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EXHIBIT 10.2
EIGHTH AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this
"Amendment"), dated as of August 2, 2000, is by and among THE PROFIT RECOVERY
GROUP INTERNATIONAL, INC., a Georgia corporation (the "Borrower"), certain
Subsidiaries of the Borrower (each a "Subsidiary Guarantor", and collectively,
the "Subsidiary Guarantors"), the Lenders identified on the signature pages
hereto (the "Lenders") and BANK OF AMERICA, N.A., formerly NationsBank, N.A., as
Agent for the Lenders (the "Agent"). All capitalized terms used herein and not
otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower, the Subsidiary Guarantors, the Lenders and the
Agent entered into that certain Credit Agreement dated as of July 29, 1998 (as
amended or modified from time to time, the "Credit Agreement");
WHEREAS, the parties hereto have agreed to amend the Credit Agreement
as set forth herein;
NOW, THEREFORE, in consideration of the agreements contained herein and
other good and valuable consideration, the parties hereby agree as follows:
1. Amendment. Section 8.10 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
The Credit Parties will not permit any Consolidated Party to
(a) amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational document) or bylaws (or other
similar document) in a manner materially adverse to the Lenders or (b)
change its fiscal year. The Credit Parties will promptly deliver to the
Agent copies of any amendments, modifications and changes to the
articles of incorporation (or corporate charter or other similar
organizational document) or bylaws (or other similar document) of any
Consolidated Party.
2. Consent. The Required Lenders hereby (i) consent to the
amendment of the Borrower's articles of incorporation which designates 500,000
shares of preferred stock as "Participating Preferred Stock" as described in
Appendix A to that certain Shareholder Protection Rights Agreement (the
"Shareholder Agreement") between The Profit Recovery Group International, Inc.
and First Union National Bank in substantially the form of the draft of such
agreement dated July 28, 2000 delivered to the Lenders and (ii) acknowledge that
the non-cash
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dividend of one "Right" (as defined in the Shareholder Agreement) granted to the
shareholders of the Borrower (the "Shareholders") in respect of each share of
common stock of the Borrower does not constitute a Restricted Payment. Each such
Right entitles the Shareholders to purchase securities of the Borrower pursuant
to the terms and subject to the conditions set forth in the Shareholder
Agreement.
3. Conditions Precedent.
(a) This Amendment shall become effective upon the
receipt by the Agent of counterparts of this Amendment, duly executed
by the Borrower, the Subsidiary Guarantors, the Agent and the Required
Lenders.
(b) The Agent shall have received satisfactory evidence
that the Shareholder Protection Agreement has been duly adopted.
4. Miscellaneous.
(a) The term "Credit Agreement" as used in each of the
Credit Documents shall hereafter mean the Credit Agreement as amended
by this Amendment. Except as herein specifically agreed, the Credit
Agreement, and the obligations of the Credit Parties thereunder and
under the other Credit Documents, are hereby ratified and confirmed and
shall remain in full force and effect according to their terms.
(b) The Credit Parties acknowledge and confirm (i) that
the Agent, on behalf of the Lenders, has a valid and enforceable first
priority security interest in the Collateral, (ii) that the Borrower's
obligation to repay the outstanding principal amount of the Loans and
reimburse the Issuing Lender for any drawing on a Letter of Credit is
unconditional and not subject to any offsets, defenses or
counterclaims, (iii) that the Agent and the Lenders have performed
fully all of their respective obligations under the Credit Agreement
and the other Credit Documents, and (iv) by entering into this
Amendment, the Lenders do not waive or release any term or condition of
the Credit Agreement or any of the other Credit Documents or any of
their rights or remedies under such Credit Documents or applicable law
or any of the obligations of any Credit Party thereunder.
(c) The Credit Parties represent and warrant to the
Lenders that (i) the representations and warranties of the Credit
Parties set forth in Section 6 of the Credit Agreement are true and
correct as of the date hereof, (ii) no event has occurred and is
continuing which constitutes a Default or an Event of Default and (iii)
no Credit Party has any counterclaims, offsets, credits or defenses to
the Credit Documents and the performance of its obligations thereunder,
or if any Credit Party has any such claims, counterclaims, offsets,
credits or defenses to the Credit Documents or any transaction related
to the Credit Documents, same are hereby waived, relinquished and
released in consideration of the Lenders' execution and delivery of
this Amendment.
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(d) This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same
instrument. It shall not be necessary in making proof of this Amendment
to produce or account for more than one such counterpart.
(e) This Amendment shall be governed by and construed in
accordance with, the laws of the State of Georgia.
(f) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
(g) The Borrower and the Guarantors, as applicable,
affirm the liens and security interests created and granted in the
Credit Agreement and the Credit Documents and agree that this Amendment
shall in no manner adversely affect or impair such liens and security
interests.
(h) Each Credit Party hereby represents and warrants as
follows:
(i) Each Credit Party has taken all necessary
action to authorize the execution, delivery and performance of
this Amendment.
(ii) This Amendment has been duly executed and
delivered by the Credit Parties and constitutes each of the
Credit Parties' legal, valid and binding obligations,
enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium
or similar laws affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
(iii) No consent, approval, authorization or order
of, or filing, registration or qualification with, any court
or governmental authority or third party is required in
connection with the execution, delivery or performance by any
Credit Party of this Amendment.
(i) The Guarantors (i) acknowledge and consent to all of
the terms and conditions of this Amendment, (ii) affirm all of their
obligations under the Credit Documents and (iii) agree that this
Amendment and all documents executed in connection herewith do not
operate to reduce or discharge the Guarantors' obligations under the
Credit Agreement or the other Credit Documents.
(j) This Amendment together with the other Credit
Documents represent the entire agreement of the parties and supersedes
all prior agreements and understandings, oral or written if any,
relating to the Credit Documents or the transactions contemplated
herein and therein.
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Each of the parties hereto has caused a counterpart of this Amendment
to be duly executed and delivered as of the date first above written.
BORROWER: THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC., a Georgia corporation
By: /s/ SCOTT COLABUONO
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Name: Scott Colabuono
Title: Executive Vice President and C.F.O.
SUBSIDIARY
GUARANTORS: PRGFS, INC.
PRGLS, INC.
PRGRS, INC., each a Delaware corporation
By: /s/ SCOTT COLABUONO
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Name: Scott Colabuono
Title: Executive Vice President and C.F.O.
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SUBSIDIARY
GUARANTORS: THE PROFIT RECOVERY GROUP
INTERNATIONAL I, INC.
THE PROFIT RECOVERY GROUP U.K., INC.
THE PROFIT RECOVERY GROUP ASIA,
INC.
THE PROFIT RECOVERY GROUP CANADA,
INC.
THE PROFIT RECOVERY GROUP NEW
ZEALAND, INC.
THE PROFIT RECOVERY GROUP
NETHERLANDS, INC.
THE PROFIT RECOVERY GROUP BELGIUM,
INC.
THE PROFIT RECOVERY GROUP MEXICO,
INC.
THE PROFIT RECOVERY GROUP FRANCE,
INC.
THE PROFIT RECOVERY GROUP
AUSTRALIA, INC.
THE PROFIT RECOVERY GROUP
GERMANY, INC.
PRG INTERNATIONAL HOLDING
COMPANY, INC.
THE PROFIT RECOVERY GROUP
SWITZERLAND, INC.
THE PROFIT RECOVERY GROUP SOUTH
AFRICA, INC.,
THE PROFIT RECOVERY GROUP
SPAIN, INC.
THE PROFIT RECOVERY GROUP
ITALY, INC.,
PAYMENT TECHNOLOGIES, INC., each a
Georgia corporation
By: /s/ SCOTT COLABUONO
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Name: Scott Colabuono
Title: Executive Vice President and C.F.O.
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AGENT: BANK OF AMERICA, N.A.,
(formerly NationsBank, N.A.),
individually in its capacity as a
Lender and in its capacity as Agent
By:
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Name:
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Title:
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LENDERS: UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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WACHOVIA BANK, N.A.
By:
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Name:
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Title:
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FLEET NATIONAL BANK
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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SUNTRUST BANK, ATLANTA
By:
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Name:
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Title:
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By:
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Name:
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Title:
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CREDIT AGRICOLE INDOSUEZ
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LASALLE BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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