly and legally chartered
and organized or not.
This guaranty is cumulative of and shall not affect, modify or limit any
other guaranty executed by the undersigned with respect to any Liabilities or
Obligations.
In the event Lender is required to relinquish or return any payments, or
any Collateral or the proceeds thereof, in whole or in part, which had been
previously applied or retained for application against the Liabilities, by
reason of a proceeding arising out of a Bankruptcy case, or for any other
Page 3 of 6
<PAGE> 198
reason, this guaranty shall automatically be reinstated and continue to be
effective notwithstanding any previous cancellation or release effected by
Lender.
All sums payable by the undersigned hereunder, whether of principal,
interest, fees, expenses, premiums or otherwise, shall be paid in full, without
setoff or counterclaim or any deduction or withholding (except as required by
law) whatsoever, or, in the event that the undersigned is required by law to
make any such deduction or withholding, the undersigned shall pay to the Lender
such additional amount as will result in the receipt by the Lender of the full
amount payable hereunder.
This guaranty shall be binding upon the undersigned, and upon the heirs,
legal representatives, successors and assigns of the undersigned. If more than
one party shall execute this guaranty, the term "undersigned" shall mean all
parties executing this guaranty, and all such parties shall be jointly and
severally obligated hereunder.
The undersigned hereby expressly and irrevocably waives all rights that it
may have at law or in equity to seek subrogation, indemnification, contribution
or any other form of reimbursement from the Debtor or any other person now or
hereafter primarily or secondarily liable for any of the Liabilities or the
Obligations, all rights to enforce any remedy the Lender may have against the
Debtor and any benefit of, or right to participate in any collateral or
security, now and hereafter held by the Lender in respect to the Liabilities and
Obligations, even upon payment in full of the Liabilities and satisfaction of
the Obligations.
THE UNDERSIGNED HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE
PERSONAL JURISDICTION OF ANY STATE COURT SITTING IN COBB COUNTY, GEORGIA, OR THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, WITH RESPECT TO ANY
SUIT OR LEGAL ACTION CONCERNING THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS, AND THE UNDERSIGNED ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE
LAW OR IN EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE
JURISDICTION AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON
IN THIS SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE
JURISDICTION AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT
NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY RELATED
LOAN DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. ("J.A.M.S.") AND THE "SPECIAL RULES"
SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS GUARANTY MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO
Page 4 of 6
<PAGE> 199
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM IN WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(1) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
UNDERSIGNED'S DOMICILE AT THE TIME OF THIS GUARANTY'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR
AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SECTION 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE LENDER
HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (c) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY.
NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF
AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO LIMIT THE RIGHT OF
GUARANTOR TO SEEK INJUNCTIVE RELIEF.
Notice to the Guarantor: You are being asked to guarantee this debt, as well
as future debts of the Debtor entered into with this Lender. Think carefully
before you do. If the Debtor does not pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept this
responsibility. You may have to pay up to the full amount of the debt if the
Debtor does not pay. You may also have to pay late fees or collection costs,
which increase this amount. The Lender can collect this debt from you without
first trying to collect from the Debtor. The Lender can use the same
collection methods against you that can be used against the Debtor, such as
suing you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record. This notice is not the contract
that makes you liable for the debt.
Page 5 of 6
<PAGE> 200
IN WITNESS WHEREOF, the undersigned have caused this guaranty to be
executed, sealed and delivered by its duly authorized officers as of the day and
year first above written.
THE PROFIT RECOVERY GROUP
MEXICO, INC.
[CORPORATE SEAL]
Attest: By:
------------------------------ ------------------------------
Tony G. Mills, Secretary Donald E. Ellis, Jr., Senior
Vice President
Page 6 of 6
<PAGE> 1
EXHIBIT 11.1
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. AND SUBSIDIARIES
STATEMENT RE: COMPUTATION OF PRO FORMA EARNINGS PER SHARE(1)
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED SEPTEMBER NINE MONTHS ENDED
30, SEPTEMBER 30,
----------------- -----------------
1996 1995 1996 1995
------- ------- ------- -------
<S> <C> <C> <C> <C>
Pro forma net earnings.................................. $ 2,742 $ 1,463 $ 4,581 $ 2,163
Interest accrued on convertible debt, net of income
taxes(2).............................................. -- 122 97 137
------- ------- ------- -------
Adjusted pro forma net earnings............... $ 2,742 $ 1,585 $ 4,678 $ 2,300
======= ======= ======= =======
Weighted average number of shares outstanding(3)........ 17,621 12,000 15,810 12,000
Weighted average number of common equivalent shares
(computed using the treasury stock method)............ 665 348 562 348
Common shares from convertible debt(2).................. -- 2,157 719 2,157
Common equivalent shares from the distribution payable
$(4,875,576) divided by the initial public offering
price of $11.00 per share (and weighted since the
initial public offering).............................. -- 443 140 443
------- ------- ------- -------
Weighted average number of common and common
equivalent
shares...................................... 18,286 14,948 17,231 14,948
======= ======= ======= =======
Pro forma earnings per common and common equivalent
share................................................. $ .15 $ .11 $ .27 $ .15
======= ======= ======= =======
</TABLE>
- ---------------
(1) All share and per share data has been adjusted to reflect the effect of the
2-for-1 stock split (effected in the form of a stock dividend) at the time
of the March 1996 initial public offering.
(2) Assumes convertible debentures were converted, as a component of the initial
public offering-related reorganization, as of the beginning of the period
and the related interest expense, net of income taxes, is added back to pro
forma net earnings.
(3) Assumes number of shares outstanding, after giving effect to the initial
public offering-related reorganization, as of the beginning of the period.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. FOR THE
NINE MONTH PERIOD ENDED SEPTEMBER 30, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 14,895
<SECURITIES> 0
<RECEIVABLES> 33,755
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 49,224
<PP&E> 7,928
<DEPRECIATION> 1,916
<TOTAL-ASSETS> 60,907
<CURRENT-LIABILITIES> 16,484
<BONDS> 702
0
0
<COMMON> 18
<OTHER-SE> 38,221
<TOTAL-LIABILITY-AND-EQUITY> 60,907
<SALES> 0
<TOTAL-REVENUES> 55,542
<CGS> 0
<TOTAL-COSTS> 29,105
<OTHER-EXPENSES> 18,694
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 227
<INCOME-PRETAX> 7,516
<INCOME-TAX> 6,453
<INCOME-CONTINUING> 1,063
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,063
<EPS-PRIMARY> .27
<EPS-DILUTED> .27
</TABLE>
