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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period ended March 31, 1999
or
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____________ to _____________
Commission File No. 000-23711
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Acsys, Inc.
(Exact name of registrant as specified in its charter)
Georgia 58-2299173
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
75 Fourteenth Street, Suite 2200, Atlanta, GA 30309
(Address of principal executive offices)
404-817-9440
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(Registrant's telephone number, including area code)
Indicate by check [X] whether the registrant: (1) has filed all reports 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
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The number of outstanding shares of the registrant's Common Stock on May 7, 1999
was 14,485,111.
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Acsys, Inc.
TABLE OF CONTENTS
Item No. Page
- -------- ----
PART I - FINANCIAL INFORMATION
1. Condensed Consolidated Financial Statements (Unaudited):
Condensed Consolidated Balance Sheets as of
March 31, 1999 and December 31, 1998.......................... 3
Condensed Consolidated Statements of Operations
For the Three Months Ended March 31, 1999 and 1998............ 4
Condensed Consolidated Statements of Cash Flows
For the Three Months Ended March 31, 1999 and 1998............ 5
Notes to Condensed Consolidated Financial Statements............ 6
2. Management's Discussion and Analysis of Financial Condition and
Results of Operations............................................. 11
3. Quantitative and Qualitative Disclosures About Market Risk........ 16
PART II - OTHER INFORMATION
6. Exhibits and Reports on Form 8-K.................................. 17
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Part I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
ACSYS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands-except share data)
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
--------------- -------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ - $ 1,777
Accounts receivable, (net of allowances of $1,108 and $958 at
March 31, 1999 and December 31, 1998, respectively) 25,468 22,836
Prepaid expenses and other 4,075 2,073
--------------- -------------
Total current assets 29,543 26,686
PROPERTY AND EQUIPMENT, net 5,480 4,979
GOODWILL AND OTHER INTANGIBLE ASSETS, net 53,994 54,366
OTHER ASSETS 322 332
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Total assets $89,339 $86,363
=============== =============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Bank overdrafts $ 354 $ 1,206
Current portion of long-term debt 41 44
Accounts payable 1,681 2,571
Accrued and other current liabilities 10,169 7,086
Deferred income taxes 413 413
--------------- -------------
Total current liabilities 12,658 11,320
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LONG-TERM DEBT 40,525 38,276
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DEFERRED INCOME TAXES 2,771 2,771
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OTHER LONG-TERM LIABILITIES 224 293
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COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY:
Common stock, no par value, 45,000,000 shares authorized
14,471,011 and 14,452,466 issued and outstanding at
March 31, 1999 and December 31, 1998, respectively 30,548 30,499
Retained earnings 2,613 3,204
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Total shareholders' equity 33,161 33,703
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Total liabilities and shareholders' equity $89,339 $86,363
=============== =============
</TABLE>
The accompanying notes are an integral part of these statements
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ACSYS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands - except per share data)
<TABLE>
<CAPTION>
For the three months ended March 31,
------------------------------------
1999 1998
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<S> <C> <C>
SERVICE REVENUES:
Temporary staffing $33,514 $ 19,204
Permanent placement 8,552 5,211
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Total service revenues 42,066 24,415
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DIRECT COST OF SERVICES, consisting of
payroll, payroll taxes and benefit costs for
temporary employees 23,123 13,584
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Gross profit 18,943 10,831
SELLING, GENERAL AND ADMINISTRATIVE
EXPENSES 15,758 9,805
AMORTIZATION AND DEPRECIATION 701 254
SEVERANCE AND OFFICE CLOSING COSTS 2,829 -
-------------- --------------
Operating income (loss) (345) 772
OTHER INCOME (EXPENSE):
Interest income 8 56
Interest expense (750) (128)
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INCOME (LOSS) BEFORE INCOME TAXES (1,087) 700
Income tax provision (benefit) (496) 3,174
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NET LOSS $ (591) $ (2,474)
============== ==============
NET LOSS PER SHARE:
Basic and diluted net loss per share $(0.04) $( 0.19)
-------------- --------------
Shares used in computing basic and diluted net loss per share 14,457 12,764
============== ==============
</TABLE>
The accompanying notes are an integral part of these statements
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ACSYS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
For the three months ended March 31,
------------------------------------
1999 1998
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<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (591) $ (2,474)
Adjustments to reconcile net loss to net cash
provided by (used in) operating activities-
Amortization and depreciation 701 254
Imputed interest 17 -
Deferred tax expense - 2,876
Changes in operating assets and liabilities net of effect of
purchase acquisitions:
Accounts receivable, net (2,632) (2,083)
Prepaid expenses and other (2,002) 94
Other assets 10 -
Accounts payable (890) (135)
Accrued liabilities and other 3,083 1,648
Other long-term liabilities (69) (40)
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Net cash provided by (used in) operating activities (2,373) 140
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CASH FLOWS FROM INVESTING ACTIVITIES:
Net cash paid for business acquisitions - (959)
Capital expenditures (830) (828)
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Net cash used in investing activities (830) (1,787)
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CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from initial public offering - 20,535
Changes in bank overdrafts (852) (1,309)
Net borrowings on lines of credit - 123
Net borrowings of long-term debt 2,229 -
Repayments of long-term debt - (11,068)
Proceeds from exercise of employee stock options 49 56
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Net cash provided by financing activities 1,426 8,337
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NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (1,777) 6,690
CASH AND CASH EQUIVALENTS, beginning of period 1,777 370
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CASH AND CASH EQUIVALENTS, end of period $ - $ 7,060
============= ==============
</TABLE>
The accompanying notes are an integral part of these statements
5
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ACSYS, INC AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. Company Background
Acsys, Inc. ("the Company") is a specialty professional staffing firm that
operates offices primarily located in metropolitan areas in the Eastern and
Midwestern United States. Since May 1997, the Company has completed numerous
acquisitions of companies which provide temporary and permanent placement
staffing services primarily in the areas of accounting, finance and information
technology.
2. Basis of Presentation
The accompanying condensed consolidated financial statements are unaudited and
have been prepared by the Company pursuant to the rules and regulations of the
Securities and Exchange Commission (the "SEC"). Although the December 31, 1998
balance sheet was derived from audited financial statements, certain information
and footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted pursuant to SEC rules and regulations. The Company believes that the
financial statements include all adjustments of a normal and recurring nature
necessary to present fairly the results of operations, financial position and
cash flows for the periods presented. These financial statements should be read
in conjunction with the financial statements and notes thereto included in the
Company's annual report on Form 10-K. The condensed consolidated financial
statements include the accounts of the Company and its subsidiaries. All
material intercompany balances and transactions have been eliminated. Interim
results of operations are not necessarily indicative of results to be expected
for the entire year.
The Company's future results of operations involve a number of risks and
uncertainties. Factors that could affect the Company's future operating results
and cause actual results to vary materially from expectations include, but are
not limited to the following: the Company's relatively brief combined operating
history, our ability to implement internal controls and reporting systems, risks
associated with opening new offices and offering new services, the availability
of qualified personnel to staff and supervise new offices, our ability to
identify, acquire and integrate acquisitions, the possible effects of a downturn
in the economy, the demand for temporary staffing and permanent placement
services in our markets, the general level of economic activity and
unemployment, existing and emerging competition, the availability of capital to
fund acquisitions, our ability to maintain sufficient profit margins despite
pricing pressures, the changing regulatory environment, the transactional nature
of the permanent placement staffing business and our ability to address the Year
2000 issue.
3. Initial Public Offering
In February 1998, the Company completed its initial public offering ("IPO") of
2,842,500 shares of common stock at a price of $8.50 per share, generating net
cash proceeds of approximately $20.1 million after deducting underwriters'
discount and offering costs of approximately 2.4 million.
In connection with the IPO, the Company terminated its S corporation status and
recorded in the first quarter of 1998 income tax expense and a corresponding net
deferred tax liability of approximately $3,000,000, representing the tax effect
of differences in bases in assets and liabilities for financial reporting and
income tax purposes.
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4. Debt
March 31, December 31,
1999 1998
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(In thousands)
Revolving Credit Facility...................... $ 39,920 $ 37,660
Non-compete agreements with former
shareholder of Infinity Enterprises, Inc.,
maturing February 2009....................... 990 1,017
Other.......................................... - 4
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40,910 38,681
Less--Unamortized discount..................... (344) (361)
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40,566 38,320
Less--Current portion.......................... (41) (44)
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$ 40,525 $ 38,276
============ ============
In April 1999, the Company amended its revolving credit facility (the "Credit
Facility") to increase the principal amount of money it could borrow from $40.0
million to $80.0 million. At March 31, 1999, the Company had borrowed
approximately $39.9 million under the Credit Facility, none of which is
classified as current. Borrowings under the Credit Facility have been used to
finance the Company's business acquisitions and for general corporate purposes.
Interest accrues at a variable rate indexed, at the Company's option, at the
bank's prime rate or the London Interbank Offered Rate ("LIBOR"), each plus an
applicable margin which varies based on certain leverage ratio requirements.
Accordingly, interest rates may vary from the prime rate to the prime rate plus
1.0% or from LIBOR plus 1.5% to LIBOR plus 2.5%, based on the Company's
Consolidated Leverage Ratio (as such term is defined in the Credit Facility),
provided, however, that until the end of quarter ending September 30, 1999, the
applicable margin shall be 3.0%.
The Credit Facility contains customary affirmative covenants and certain
operating and financial covenants. The financial covenants include, without
limitation, requirements to not exceed a certain consolidated leverage ratio, to
maintain a certain consolidated fixed charge coverage ratio and a consolidated
net worth, and to not exceed certain consolidated capital expenditures and
rental payments levels.
5. Mergers, Acquisitions, and Pro Forma Financial Information
Pooling Transaction
On May 22, 1998, the Company acquired all of the outstanding stock of ICON
Search and Consulting, Inc. ("ICON"), an Atlanta-based information technology
staffing company, in a stock-for-stock merger. This transaction was accounted
for as a pooling of interests for accounting purposes and as a tax-free
reorganization. Under the terms of the merger agreement, ICON shareholders
received 2,820,360 shares of Common Stock in exchange for all of the equity
interests in ICON. In connection with the merger, the Company recorded a charge
for combination expenses of $1.7 million in 1998, including investment banking,
legal and accounting fees, and other transaction costs associated with the
merger.
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Purchase Transactions
On August 4, 1998, the Company acquired all of the outstanding stock of Staffing
Edge, Inc. ("Staffing Edge"), a specialty professional staffing firm with
offices throughout the Midwestern United States, for $22.5 million in cash,
81,766 shares of Common Stock with an estimated fair value of $838,000,
transaction costs of $2.1 million and assumption of debt of $7.0 million. The
Company has accounted for this transaction under the purchase method of
accounting. The excess of the purchase price over the estimated fair value of
net assets acquired, of approximately $32.5 million, was recorded as goodwill
and is being amortized on a straight line basis over forty years. The results
of operations for Staffing Edge are included from the date of acquisition.
On July 1, 1998, the Company acquired all of the outstanding stock of KPD
Systems, Inc. ("KPD"), an information technology staffing firm located on Long
Island, New York. The Company accounted for this transaction under the purchase
method of accounting. The results of operations for KPD are included from the
date of acquisition.
On March 31, 1998, the Company acquired all of the outstanding stock of TGS
Resources Group, Inc. ("TGS"), an accounting and finance staffing firm located
in Richmond, Virginia. The Company has accounted for this transaction under the
purchase method of accounting. The results of operations of TGS are included
from the date of acquisition.
The following unaudited pro forma consolidated results of operations assume that
all of the above purchases occurred on January 1, 1998, and that the Company
incurred incremental interest expense on debt presumed to be incurred to fund
the acquisitions. Additionally, these pro forma results reflect an adjustment
to officer and employee compensation based upon employment agreements entered
into upon the closing of certain of the Company's acquisitions.
Prior to February 5, 1998, the Company was an S corporation and not subject to
income taxes. These pro forma results include adjustments to reflect the
Company as a taxable entity during all periods presented:
Three Months ended March 31,
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1999 1998
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(In thousands, except per share data)
Pro forma revenue $ 42,066 $ 32,005
Pro forma net income (loss) (591) 307
Diluted earnings (loss) per share $ (0.04) $ 0.02
Diluted shares 14,457 13,368
6. Commitments and Contingencies
From time to time, the Company is involved in litigation incidental to its
business, including employment practices claims assessed by individuals or
governmental agencies. There is currently no litigation which management
believes is material.
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7. Severance and Office Closing Costs
During the first quarter of 1999, the Company announced plans to reduce future
selling, general, and administrative costs. These plans included the closure of
an under-performing office and the termination of certain former employees,
principally related to integration efforts. The charge taken in the first three
months ended March 31, 1999 related to these actions was $2.8 million of which
approximately $2.4 million related to severance costs and $400,000 related to
office closing costs. Approximately $1.2 million of these severance and office
closing costs will be paid in periods after March 31, 1999.
8. Supplemental Cash Flow Information
During the three months ended March 31, 1999 and 1998, the Company paid interest
expense of $600,000 and $131,000, respectively.
During the three months ended March 31, 1999 and 1998, the Company paid income
taxes of $819,000 and $0, respectively.
9. Segment and Related Information
The Company operates throughout major metropolitan markets in the United States.
Within each market, the Company offers a variety of placement services that
result in differing profit margins. The Company has three reportable segments:
Permanent Placement, Temporary Services, and IT Contract Services. While there
is cross selling, these segments are managed separately as each business
generally offers different services, has distinct candidate and client pools,
and requires different marketing strategies.
The Permanent Placement segment provides contingency-based placement services
for clients by identifying, evaluating and recommending qualified candidates;
the permanent placement segment generates revenue equal to a percentage of a
candidate's first year annual salary. The Temporary Services segment provides
professional and clerical employees to clients, generally billing clients on an
hourly basis. The IT Contract Services segment provides clients on a
contracted or hourly basis to assist in enterprise resource planning or ERP
software implementation and other systems integration services.
The Company does not allocate depreciation expense or assets to the segment due
to the nature of the Company's service-based operations, which are not capital
intensive. Depreciation expense is included in Corporate Overhead Expense for
each of three months ended March 31, 1999 and 1998. The Company evaluates
performance based on profit or loss from operations before depreciation,
amortization, interest and income taxes.
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The revenues and operating income (loss) for each of the three identifiable
business segments are as follows:
For the three months ended
March 31,
---------------------------
Revenues: 1999 1998
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(in thousands)
Permanent Placements $ 8,552 $ 5,211
Temporary Services 19,754 11,754
IT Contract Services 13,760 7,450
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$ 42,066 $ 24,415
========= ==========
Operating Income (Loss):
Permanent Placements $ 1,028 $ 371
Temporary Services 2,376 836
IT Contract Services 1,655 530
Corporate Overhead Expense (2,575) (965)
Severance and Office Closing Costs (2,829) -
--------- ----------
$ (345) $ 772
========= ==========
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
This report contains "forward-looking statements" within the meaning of Section
27A of the Securities Act of 1933, as amended and Section 21E of the Securities
Exchange Act of 1934, as amended. These statements relate to future economic
performance, plans and objectives of management for future operations and
projections of revenue and other financial items that are based on the beliefs
of our management, as well as assumptions made by, and information currently
available to, our management. The words "expect," "estimate," "anticipate,"
"believe," "intend," and similar expressions are intended to identify forward-
looking statements. Such statements involve assumptions, uncertainties and
risks, such as the transactional nature of the permanent placement staffing
business, industry and economic conditions and other factors as discussed in
this and our other filings with the Securities and Exchange Commission,
including the "Risk Factors" section of the prospectus included in our
Registration Statement on Form S-1 (File number 333-67437), as declared
effective by the Securities and Exchange Commission on December 1, 1998. If one
or more of these risks or uncertainties materialize or underlying assumptions
prove incorrect, actual outcomes may vary materially from those indicated.
Introduction
Acsys is one of the leading specialty professional staffing and permanent
placement firms in the United States. We operate more than 40 offices serving
major metropolitan markets across the United States, with a more significant
presence in the Eastern and Midwestern United States. We were formed in March
1997 and since our formation have acquired 11 businesses.
The results of operations of TGS Resources Group, Inc ("TGS"), KPD Systems, Inc.
("KPD") and Staffing Edge, Inc. ("Staffing Edge") are included beginning March
31, 1998, July 1, 1998 and August 4, 1998 (their respective dates of
acquisition). As a result, combined results may not be comparable to or
indicative of future performance. Our revenues and expenses may be significantly
affected by the number and timing of the acquisition of additional businesses,
the opening of additional offices or the introduction of new services. The
timing of such expansion activities may also affect period-to-period
comparisons.
Results of Operations
Historical Results for the Three Months Ended March 31, 1999 Compared to
Historical Results for the Three Months Ended March 31, 1998
Service Revenues. Total service revenues increased $17.7 million, or 72.5%, to
$42.1 million for the three months ended March 31, 1999 from $24.4 million for
the corresponding period in 1998. Temporary staffing service revenues,
excluding IT contract service revenue, increased $7.9 million, or 66.9%, to
$19.7 million for the three months ended March 31, 1999 as compared to $11.8
million for 1998. The increase in temporary staffing service revenues is
primarily attributable to the increase in billing rates and the impact of the
acquisitions of TGS, KPD and Staffing Edge. IT contract service revenue
increased $6.3 million, or 84.0% to 13.8 million in 1999 as compared to $7.5
million in 1998 due to the growth of our Enterprise Resource Planning ("ERP")
implementation consulting services, particularly our SAP implementation
services. Permanent placement service revenues increased $3.4 million, or
65.4%, to $8.6 million for the three months ended March 31, 1999 from $5.2
million for the corresponding period in 1998. Permanent placement service
revenues increased primarily due to an increase in the number of permanent
placements and increases resulting from the purchased acquisitions completed
after the first quarter of 1998.
Gross Profit. Gross profit increased $8.1 million, or 75.0%, to $18.9 million
for the three months ended March 31, 1999 from $10.8 million for the
corresponding period in 1998. Gross profit as a percentage of service revenues
increased to 45.0% for the first quarter of 1999 compared to 44.4% for the first
quarter of 1998. The gross profit percentage is comparable between the three
months ended March 31 1999 and 1998.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased $6.0 million, or 61.2%, to $15.8 million for
the three months ended March 31, 1999 from $9.8 million for the three months
ended March 31, 1998, principally due to the purchased acquisitions completed
after the first quarter of 1998. As a percentage of revenues, selling, general
and administrative expenses were 37.5% for the three months ended March 31, 1999
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compared with 40.2% for the corresponding period in 1998. This decrease as a
percentage of revenues is primarily due to spreading overhead costs over a
substantially larger revenue base.
Amortization and Depreciation. Amortization and depreciation expense for the
three months ended March 31, 1999 increased $447,000 from the corresponding
period of 1998. Amortization expense increased in 1999 from the goodwill
arising from the purchased acquisitions completed after the first quarter of
1998. Depreciation expense in 1999 increased principally as a result of capital
expenditures.
Severance and Office Closing Costs. During the first quarter of 1999, we
announced plans to reduce future selling, general, and administrative costs.
These plans included the closure of an under-performing office and the
termination of certain former employees, principally related to integration
efforts. The charge taken in the first three months ended March 31, 1999 related
to these actions was $2.8 million, of which approximately $2.4 million related
to severance costs and $400,000 related to office closing costs. Approximately
$1.2 million of these severance and office closing costs will be paid in periods
after March 31, 1999.
Other Expense, net. For the three months ended March 31, 1999, we recorded net
interest expense of $742,000 consisting principally of interest expense under
our credit facility and certain non-compete and severance arrangements. For the
three months ended March 31 1998, we recorded net interest expense of $72,000
consisting principally of interest expense on our credit facility.
Income Tax Expense (Benefit). For the three months ended March 31, 1999, we
recognized an income tax benefit of $496,000 on pre-tax loss of $1.1 million.
In the first quarter of 1998, we recorded a tax liability of approximately $3.0
million, representing the tax effect of differences in bases in assets and
liabilities for financial reporting and income tax purposes. This liability will
be paid over a four-year period.
Net Loss. We recognized a net loss and a net loss per share of $591,000 and
$0.04, respectively, in the first quarter of 1999. In the comparable period for
1998 we recognized a net loss and net loss per share of $2.5 million and $0.19,
respectively.
Liquidity and Capital Resources
For the three months ended March 31, 1999, net cash used for operating
activities was $2.4 million primarily due to an increase in accounts receivable
and prepaid expenses which was only partially offset by an increase in accrued
liabilities. For the three months ended March 31, 1998, cash provided by
operations was $140,000 primarily due to the change in deferred tax expense and
an increase in accrued expenses which was only partially offset by the net loss
and an increase in accounts receivable.
For the three months ended March 31, 1999, net cash used in investing activities
was $830,000 and related principally to capital expenditures. For the three
months ended March 31, 1998, net cash used in investing activities was $1.8
million, of which $959,000 was related to business acquisitions and $828,000 was
related capital expenditures.
For the three months ended March 31, 1999, net cash provided by financing
activities was $1.4 million, principally due to increases in our borrowing under
the Credit Facility (as defined below). For the three months ended March 31,
1998, net cash provided by financing activities
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was $8.3 million, principally due to our IPO which was partially offset by
repayments of long-term debt.
On April 13, 1999, we amended and restated our credit facility with NationsBank,
N.A., as administrative agent (the "Administrative Agent"), and the lenders
party thereto from time to time (the "Credit Facility"). The Credit Facility
consists of an $80.0 million revolving credit facility, including a subfacility
for letters of credit in an amount of $10.0 million and a subfacility for swing
line loans in an amount of $5.0 million.
Loans under the Credit Facility are evidenced by notes and mature on or before
April 13, 2002. Proceeds of the Credit Facility may be used to finance working
capital and general corporate purposes, capital expenditures and permitted
acquisitions.
Interest accrues at a variable rate indexed, at our option, at the
Administrative Agent's prime rate or the London Interbank Offered Rate
("LIBOR"), each plus an applicable margin which varies based on certain leverage
ratio requirements. Accordingly, interest rates may vary from the prime rate to
the prime rate plus 1.0% or from LIBOR plus 1.5% to LIBOR plus 2.5%, based our
Consolidated Leverage Ratio (as such term is defined in the Credit Facility),
provided, however, that until the end of quarter ending September 30, 1999, the
applicable margin shall be 3.0%.
Our obligations under the Credit Facility are secured by a lien on substantially
all of our assets, including our accounts receivable, inventory, equipment,
general intangibles and other property. Additionally, the Credit Facility is
secured by a first priority pledge of the capital stock of our direct and
indirect subsidiaries, as well as any future subsidiary that we may organize or
acquire.
The Credit Facility contains customary affirmative covenants and certain
operating and financial covenants. The financial covenants include, without
limitation, requirements to not exceed a certain consolidated leverage ratio, to
maintain a certain consolidated fixed charge coverage ratio and a consolidated
net worth, and to not exceed certain consolidated capital expenditures and
rental payment levels.
The Nasdaq Stock Market has various requirements for continued listing on the
National Market including a requirement that the minimum bid price per share of
the listed capital stock of each listed company not fall below a certain price
for any 30-consecutive business day period. After the 30-day period, the issuer
has 90 calendar days to achieve compliance by meeting the minimum bid price for
10 consecutive business days. We have received notice from the Nasdaq National
Market that our Common Stock has not met the minimum bid requirement and that we
had until May 12, 1999 to achieve compliance. We did not meet the minimum bid
price for the required number of days before the prescribed period ended. As a
result, we have requested a hearing with NASDAQ at which time we will present a
plan to meet the Nasdaq Stock Market's requirements. There can be no assurance
that such plan will be approved by NASDAQ and if approved whether it will
ultimately be effective. Accordingly, there can be no assurance that we will be
able to continue to list our common stock on the Nasdaq Stock Market's National
Market.
Recent Trends and Developments
In the first quarter of 1999, we generated approximately 16.9% of our revenues
and 8.4% of our gross profit from the placement of contract professionals in
positions related to the implementation of SAP's ERP software. SAP has
announced that it has experienced a slowdown in orders for its software. SAP
believes this slowdown is related to its clients allocating resources away from
ERP implementation in order to address year 2000 issues. In the first quarter
of 1999,
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we experienced a decrease in our SAP implementation staffing business. We
believe this decrease is due to clients allocating their resources away from SAP
implementation to address year 2000 issues and thus, that the decrease will be
temporary. Our belief that this trend is temporary is a forward-looking
statement that is subject to risks and uncertainties. Actual results may differ
materially from our estimate due to a variety of factors, including continued
decreased demand for SAP software and the attendant implementation services.
Year 2000 Computer Issues
Introduction. The Year 2000 issue refers to the problems that result from the
many existing computer software programs and operating systems that use only two
digits rather than four to define the applicable year in a date field. These
programs were designed and developed without considering the impact of the
upcoming change in the century. If not corrected, many computer applications
could fail or create erroneous results by or at the Year 2000.
Acsys' State of Readiness. We have assessed our major IT vendors and technology
providers and are in the process of testing our systems to determine Year 2000
compliance. In addition, we are in the process of assessing our non-IT systems
that utilize embedded technology such as micro-controllers and reviewing them
for Year 2000 compliance.
To operate our business, we rely upon government agencies, utility companies,
providers of telecommunication services, suppliers, and other third party
service providers ("Primary Service Providers"), over which we assert little
control. Our ability to conduct our core business depends upon the ability of
these Primary Service Providers to fix their Year 2000 issues and to the extent
they cannot or do not fix their Year 2000 issues, our financial condition could
be materially and adversely affected. In addition, our customers may experience
Year 2000 issues that could have a material adverse effect on their business and
their need for our services, which in turn could have a material adverse effect
on our business.
We use various software packages in conducting and accounting for our temporary
staffing, permanent placement and general accounting operations. These packages,
among other things, track and accumulate temporary staff time and client
billings, process staff payroll, and produce financial statements and other
financial data. We use software packages and hardware in certain locations that
may not be Year 2000 compliant.
We expect that our information systems integration efforts will enable us to be
fully Year 2000 compliant, although we cannot guarantee that software
represented by vendors as Year 2000 compliant will in fact be compliant.
Further, we use third-party payroll processing companies, and although we expect
that these companies will be Year 2000 compliant, no assurances can be given in
that regard. We could acquire an entity that is not Year 2000 compliant.
Depending on the size of the entity acquired, noncompliance could negatively
affect our results of operations.
Costs to Address Acsys' Year 2000 Issues. We expense costs associated with
Year 2000 system changes as the costs are incurred except for system change
costs that we would otherwise capitalize. To date we have incurred costs of
approximately $750,000 in connection with our Year 2000 compliance plan (our
"Year 2000 Plan"), and we expect to spend an additional $250,000 to complete our
Year 2000 Plan. The financial impact of these expenses has not been material,
and we do not expect future remediation costs to be material to our consolidated
financial position or results of operations. We cannot estimate the future costs
incurred as a result of Year 2000 issues suffered by our Primary Service
Providers and customers, and we cannot be assured that we will successfully
address the Year 2000 issues present in our own systems.
14
<PAGE>
Risks Presented by Year 2000 Issues. We have begun the system testing phase of
our Year 2000 Plan. As a result of system integration testing, we may identify
areas of our business that are at risk of Year 2000 disruption. The absence of
any such determination at this point represents only the status currently in the
implementation of our Year 2000 Plan, and should not be construed to mean that
there is no area of our business which is at risk of a Year 2000 related
disruption. As noted above, many of our Primary Service Providers and customers
may not appropriately address their Year 2000 issues, the result of which could
have a material adverse effect on our financial condition and results of
operations.
Acsys' Contingency Plans. Our Year 2000 Plan calls for the development of
contingency plans for areas of the business that are susceptible to a
substantive risk of a disruption resulting from a Year 2000 related event.
Because we have only recently begun system integration testing, and have not
fully assessed our risk from potential Year 2000 failures, we have not yet
developed detailed contingency plans specific to Year 2000 events for any
specific area of business. We do, however, maintain contingency plans, outside
of the scope of the Year 2000 issue, designed to address various other business
interruptions. We are prepared for the possibility that system integration
testing may hereafter identify certain areas of business at risk. Consistent
with our Year 2000 Plan, we will develop specific Year 2000 contingency plans
for such areas of business as and if such determinations are made.
The estimates and conclusions included in this discussion contain forward-
looking statements and are based on management's best estimates of future
events. Acsys' expectations about risks, future costs and the timely completion
of its Year 2000 modifications may turn out to be incorrect and any variance
from these expectations could cause actual results to differ materially from
what has been discussed above. Factors that could influence risks, amount of
future costs and the effective timing of remediation efforts include Acsys'
success in identifying and correcting potential Year 2000 issues and the ability
of third parties to appropriately address their Year 2000 issues. The foregoing
Year 2000 discussion and the information contained herein is provided as a "Year
2000 Readiness Disclosure" as defined in the Year 2000 Information and Readiness
Disclosure Act of 1998 (Public Law 105-271, 112 Stat. 2386) enacted on October
19, 1998.
15
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Acsys does not engage in investing in or trading market risk sensitive
instruments. We also do not purchase, for investment, hedging, or for purposes
"other than trading," instruments that are likely to expose Acsys to market
risk, whether interest rate, foreign currency exchange, commodity price or
equity price risk, except as discussed in the following paragraph. We have not
entered into any forward or futures contracts, purchased any options or entered
into any interest rate swaps. We currently do not have any foreign operations
and thus we do not believe that we have any exposure to foreign currency
exchange rate risk.
We have interest rate risk under our Credit Facility. A change in either our
lender's prime rate, the federal funds rate or the London Inter-Bank Offering
Rate (LIBOR) would affect the rate at which that we could borrow funds under our
existing credit agreement. See Item 2. "Management's Discussion and Analysis of
Financial Condition and Results of Operations-Liquidity and Capital Resources"
for a further discussion of the terms of our Credit Facility.
16
<PAGE>
Part II
Other Information
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
Exhibit
Number Description
- ------------ -----------
10.12.5 Amended and Restated Revolving Credit Agreement, dated April 13,
1999, by and among Acsys, Inc. (f/k/a ICCE, Inc.), as Borrower,
and NationsBank, N.A., as Administrative Agent and the Lenders
Party Thereto from Time to Time
27 Financial Data Schedule.
(b) Reports on Form 8-K
Acsys did not file any Current Reports on Form 8-K during the three
months ended March 31, 1999.
17
<PAGE>
Acsys, Inc.
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.
Acsys, Inc.
------------------------------------------
(registrant)
Date: May 14, 1999 /s/ Brady Mullinax, Jr.
------------ ------------------------------------------
Brady Mullinax, Jr.
Chief Financial Officer
(the registrant's principal financial and
chief accounting officer, who is duly
authorized to sign this report)
18
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------------ -----------
10.12.5 Amended and Restated Revolving Credit Agreement, dated April 13,
1999, by and among Acsys, Inc. (f/k/a ICCE, Inc.), as Borrower,
and NationsBank, N.A., as Administrative Agent and the Lenders
Party Thereto from Time to Time
27 Financial Data Schedule.
19
<PAGE>
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
by and among
ACSYS, INC. (f/k/a ICCE, INC.), as Borrower,
and
NATIONSBANK, N.A.,
as Administrative Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
April 13, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE I Definitions and Terms 3
-----------------------------------------------------------------------
1.01. Amendment and Restatement 3
-----------------------------------------------------------------------
1.02. Definitions 3
-----------------------------------------------------------------------
1.03. Accounting Terms 28
-----------------------------------------------------------------------
1.04. Cross References 28
-----------------------------------------------------------------------
1.05. Headings and References 28
-----------------------------------------------------------------------
1.06. Accounting and Financial Determinations 28
-----------------------------------------------------------------------
1.07. General Provisions Relating to Definitions 29
-----------------------------------------------------------------------
1.08. Attorneys' Fees 29
-----------------------------------------------------------------------
1.09. References to Time. 30
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ARTICLE II The Loans 31
-----------------------------------------------------------------------
2.01. Revolving Credit Facility 31
-----------------------------------------------------------------------
2.02. Payment of Interest 33
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2.03. Payment of Principal 34
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2.04. Non-Conforming Payments 34
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2.05. Bank Account 35
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2.06. Notes 35
-----------------------------------------------------------------------
2.07. Reductions 35
-----------------------------------------------------------------------
2.08. Conversions and Elections of Subsequent Interest Periods 35
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2.09. Pro Rata Payments 36
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2.10. Commitment Fee 36
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2.11. Deficiency Advances 37
-----------------------------------------------------------------------
2.12. Use of Proceeds 37
-----------------------------------------------------------------------
2.13. Swing Line. 37
-----------------------------------------------------------------------
2.14. Autoborrow Service Agreement. 38
-----------------------------------------------------------------------
ARTICLE III Letters of Credit 39
----------------------------------------------------------------------
3.01. Letters of Credit 39
-----------------------------------------------------------------------
3.02. Reimbursement and Participations 39
-----------------------------------------------------------------------
3.03. Letter of Credit Facility Fee. 42
-----------------------------------------------------------------------
3.04. Administrative Fees. 42
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ARTICLE IV Change in Circumstances 43
-----------------------------------------------------------------------
4.01. Increased Cost and Reduced Return 43
-----------------------------------------------------------------------
4.02. Limitation on Types of Loans 45
-----------------------------------------------------------------------
4.03. Illegality 45
-----------------------------------------------------------------------
4.04. Treatment of Affected Loans 46
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4.05. Compensation 47
-----------------------------------------------------------------------
4.06. Taxes 47
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4.07. Replacement Banks 49
-----------------------------------------------------------------------
</TABLE>
i
<PAGE>
<TABLE>
<C> <S> <C>
ARTICLE V Security 51
-----------------------------------------------------------------------
5.01. Guaranty. 51
-----------------------------------------------------------------------
5.02. Subsidiary Securities Pledge. 51
-----------------------------------------------------------------------
5.03. Security Interests. 51
-----------------------------------------------------------------------
5.04. Further Assurances. 52
-----------------------------------------------------------------------
ARTICLE VI Conditions to Making Loans 52
-----------------------------------------------------------------------
6.01. Conditions of Initial Advance, Swing Line Loan and Letter of Credit 52
-----------------------------------------------------------------------
6.02. Conditions of Loans and Letters of Credit 54
-----------------------------------------------------------------------
6.03. Conditions Subsequent of Loans and Letters of Credit. 56
-----------------------------------------------------------------------
ARTICLE VII Representations and Warranties 56
----------------------------------------------------------------------
7.01. Representations and Warranties 56
-----------------------------------------------------------------------
ARTICLE VIII Affirmative Covenants 63
---------------------------------------------------------------------
8.01. Financial Reports, Etc. 63
-----------------------------------------------------------------------
8.02. Maintain Properties 65
-----------------------------------------------------------------------
8.03. Existence, Qualification, Etc 65
-----------------------------------------------------------------------
8.04. Regulations and Taxes 65
-----------------------------------------------------------------------
8.05. Insurance. 65
-----------------------------------------------------------------------
8.06. True Books 65
-----------------------------------------------------------------------
8.07. Pay Indebtedness to Lenders and Perform Other Covenants 65
-----------------------------------------------------------------------
8.08. Right of Inspection 66
-----------------------------------------------------------------------
8.09. Observe all Laws 66
-----------------------------------------------------------------------
8.10. Officer's Knowledge of Default 66
-----------------------------------------------------------------------
8.11. Suits or Other Proceedings 66
-----------------------------------------------------------------------
8.12. Notice of Discharge of Hazardous Material or Environmental Complaint. 66
-----------------------------------------------------------------------
8.13. Environmental Compliance 66
-----------------------------------------------------------------------
8.14. Indemnification 67
-----------------------------------------------------------------------
8.15. Further Assurances 67
-----------------------------------------------------------------------
8.16. ERISA Requirements 67
-----------------------------------------------------------------------
8.17. Continued Operations 68
-----------------------------------------------------------------------
8.18. Use of Proceeds 68
-----------------------------------------------------------------------
8.19. New Subsidiaries 68
-----------------------------------------------------------------------
8.20. Year 2000 Compliance 72
-----------------------------------------------------------------------
ARTICLE IX Negative Covenants 72
-----------------------------------------------------------------------
9.01. Consolidated Leverage Ratio 72
-----------------------------------------------------------------------
9.02. Consolidated Fixed Charge Coverage Ratio. 72
-----------------------------------------------------------------------
9.03. Consolidated Net Worth. 72
-----------------------------------------------------------------------
9.04. Capital Expenditures. 73
-----------------------------------------------------------------------
9.05. Consolidated Rental Expense. 73
-----------------------------------------------------------------------
9.06. Indebtedness 73
-----------------------------------------------------------------------
9.07. Transfer of Assets 74
-----------------------------------------------------------------------
9.08. Investments; Acquisitions 74
-----------------------------------------------------------------------
9.09. Liens 75
-----------------------------------------------------------------------
9.10. Restricted Payments 75
-----------------------------------------------------------------------
</TABLE>
ii
<PAGE>
<TABLE>
<C> <S> <C>
9.11. Merger or Consolidation 76
-----------------------------------------------------------------------
9.12. Change in Control 76
-----------------------------------------------------------------------
9.13. Transactions with Affiliates 76
-----------------------------------------------------------------------
9.14. ERISA 76
-----------------------------------------------------------------------
9.15. Dissolution, etc 77
-----------------------------------------------------------------------
9.16. Rate Hedging Obligations 77
-----------------------------------------------------------------------
9.17. Negative Pledge Clauses 77
-----------------------------------------------------------------------
9.18. Prepayments, Etc. of Indebtedness. 78
-----------------------------------------------------------------------
ARTICLE X Events of Default and Acceleration 78
-----------------------------------------------------------------------
10.01. Events of Default 78
-----------------------------------------------------------------------
10.02. Agent to Act 81
-----------------------------------------------------------------------
10.03. Cumulative Rights 81
-----------------------------------------------------------------------
10.04. No Waiver 81
-----------------------------------------------------------------------
10.05. Allocation of Proceeds 81
-----------------------------------------------------------------------
ARTICLE XI The Agent 82
-----------------------------------------------------------------------
11.01. Appointment, Powers and Immunities 82
-----------------------------------------------------------------------
11.02. Reliance by Agent 83
-----------------------------------------------------------------------
11.03. Defaults 83
-----------------------------------------------------------------------
11.04. Rights as Lender 84
-----------------------------------------------------------------------
11.05. Indemnification 84
-----------------------------------------------------------------------
11.06. Non-Reliance on Agent and Other Lenders 84
-----------------------------------------------------------------------
11.07. Resignation of Agent 85
-----------------------------------------------------------------------
11.08. Fees 85
-----------------------------------------------------------------------
ARTICLE XII Miscellaneous 86
----------------------------------------------------------------------
12.01. Assignments and Participations 86
-----------------------------------------------------------------------
12.02. Notices 88
-----------------------------------------------------------------------
12.03. Right of Setoff; Adjustments 90
-----------------------------------------------------------------------
12.04. Survival 91
-----------------------------------------------------------------------
12.05. Expenses and Indemnification 91
-----------------------------------------------------------------------
12.06. Amendments and Waivers 92
-----------------------------------------------------------------------
12.07. Counterparts 92
-----------------------------------------------------------------------
12.08. Termination 92
-----------------------------------------------------------------------
12.09. Severability 93
-----------------------------------------------------------------------
12.10. Entire Agreement 93
-----------------------------------------------------------------------
12.11. Agreement Controls 93
-----------------------------------------------------------------------
12.12. Usury Savings Clause 93
-----------------------------------------------------------------------
12.13. Confidentiality 94
-----------------------------------------------------------------------
12.14. Governing Law; Waiver of Jury Trial. 94
-----------------------------------------------------------------------
EXHIBIT A Applicable Commitment Percentages 1
-----------------------------------------------------------------------
EXHIBIT B Form of Assignment and Acceptance 1
-----------------------------------------------------------------------
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative 5
-----------------------------------------------------------------------
</TABLE>
iii
<PAGE>
<TABLE>
<C> <S> <C>
EXHIBIT D-1 Form of Borrowing Notice 2
----------------------------------------------------------------------
EXHIBIT D-2 Form of Borrowing Notice - Swing Line Loans 1
----------------------------------------------------------------------
EXHIBIT E Form of Interest Rate Selection Notice 1
----------------------------------------------------------------------
EXHIBIT F-1 Form of Revolving Note 1
----------------------------------------------------------------------
EXHIBIT F-2 Form of Swing Line Note 1
----------------------------------------------------------------------
EXHIBIT G Form of Amended and Restated Security Agreement 1
----------------------------------------------------------------------
EXHIBIT H Form of Amended and Restated Stock Pledge Agreement 30
----------------------------------------------------------------------
EXHIBIT I Form of Opinion of Borrower's Counsel 1
----------------------------------------------------------------------
EXHIBIT J Compliance Certificate 1
----------------------------------------------------------------------
EXHIBIT K Form of Amended and Restated Guaranty and Suretyship Agreement 1
----------------------------------------------------------------------
</TABLE>
iv
<PAGE>
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of the 13th
day of April, 1999 (the "Agreement"), is made by and among:
ACSYS, INC. (f/k/a ICCE, INC.), a Georgia corporation having its principal
place of business in Atlanta, Georgia (the "Borrower"); and
NATIONSBANK, N.A., a national banking association organized and existing
under the laws of the United States of America and having a principal place of
business in Charlotte, North Carolina ("NationsBank") and each other financial
institution executing and delivering a signature page hereto and each other
Eligible Assignee which may hereafter execute and deliver an instrument of
assignment with respect to this Agreement pursuant to Section 12.01 (hereinafter
-------------
NationsBank and such other financial institutions may be referred to
individually as a "Lender" or collectively as the "Lenders"); and
NATIONSBANK, N.A., in its capacity as Administrative Agent for the Lenders
(in such capacity, the "Agent").
W I T N E S S E T H:
-------------------
WHEREAS, the Borrower, the Agent and NationsBank, as lender have heretofore
entered into a Revolving Credit Agreement dated May 16, 1997, as amended by
Amendment No. 1 to the Credit Agreement dated June 29, 1997 and as further
amended by Amendment No. 2 to the Credit Agreement dated August 3, 1998 and by
Amendment No. 3 to the Credit Agreement ("Amendment No. 3") dated as of the date
hereof and entered into and effective prior hereto (as so amended, the "Existing
Credit Agreement"); and
WHEREAS, pursuant to Amendment No. 3, NationsBank agreed to provide to the
Borrower under the terms of the Existing Credit Agreement a revolving credit
facility of up to $80,000,000; and
WHEREAS, pursuant to an Assignment and Acceptance dated as of the date
hereof and entered into and effective prior hereto among the Agent, NationsBank
as lender under the Existing Credit Agreement, and each Lender, each Lender
became a lender under the Existing Credit Agreement (the "Existing Lenders"),
the Agent was the agent for each Existing Lender under the Existing Credit
Agreement and each Security Instrument (as defined in the Existing Credit
Agreement) and the Borrower issued a promissory note payable to the order of
each Existing Lender (the "Existing Notes"); and
WHEREAS, the Existing Credit Agreement was guaranteed by all of the
Domestic Subsidiaries (as defined in the Existing Credit Agreement) of the
Borrower by Guaranty
A-1
<PAGE>
Agreements (as defined in the Existing Credit Agreement), and the Borrower and
the Guarantors (as defined in the Existing Credit Agreement) have secured their
obligations pursuant to Security Agreements (as defined in the Existing Credit
Agreement); and
WHEREAS, the Borrower has requested that each of the financial institutions
party to the Existing Credit Agreement amend and restate the Existing Credit
Agreement in its entirety in order to, among other things, continue, upon the
terms and conditions set forth herein, to provide a revolving credit facility of
up to $80,000,000 which shall include a $10,000,000 sublimit for the issuance of
standby letters of credit and a $5,000,000 sublimit for swing line loans; and
WHEREAS, the Lenders and the Agent are willing to make such credit
facilities available to the Borrower upon the terms and conditions set forth
herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
A-2
<PAGE>
ARTICLE I
Definitions and Terms
---------------------
1.01. Amendment and Restatement. The Borrower, the Agent and the Lenders
-------------------------
hereby agree that upon the effectiveness of this Agreement, the terms and
provisions of the Existing Credit Agreement shall be and hereby are amended and
restated in their entirety by the terms and conditions of this Agreement and the
terms and provisions of the Existing Credit Agreement, except as otherwise
provided herein, shall be superseded by this Agreement.
This Agreement is given as a substitution of, and not as a payment of, the
obligations of the Borrower under the Existing Credit Agreement and is not
intended to constitute a novation of the Existing Credit Agreement. Except as
otherwise selected by the Borrower by delivery of a Borrowing Notice or Interest
Rate Selection Notice prior to the Closing Date in accordance with the terms
hereof, upon the effectiveness of this Agreement all Obligations outstanding and
owing by the Borrower under the Existing Credit Agreement as of the Closing
Date, shall constitute Obligations hereunder. Base Rate Loans under the
Existing Credit Agreement shall accrue interest at the Base Rate hereunder. The
parties hereto agree that all Eurodollar Rate Loans outstanding under the
Existing Credit Agreement on the Closing Date shall be terminated and repaid and
that in connection therewith the Borrower shall not incur any breakage costs
under Section 3.05 of the Existing Credit Agreement. All of the indebtedness,
liabilities and obligations owing by the Borrower under the Existing Credit
Agreement (i) evidenced by the Existing Notes shall continue to be evidenced by
the Notes issued by the Borrower hereunder in substitution for, and not payment
or novation of, the Existing Notes and (ii) shall continue to be secured by the
"Collateral" as defined in the Existing Credit Agreement and the Borrower
acknowledges and agrees that the "Collateral" as defined in the Existing Credit
Agreement shall continue to constitute "Collateral" hereunder and remains
subject to a security interest in favor of NationsBank in its capacity as Agent
hereunder for the benefit of itself and the Lenders and to secure the
liabilities of the Borrower re-evidenced by this Agreement and the other Loan
Documents.
1.02. Definitions. For the purposes of this Agreement, in addition to the
-----------
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquire" or "Acquisition", as applied to a Person, means the
acquiring or acquisition of a controlling interest in such Person by
purchase (including all or substantially all of the assets), exchange,
issuance of stock or other securities, or by merger, reorganization or
other method.
"Adjusted Consolidated EBITDA" means Consolidated EBITDA; provided,
--------
however, that with respect to any Acquisition which occurs within the Four-
-------
Quarter Period for which the computation thereof is being made,
Consolidated EBITDA shall be adjusted by adding (i) historical pro forma
------
reductions in compensation expense that are
A-3
<PAGE>
substantiated by employment contracts submitted in writing to, and approved
by, the Agent, (ii) certain one-time combination expenses such as
accounting, investment banker, broker and legal fees submitted in writing
to, and approved by, the Agent, and (iii) certain other demonstrable
adjustments submitted in writing to, and approved by, the Required Lenders;
provided, further, that with respect to an Acquisition which is accounted
-------- -------
for as a "purchase", for the Four-Quarter Period following the date of such
Acquisition, the Consolidated EBITDA shall be adjusted to include the
results of operations of the Person or assets so acquired which amounts
shall be determined on an historical pro forma basis for the Four-Quarter
Period preceding or including the date of such Acquisition as if such
Acquisition had been consummated as a "pooling of interest", plus to the
extent applicable, any adjustments made in accordance with Securities and
Exchange Commission Rule 17 CFR 210.11-02.
"Advance" means a borrowing under the Revolving Credit Facility,
consisting of the aggregate principal amount of a Base Rate Loan or a
Eurodollar Rate Loan, as the case may be; provided, however, a Swing Line
-------- -------
Loan shall not constitute an Advance unless and until the Borrower shall
convert such Swing Line Loan to a Revolving Loan in accordance with the
terms of Section 2.13(d).
---------------
"Affiliate" means a Person (i) which directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under
common control with the Borrower; (ii) which beneficially owns or holds 5%
or more of any class of the outstanding voting stock (or in the case of a
Person which is not a corporation, 5% or more of the equity interest) of
the Borrower; or (iii) 5% or more of any class of the outstanding voting
stock of which is beneficially owned or held by the Borrower. The term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through ownership of voting stock, by contract or otherwise.
"Applicable Commitment Fee" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for the
Four-Quarter Period most recently ended as set forth below:
<TABLE>
<CAPTION>
Tier Consolidated Leverage Ratio Applicable Commitment Fee
---- --------------------------- -------------------------
<S> <C> <C>
I Less than or equal to 1.50 to 1.00 0.250%
II Greater than 1.50 to 1.00 0.300%
and less than or equal to 2.00 to 1.00
III Greater than 2.00 to 1.00 0.375%
and less than or equal to 2.50 to 1.00
</TABLE>
A-4
<PAGE>
<TABLE>
<S> <C> <C>
1.00
IV Greater than 2.50 to 1.00 0.375%
and less than or equal to 3.00 to 1.00
1.00
V Greater than 3.00 to 1.00 0.500%
</TABLE>
The Applicable Commitment Fee shall be established at the end of each
fiscal quarter of the Borrower (the "Determination Date"). Any change in
the Applicable Commitment Fee following each Determination Date shall be
determined based upon the computations set forth in the Compliance
Certificate furnished to the Agent pursuant to Section 8.01(a)(ii) and
-------------------
Section 8.01(b)(ii), subject to review and approval of such computations by
-------------------
the Agent, and shall be effective commencing on the date following the date
such Compliance Certificate is received (or, if earlier, the date such
certificate was required to be delivered) until the date following the date
on which a new Compliance Certificate is delivered (or, if a new Compliance
Certificate is delivered later than required, until the date preceding the
date such Compliance Certificate was required to have been delivered);
provided, however, if the Borrower shall fail to deliver any such
-------- -------
Compliance Certificate within the time period required by Section 8.01,
------------
then the Applicable Commitment Fee shall be Tier V until the appropriate
Compliance Certificate is so delivered. From the Closing Date to the date
next following the date the Compliance Certificate for the Four-Quarter
Period ended September 30, 1999 is received, the Applicable Commitment Fee
shall be Tier V.
"Applicable Commitment Percentage" means, with respect to each Lender
at any time, a fraction, the numerator of which shall be such Lender's
Revolving Credit Commitment and the denominator of which shall be the Total
Revolving Credit Commitment, which Applicable Commitment Percentage for
each Lender as of the Closing Date is as set forth in Exhibit A; provided
--------- --------
that the Applicable Commitment Percentage of each Lender shall be increased
or decreased to reflect any assignments to or by such Lender effected in
accordance with Section 12.01.
-------------
"Applicable Lending Office" means, for each Lender and for each Type
of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan on the signature pages hereof or
such other office of such Lender (or an affiliate of such Lender) as such
Lender may from time to time specify to the Agent and the Borrower by
written notice in accordance with the terms hereof as the office by which
its Loans of such Type are to be made and maintained.
"Applicable Margin" means that percent per annum set forth below which
shall be based upon the Consolidated Leverage Ratio for the Four-Quarter
Period most recently ended as specified below:
A-5
<PAGE>
<TABLE>
<CAPTION>
Tier Consolidated Leverage Ratio Applicable Applicable Margin for
---- --------------------------- Margin for Base Eurodollar Rate Loans
Rate Loans ---------------------
----------------
<S> <C> <C> <C>
I Equal to or less than 1.50 to 1.00 0.00% 1.50%
II Greater than 1.50 to 1.00 0.25% 1.75%
and less than or equal to 2.00 to 1.00
III Greater than 2.00 to 1.00 0.50% 2.00%
and less than or equal to 2.50 to 1.00
IV Greater than 2.50 to 1.00 0.75% 2.25%
and less than or equal to 3.00 to 1.00
V Greater than 3.00 to 1.00 1.00% 2.50%
</TABLE>
The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change in the
Applicable Margin following each Determination Date shall be determined
based upon the computations set forth in the Compliance Certificate
furnished to the Agent pursuant to Section 8.01(a)(ii) and Section
------------------- -------
8.01(b)(ii), subject to review and approval of such computations by the
-----------
Agent, shall be effective commencing on the date following the date such
Compliance Certificate is received (or, if earlier, the date such
Compliance Certificate was required to be delivered) until the date
following the date on which a new Compliance Certificate is delivered (or,
if a new Compliance Certificate is delivered later than required, until the
date preceding the date such Compliance Certificate was required to have
been delivered); provided, however, if the Borrower shall fail to deliver
-------- -------
any such Compliance Certificate within the time period required by Section
-------
8.01, then the Applicable Margin shall be Tier V until the appropriate
----
Compliance Certificate is so delivered. From the Closing Date to the date
next following the date the Compliance Certificate for the Four-Quarter
Period ended September 30, 1999 is received, the Applicable Margin shall be
3.00%.
"Assignment and Acceptance" shall mean an Assignment and Acceptance
substantially in the form of Exhibit B (with blanks appropriately filled
---------
in) delivered to the Agent in connection with an assignment of a Lender's
interest under this Agreement pursuant to Section 12.01.
-------------
"Authorized Representative" means any of the President, any Vice
President, the Chief Financial Officer, the Manager of Financial Reporting,
the Manager of Accounting or the Controller of the Borrower or any other
person expressly designated by the Board of Directors of the Borrower (or
the appropriate committee thereof) as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form
attached hereto as Exhibit C.
---------
A-6
<PAGE>
"Base Rate Loan" means any Loan for which the rate of interest is
determined by reference to the Base Rate.
"Base Rate" means, for any day, the rate per annum equal to the sum of
(a) the greater of (i) the Prime Rate for such day or (ii) the Federal
Funds Rate for such day plus 0.5% and (b) the Applicable Margin for Base
Rate Loans. Any change in the Base Rate due to a change in the Prime Rate
or Federal Funds Rate shall be effective on the effective date of such
change in the Prime Rate or Federal Funds Rate.
"Base Rate Refunding Loan" means a Base Rate Loan made either (i) to
satisfy Reimbursement Obligations arising from a drawing under a Letter of
Credit or (ii) to pay NationsBank in respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve System (or
any successor body).
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with (i) an Advance under the Revolving Credit
Facility or (ii) a Swing Line Loan in the form attached hereto as Exhibits
--------
D-1 and D-2, respectively.
--- ----
"Business Day" means, (i) except as expressly provided in clause (ii),
any day which is not a Saturday, Sunday or a day on which banks in the
States of New York and North Carolina are authorized or obligated by law,
executive order or governmental decree to be closed, and (ii) with respect
to the selection, funding, interest rate, payment and Interest Period of
any Eurodollar Rate Loan and Floating Eurodollar Rate Swing Line Loans, any
day which is a Business Day as described above, and on which the relevant
international financial markets are open for the transaction of business
contemplated by this Agreement in London, England, New York, New York and
Charlotte, North Carolina.
"Capital Expenditures" means, with respect to the Borrower and its
Subsidiaries, for any period the sum of (without duplication) all
---
expenditures (whether paid in cash or accrued as liabilities) by the
Borrower or any Subsidiary during such period for items that would be
classified as "property, plant or equipment" or comparable items on the
consolidated balance sheet of the Borrower and its Subsidiaries, including
without limitation all transactional costs incurred in connection with such
expenditures provided the same have been capitalized, excluding, however,
the amount of any Capital Expenditures paid for with proceeds of casualty
insurance.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with Generally Accepted Accounting Principles as
in effect from time to time including Statement No. 13 of the Financial
Accounting Standards Board and any successor thereof.
A-7
<PAGE>
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections 13(d)(3) and
(14(d)(2) of the Exchange Act), other than Persons owning 30% or more of
the Voting Securities of the Borrower on the Closing Date, either (A)
becomes the "beneficial owner" (as defined in Rule 13d-3 of the Exchange
Act), directly or indirectly, of Voting Securities of the Borrower (or
securities convertible into or exchangeable for such Voting Securities)
representing 30% or more of the combined voting power of all Voting
Securities of the Borrower (on a fully diluted basis) or (B) otherwise has
the ability, directly or indirectly, to elect a majority of the board of
directors of the Borrower;
(ii) during any period of up to 18 consecutive months, commencing on
the Closing Date, individuals who at the beginning of such 18-month period
were directors of the Borrower shall cease for any reason (other than (A)
the death, disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer of the
Borrower replaces such Person as a director or (B) the death or disability
of any director) to constitute a majority of the board of directors of the
Borrower;
(iii) any Person or two or more Persons, other than those Persons
listed in clause (ii) hereof, acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation thereof, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling
influence on the management or policies of the Borrower.
"Closing Date" means the date as of which this Agreement is executed
by the Borrower, the Agent and the Lenders and on which the conditions set
forth in Section 6.01 hereof have been satisfied.
------------
"Code" means the Internal Revenue Code of 1986, as amended, any
successor provision or provisions and any regulations promulgated
thereunder.
"Collateral" means, collectively, all property of the Borrower, any
Subsidiary or any other Person in which the Agent or any Lender is granted
a Lien as security for all or any portion of the Obligations under any
Security Instrument.
"Consistent Basis" in reference to the application of Generally
Accepted Accounting Principles means the accounting principles observed in
the period referred to are comparable in all material respects to those
applied in the preparation of the audited financial statements of the
Borrower and its Subsidiaries referred to in Section 7.01(f)(i) hereof.
------------------
A-8
<PAGE>
"Consolidated EBITDA" means, with respect to the Borrower and its
Subsidiaries for the Four-Quarter Period ending on the date of computation
thereof, the sum of, without duplication, (i) Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) state and federal taxes on income (to
the extent accrued by the Borrower and its Subsidiaries), (iv)
amortization, and (v) depreciation all determined on a consolidated basis
in accordance with GAAP applied on a Consistent Basis.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to the
Borrower and its Subsidiaries for the Four-Quarter Period ending on the
date of computation thereof, the ratio of (a) (i) Adjusted Consolidated
EBITDA for such period less (ii) Capital Expenditures for such period less
---- ----
(iii) taxes accrued by the Borrower and its Subsidiaries on income during
such period to (b) Consolidated Fixed Charges.
"Consolidated Fixed Charges" means, with respect to Borrower and its
Subsidiaries, for the Four-Quarter Period ending on the date of computation
thereof, the sum of, without duplication, (i) Consolidated Interest Expense
---
and (ii) required principal payments of Consolidated Funded Indebtedness,
including, without duplication, payments required to be made with respect
to Capital Leases, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis.
"Consolidated Funded Indebtedness" means, as of the date of
computation thereof, the sum of (i) Indebtedness for Money Borrowed (other
---
than intercompany Indebtedness), including any liability associated with an
earn-out obligation arising in connection with an Acquisition which is
recorded as a liability on the consolidated balance sheet of the Borrower
and its Subsidiaries (ii) Subordinated Indebtedness, (iii) Guaranties, and
(iv) the stated amount of outstanding letters of credit plus any unpaid
reimbursement obligations related to drawn letters of credit, in each case
of the Borrower and its Subsidiaries, all as determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles applied
on a Consistent Basis.
"Consolidated Gross Revenues" means, with respect to the Borrower and
its Subsidiaries for the Four-Quarter Period ending on the date of
computation thereof, the gross revenues from operations determined on a
consolidated basis in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis.
"Consolidated Interest Expense" means, with respect to the Borrower
and its Subsidiaries for the Four-Quarter Period ending on the date of
computation thereof, the gross interest expense of the Borrower and its
Subsidiaries, including without limitation (i) the amortization of debt
discounts, (ii) the amortization of all fees (including, without
limitation, fees payable in respect of a Swap Agreement and letters of
credit) payable in connection with the incurrence of Indebtedness to the
extent included in interest expense, and (iii) the portion of any
liabilities incurred in connection with Capital Leases allocable
A-9
<PAGE>
to interest expense, all determined on a consolidated basis in accordance
with Generally Accepted Accounting Principles applied on a Consistent
Basis.
"Consolidated Leverage Ratio" means, as of the date of computation
thereof, the ratio of Consolidated Funded Indebtedness to Adjusted
Consolidated EBITDA.
"Consolidated Net Income" means, with respect to the Borrower and its
Subsidiaries for the Four-Quarter Period ending on the date of computation
thereof, Consolidated Gross Revenues less all operating and non-operating
expenses of the Borrower and its Subsidiaries including taxes on income,
all determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis; but excluding
(for all purposes other than compliance with Section 9.03 hereof) as
------------
income: (i) net gains on the sale, conversion or other disposition of
capital assets, (ii) net gains on the acquisition, retirement, sale or
other disposition of capital stock and other securities of the Borrower or
its Subsidiaries, (iii) net gains on the collection of proceeds of life
insurance policies, (iv) any write-up of any asset, and (v) any other net
gain or credit of an extraordinary nature as determined in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis.
"Consolidated Net Worth" means, as of the date of computation thereof,
the consolidated shareholders' equity as determined in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis
(excluding any upward adjustment after the Closing Date due to revaluation
of assets).
"Consolidated Rental Expense" means the gross amount of all lease or
rental payments, whether or not characterized as rent, of the Borrower and
its Subsidiaries, excluding payments in respect of Capital Leases
constituting Indebtedness, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Contingent Obligation" of any Person means all contingent liabilities
required (or which, upon the creation or incurring thereof, would be
required) to be included in the consolidated financial statements of such
Person in accordance with Generally Accepted Accounting Principles applied
on a Consistent Basis, as defined by Statement No. 5 of the Financial
Accounting Standards Board, and any obligation of such Person guaranteeing
or in effect guaranteeing any Indebtedness, dividend or other obligation of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including obligations of such Person however incurred:
(1) to purchase such Indebtedness or other obligation or any
property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for the purchase
or payment of such Indebtedness or other obligation, or (ii) to
maintain a minimum
A-10
<PAGE>
working capital, net worth or other balance sheet condition or any
income statement condition of the primary obligor;
(3) to grant or convey any lien, security interest, pledge,
charge or other encumbrance on any property or assets of such Person
to secure payment of such Indebtedness or other obligation;
(4) to lease property or to purchase securities or other property
or services primarily for the purpose of assuring the owner or holder
of such Indebtedness or obligation of the ability of the primary
obligor to make payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness or such
obligation of the primary obligor against loss in respect thereof;
with respect to Contingent Obligations, such liabilities shall be computed
at the amount which, in light of all the facts and circumstances existing
at the time, represent the present value of the amount which can reasonably
be expected to become an actual or matured liability.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.08 hereof of a Eurodollar Rate Loan from
------------
one Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.08 or Article V of one Type of Loan into another Type
------------ ---------
of Loan.
"Cost of Acquisition" means, as at the date of entering into any
agreement to Acquire any Person, the sum of the following without
duplication: (i) the amount of any cash and fair market value of other
property given as consideration, including at such date the deferred
payment of any such amounts, (ii) the amount (determined by using the
outstanding amount or the amount payable at maturity, whichever is greater)
of any Indebtedness incurred, assumed or acquired by the Borrower or any
Subsidiary in connection with such Acquisition, (iii) all amounts paid in
respect of covenants not to compete and consulting agreements that should
be recorded on the financial statements of the Borrower and its
Subsidiaries in accordance with GAAP, and other affiliated contracts in
connection with such Acquisition, (iv) the aggregate fair market value of
all other consideration given by the Borrower or any Subsidiary (other than
any shares of common stock of the Borrower or any Subsidiary) in connection
with such Acquisition, and (v) out of pocket transaction costs for the
services and expenses of attorneys, accountants and other consultants
incurred in effecting such transaction, and other similar transaction costs
so incurred; provided, however, that the Cost of Acquisition shall not
-------- -------
include the value of the capital stock of the Borrower to be transferred in
connection therewith. For
A-11
<PAGE>
purposes of determining the Cost of Acquisition for any transaction
accomplished pursuant to the exercise of options or warrants or the
conversion of securities, the Cost of Acquisition shall include both the
cost of acquiring such option, warrant or convertible security as well as
the cost of exercise or conversion.
"Default" means any event or condition which, with the giving or
receipt of notice or lapse of time or both, would constitute an Event of
Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate Loan,
until the end of the Interest Period applicable thereto, a rate of two
percent (2%) above the Eurodollar Rate applicable to such Loan, and
thereafter at a rate of interest per annum which shall be two percent (2%)
above the Base Rate, (ii) with respect to Base Rate Loans, Swing Line
Loans, Reimbursement Obligations, fees and other amounts payable in respect
of Obligations or (except as otherwise expressly provided therein) the
obligations of any other Loan Party under any of the other Loan Documents,
at a rate of interest per annum which shall be two percent (2%) above the
Base Rate and (iii) in any case, the maximum rate permitted by applicable
law, if lower.
"Direct Foreign Subsidiary" means any Foreign Subsidiary a majority of
whose outstanding Voting Securities is owned by the Borrower or a Domestic
Subsidiary.
"Dollars" and the symbol "$" means dollars constituting legal tender
for the payment of public and private debts in the United States of
America;
"Domestic Subsidiary" means any Subsidiary of the Borrower organized
under the laws of the United States of America or a state or territory
thereof.
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a Lender;
and (iii) any other financial institution approved by the Agent and, unless
an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 12.01, the Borrower, such
-------------
approval not to be unreasonably withheld or delayed by the Borrower and
such approval to be deemed given by the Borrower if no objection is
received by the assigning Lender and the Agent from the Borrower within two
Business Days after written notice of such proposed assignment has been
provided by the assigning Lender to the Borrower; provided, however, that
-------- -------
if the Borrower would be subject to increased costs or a tax withholding
requirement under Article IV as a result of any assignment to an Eligible
----------
Assignee, the Borrower may withhold consent; provided, further, that
-------- -------
neither the Borrower nor an affiliate of the Borrower shall qualify as an
Eligible Assignee.
A-12
<PAGE>
"Eligible Securities" means the following obligations and any other
obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under the laws of any
state of the United States of America or under the laws of any other
nation, payable in the United States of America, expressed to mature not
later than 92 days following the date of issuance thereof and rated in an
investment grade rating category by S&P and Moody's;
(c) interest bearing demand or time deposits issued by a Lender or
certificates of deposit maturing within one year from the date of issuance
thereof and issued by a bank or trust company organized under the laws of
the United States or of any state thereof having capital surplus and
undivided profits aggregating at least $400,000,000 and being rated A-3 or
better by S&P or A or better by Moody's;
(d) Repurchase Agreements;
(e) Pre-Refunded Municipal Obligations;
(f) shares of mutual funds which invest in obligations described in
paragraphs (a) through (g) above, the shares of which mutual funds are at
all times rated "AAA" by S&P;
(g) asset-backed remarketed certificates of participation representing
a fractional undivided interest in the assets of a trust, which
certificates are rated at least "A-1" by S&P and "P-1" by Moody's;
(h) tax-exempt or taxable adjustable rate preferred stock issued by a
Person having a rating of its long term unsecured debt of "A" or better by
S&P or "A-3" or better by Moody's; and
(i) investments made and held, and obligations purchased and payable
thereto, in compliance at all times with the Investment Policy Standard.
"Employee Benefit Plan" means (i) any employee benefit plan, including
any Pension Plan, within the meaning of Section 3(3) of ERISA which (A) is
maintained for employees of the Borrower or any of its ERISA Affiliates, or
any Subsidiary or is assumed by the Borrower or any of its ERISA
Affiliates, or any Subsidiary in connection with any Acquisition or (B) has
within the last six years been maintained for the employees of the
Borrower, any current or former ERISA Affiliate, or any Subsidiary and
(ii) any plan, arrangement, understanding or scheme maintained by the
Borrower or any Subsidiary that provides retirement, deferred compensation,
employee or retiree medical or life insurance,
A-13
<PAGE>
severance benefits or any other benefit covering any employee or former
employee and which is administered under any Foreign Benefit Law or
regulated by any Governmental Authority other than the United States of
America.
"Environmental Laws" means any federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license
regulating, relating to, or imposing liability or standards of conduct
concerning, any environmental matters or conditions, environmental
protection or conservation, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended;
the Superfund Amendments and Reauthorization Act of 1986, as amended; the
Resource Conservation and Recovery Act, as amended; the Toxic Substances
Control Act, as amended; the Clean Air Act, as amended; the Clean Water
Act, as amended; together with all regulations promulgated thereunder, and
any other "Superfund" or "Superlien" law.
"ERISA" means, at any date, the Employee Retirement Income Security
Act of 1974, as amended, and the regulations thereunder, all as the same
shall be in effect at such date.
"ERISA Affiliate," as applied to the Borrower, means any Person or
trade or business which is a member of a group which is under common
control with the Borrower, who together with the Borrower, is treated as a
single employer within the meaning of Section 414(b) and (c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of interest is
determined by reference to the Eurodollar Rate; provided, however, Swing
-------- -------
Line Loans shall not constitute Eurodollar Rate Loans.
"Eurodollar Reserve Requirement" means, at any time, the maximum rate
at which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) by member banks of the Federal
Reserve System against "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by
such member banks with respect to (i) any category of liabilities which
includes deposits by reference to which the Eurodollar Rate is to be
determined, or (ii) any category of extensions of credit or other assets
which include Eurodollar Rate Loans. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Eurodollar Rate" means, for the Interest Period for any Eurodollar
Rate Loan, the rate of interest per annum calculated according to the
following formula:
A-14
<PAGE>
Eurodollar Interbank Offered Rate Applicable
----------------------
Rate = 1-Eurodollar Reserve + Margin
Requirement
"Event of Default" means any of the occurrences set forth as such in
Section 10.01 hereof.
-------------
"Facility Termination Date" means such date as all of the following
shall have occurred: (a) the Borrower shall have permanently terminated the
Revolving Credit Facility by payment in full of all Revolving Credit
Outstandings, Swing Line Outstandings and Letter of Credit Outstandings,
together with all accrued and unpaid interest thereon, except for such
issued and undrawn Letters of Credit as have been fully cash collateralized
in a manner consistent with the terms of Section 10.1(B), (b) all Revolving
---------------
Credit Commitments and Letter of Credit Commitments shall have terminated
or expired, and (c) the Borrower shall have paid and satisfied in full all
Obligations (other than obligations of the Borrower under Swap Agreements
and Obligations consisting of continuing indemnities and other contingent
obligations of the Borrower or any Guarantor that may be owing to the
Lenders pursuant to the Loan Documents and expressly survive termination of
this Agreement).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate charged to the Agent (in its individual capacity)
on such day on such transactions as determined by the Agent.
"Fiscal Year" means the twelve month fiscal period of the Borrower and
its Subsidiaries commencing on January 1 of each calendar year and ending
on December 31 of each calendar year.
"Floating Eurodollar Rate" means, as of each Business Day, the
Eurodollar Rate for a one month Interest Period commencing on such Business
Day, as determined for each Business Day on which a Swing Line Loan is
outstanding that bears interest at the Floating Eurodollar Rate.
"Floating Eurodollar Rate Swing Line Loan" means a Swing Line Loan
that bears interest at the Floating Eurodollar Rate.
A-15
<PAGE>
"Foreign Benefit Law" means any applicable statute, law, ordinance,
code, rule, regulation, order or decree of any foreign nation or any
province, state, territory, protectorate or other political subdivision
thereof regulating, relating to, or imposing liability or standards of
conduct concerning, any Employee Benefit Plan.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is not
a Domestic Subsidiary.
"Four-Quarter Period" means a period of four full consecutive fiscal
quarter periods of the Borrower, taken together as one accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means those
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American Institute of Certified Public
Accountants or which have other substantial authoritative support and are
applicable in the circumstances as of the date of a report, as such
principles are from time to time supplemented and amended.
"Government Securities" means direct obligations of, or obligations
the timely payment of principal and interest on which are fully and
unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state, municipal,
national or other governmental department, commission, board, bureau,
agency or instrumentality or political subdivision thereof or any entity or
officer exercising executive, legislative or judicial, regulatory or
administrative functions of or pertaining to any government or any court,
in each case whether of a state of the United States, the United States or
a foreign governmental entity.
"Guaranties" means all obligations of the Borrower or any Subsidiary
directly or indirectly guaranteeing, or in effect guaranteeing, any
Indebtedness for Money Borrowed of any other Person.
"Guarantors" means the Subsidiaries of the Borrower who are required
to execute and deliver to the Agent a Guaranty Agreement at the Closing
Date or thereafter pursuant to Section 8.19 hereof.
------------
"Guaranty Agreement" means collectively (or individually as the
context may indicate) (i) the Amended and Restated Guaranty and Suretyship
Agreement among the Guarantors and the Agent dated as of the Closing Date
and (ii) any additional Guaranty and Suretyship Agreement delivered to the
Agent pursuant to Section 8.19, as the same may be amended, modified,
------------
supplemented or amended and restated from time to time.
A-16
<PAGE>
"Hazardous Material" means and includes any pollutant, contaminant or
hazardous, toxic or dangerous waste, substance or material (including,
without limitation petroleum products, asbestos-containing material and
lead), the generation, handling, storage, disposal, treatment, release,
discharge or emission of which is subject to any Environmental Law.
"Indebtedness" means with respect to any Person, without duplication,
all Indebtedness for Money Borrowed, all indebtedness of such Person for
the acquisition of property, all indebtedness secured by any Lien on the
property of such Person whether or not such indebtedness is assumed, all
liability of such Person by way of endorsements (other than for collection
or deposit in the ordinary course of business), all Contingent Obligations,
all letters of credit, all Rate Hedging Obligations and other items which
in accordance with Generally Accepted Accounting Principles is classified
as a liability on a balance sheet other than accrued expenses and accrued
taxes; but excluding all accounts payable in the ordinary course of
business so long as payment therefor is due within one year; provided that
in no event shall the term Indebtedness include partners' capital, surplus
and retained earnings, minority interest in Persons, lease obligations
(other than pursuant to Capital Leases), reserves for current and deferred
income taxes and investment credits, other deferred credits and reserves,
and deferred compensation obligations.
"Indebtedness for Money Borrowed" means all indebtedness in respect of
money borrowed, including without limitation, all obligations under Capital
Leases, the deferred purchase price of any property or asset, and payment
and reimbursement obligations in respect of surety bonds, letters of
credit, and bankers' acceptances, whether or not matured, evidenced by a
promissory note, bond or similar written obligation for the payment of
money (including, but not limited to, reimbursement agreements and
conditional sales or similar title retention agreements).
"Interbank Offered Rate" means, with respect to any Loan bearing
interest at a rate determined by reference to the Eurodollar Rate or the
Floating Eurodollar Rate, for the Interest Period applicable thereto, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "Interbank Offered Rate" shall mean,
for any such Loan for any such Interest Period therefor, the rate per annum
(rounded upwards, if necessary, the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is specified
-------- -------
on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic
mean of all such rates.
A-17
<PAGE>
"Interest Period" for each Eurodollar Rate Loan means a period
commencing on the date such Eurodollar Rate Loan is made or Converted and
each subsequent period commencing on the last day of the immediately
preceding Interest Period for such Eurodollar Rate Loan, and ending, at the
Borrower's option, on the date one, two, three or six months thereafter as
notified to the Agent by the Authorized Representative three (3) Business
Days prior to the beginning of such Interest Period; provided, that,
--------
(i) if the Authorized Representative fails to notify the Agent of
the length of an Interest Period three (3) Business Days prior to the
first day of such Interest Period, the Loan for which such Interest
Period was to be determined shall be deemed to be a Base Rate Loan as
of the first day thereof;
(ii) if an Interest Period for a Eurodollar Rate Loan would end on
a day which is not a Business Day such Interest Period shall be
extended to the next Business Day (unless such extension would cause
the applicable Interest Period to end in the succeeding calendar
month, in which case such Interest Period shall end on the next
preceding Business Day);
(iii) any Interest Period which begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
(iv) no Interest Period shall extend past the Revolving Credit
Termination Date; and
(v) on any day there shall not be in effect more than five (5)
Interest Periods.
"Interest Rate Selection Notice" means the written notice delivered by
an Authorized Representative in connection with the election of a
subsequent Interest Period for any Eurodollar Rate Loan or to Convert a
Loan or Loans of any Type hereunder, as such election or conversion shall
be otherwise permitted herein. Any Interest Rate Selection Notice shall be
binding on and irrevocable by the Borrower and in the form attached hereto
as Exhibit E and incorporated herein by reference.
---------
"Investment Policy Standard" means that certain investment policy
standard for the Borrower which has been approved by the Agent and a copy
of which is attached hereto as Schedule 1.1. The "Investment Policy
------------
Standard" shall not be amended, altered or changed in any manner without
the prior written consent of the Required Lenders.
"Issuing Bank" means NationsBank as issuer of Letters of Credit under
Article III or any successor.
------------
A-18
<PAGE>
"LC Account Agreement" means the LC Account Agreement dated as of the
Closing Date between the Borrower and the Agent, as amended, modified,
supplemented or amended and restated from time to time.
"Letter of Credit" means a standby letter of credit issued by the
Issuing Bank pursuant to Article III hereof for the account of the Borrower
-----------
in favor of a Person advancing credit or securing an obligation on behalf
of the Borrower or any of its Subsidiaries.
"Letter of Credit Commitment" means, with respect to each Lender, the
obligation of such Lender to acquire Participations in respect of Letters
of Credit and Reimbursement Obligations up to an aggregate amount at any
one time outstanding equal to such Lender's Applicable Commitment
Percentage of the Total Letter of Credit Commitment as the same may be
increased or decreased from time to time pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in Article
-------
III hereof providing for the Issuance of Letters of Credit by the Issuing
---
Bank for the account of the Borrower in an aggregate stated amount at any
time outstanding not exceeding the Total Letter of Credit Commitment.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all Letters
of Credit plus all Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation owed to,
or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but
not limited to the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes. For the
purposes of this Agreement, the Borrower and its Subsidiaries shall be
deemed to be the owners of any property which any of them have acquired or
hold subject to a conditional sale agreement, financing lease, or other
arrangement pursuant to which title to the property has been retained by or
vested in some other Person for security purposes.
"Loan" or "Loans" means any of the Revolving Loans or Swing Line
Loans.
"Loan Documents" means this Agreement, the Notes, the Guaranty
Agreements, the Security Instruments and all other instruments and
documents heretofore or hereafter executed or delivered to and in favor of
the Agent for the benefit of the Lenders in connection with the Loans made
and transactions contemplated under this Agreement, as the same may be
amended, modified or supplemented from the time to time.
"Loan Parties" means the Borrower and the Guarantors.
A-19
<PAGE>
"Material Adverse Effect" means a material adverse effect on (i) the
business, properties, operations or condition, financial or otherwise, of
the Borrower and any of its Subsidiaries taken as a whole, (ii) the ability
of the Loan Parties as a whole to pay or perform the obligations,
liabilities and indebtedness under the Loan Documents as such payment or
performance becomes due in accordance with the terms thereof, or (iii) the
rights, powers, and remedies of the Agent or any Lender under any Loan
Document or the validity, legality or enforceability thereof (including for
purposes of clauses (ii) and (iii) the imposition of burdensome conditions
thereon).
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation and its successors and assigns.
"Multi-employer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making, or is accruing an obligation to make, contributions or has made, or
been obligated to make, contributions within the preceding six (6) Fiscal
Years.
"NationsBank" means NationsBank, N.A. and its successors and assigns.
"Notes" means collectively, the Revolving Notes and the Swing Line
Note.
"Obligations" means the obligations, liabilities and Indebtedness of
the Borrower with respect to (i) the principal and interest on the Loans as
evidenced by the Notes, (ii) the Reimbursement Obligations and otherwise in
respect of Letters of Credit, (iii) all liabilities of Borrower to the
Lenders which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of the
Borrower to the Lenders hereunder, under any one or more of the other Loan
Documents or with respect to the Loans.
"Outstandings" means, collectively, at any date, the sum of the Letter
of Credit Outstandings plus the Swing Line Outstandings plus the Revolving
Credit Outstandings on such date.
"Participation" means, with respect to any Letter of Credit or Swing
Line Loan, respectively, the extension of credit represented by the
participation of a Lender (other than the Issuing Bank or the Swing Line
Lender, as applicable) of such Lender hereunder in the liability of the
Issuing Bank in respect of a Letter of Credit issued or in the obligations
due the Swing Line Lender in respect of a Swing Line Loan made in
accordance with the terms hereof, respectively.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
A-20
<PAGE>
"Pension Plan" means any employee pension benefit plan within the
meaning of Section 3(2) of ERISA, other than a Multiemployer Plan, which is
subject to the provisions of Title IV of ERISA or Section 412 of the Code
and which (i) is maintained for employees of the Borrower or any of its
ERISA Affiliates or is assumed by the Borrower or any of its ERISA
Affiliates in connection with any Acquisition or (ii) has at any time been
maintained for the employees of the Borrower or any current or former ERISA
Affiliate.
"Permitted Liens" means:
(a) Liens created under the Security Instruments in favor of the Agent
and the Lenders, and otherwise existing as of the date hereof and as set
forth in Schedule 7.01(g);
----------------
(b) Liens imposed by law for taxes, assessments or charges of any
Governmental Authority for claims not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP and which liens are not yet
enforceable against other creditors;
(c) statutory Liens of landlords and liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law or created in the
ordinary course of business and in existence less than 90 days from the
date of creation thereof for amounts not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted and
with respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP and which Liens are not yet
enforceable against other creditors;
(d) Liens incurred or deposits made in the ordinary course of business
(including, without limitation, surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and other
types of social security benefits or to secure the performance of tenders,
bids, leases, contracts (other than for the repayment of Indebtedness)
statutory obligations and other similar obligations or arising as a result
of progress payments under government contracts;
(e) any Lien existing on any properties of any Person at the time it
becomes a Subsidiary of the Borrower pursuant to Section 8.19 which were
------------
incurred to secure payment of purchase money Indebtedness financing the
acquisition of such properties by such Person, whether or not assumed by
the Borrower or such Subsidiary; provided, in either event any such Lien
--------
was not incurred or granted in anticipation of, or as part of a series of
transactions related to, such acquisition of such Subsidiary;
A-21
<PAGE>
(f) pledges or deposits for the purpose of securing a stay or
discharge in the course of any legal proceeding arising in the course of
ordinary business and which could not reasonably be expected to have a
Material Adverse Effect;
(g) Liens consisting of encumbrances in the nature of zoning
restrictions, easements, rights and restrictions of record on the use of
real property on the date of acquisition thereof which do not materially
detract from the value of such property or impair the use thereof;
(h) any Lien in favor of the United States of America or any
department or agency thereof, or in favor of any state government or
political subdivision thereof, or in favor of a prime contractor under a
government contract of the United States, or of any state government or any
political subdivision thereof, and, in each case, resulting from acceptance
of partial, progress, advance or other payments in the ordinary course of
business under government contracts of the United States, or of any state
government or any political subdivision thereof, or subcontracts
thereunder;
(i) Liens securing Indebtedness permitted under Section 9.06(d)
---------------
hereof; and
(j) any Lien renewing, extending, refinancing or refunding any Lien
permitted by clauses (a) through (i) above; provided, however, that the
-------- -------
principal amount secured is not increased, the maturity is not shortened or
accelerated, and the Lien is not extended to any other properties.
"Person" means an individual, partnership, corporation, limited
liability company, trust, unincorporated organization, association, joint
venture or a government or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the context
may indicate), (i) the Amended and Restated Stock Pledge Agreement dated as
of the Closing Date between the Borrower and the Agent for the benefit of
the Agent and the Lenders, and (ii) any additional Stock Pledge Agreement
delivered to the Agent pursuant to Section 8.19 as any of the same may be
------------
hereafter amended, modified, supplemented or amended and restated from
time to time.
"Pledge Agreement Supplement" means collectively, or individually as
the context may indicate, the Pledge Agreement Supplements in the form of
Exhibit A to the Pledge Agreement, delivered pursuant to Section 22 of the
----------
Pledge Agreement.
"Pledged Interests" has the meaning given to such term in the Pledge
Agreement.
"Pre-Refunded Municipal Obligations" means obligations of any state of
the United States of America or of any municipal corporation or other
public body organized under
A-22
<PAGE>
the laws of any such state which are rated, based on the escrow, in the
highest investment rating category by both S&P and Moody's and which have
been irrevocably called for redemption and advance refunded through the
deposit in escrow of Government Securities or other debt securities which
are (i) not callable at the option of the issuer thereof prior to maturity,
(ii) irrevocably pledged solely to the payment of all principal and
interest on such obligations as the same becomes due and (iii) in a
principal amount and bear such rate or rates of interest as shall be
sufficient to pay in full all principal of, interest, and premium, if any,
on such obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
"Prime Rate" means the per annum rate of interest established from
time to time by NationsBank as its prime rate, which rate may not be the
lowest rate of interest charged by NationsBank to its customers.
"Principal Office" means the office of the Agent presently located at
6610 Rockledge Drive, MD2-600-03-02, Bethesda, Maryland 20817 Attention:
Ms. Barbara Levy, or such other office and address as the Agent may from
time to time designate in writing.
"Rate Hedging Obligations" means any and all obligations of the
Borrower, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (a) any and
all agreements, devices or arrangements designed to protect at least one of
the parties thereto from the fluctuations of interest rates, exchange rates
or forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or cross-
currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts, warrants and those commonly known
as interest rate "swap" agreements; (b) all other "derivative instruments"
as defined in FASB 133 and which are subject to the reporting requirements
of FASB 133; and (c) any and all cancellations, buybacks, reversals,
terminations or assignments of any of the foregoing.
"Registrar" means, with respect to any Person (other than an
individual), the registrar who has been appointed to maintain records for
the registry of ownership of such Person.
"Regulation D" means Regulation D of the Board as the same may be
amended or supplemented from time to time.
"Reimbursement Obligation" means at any time, the obligation, if
required under the terms of this Agreement, of the Borrower with respect to
any Letter of Credit to reimburse the Issuing Bank and the Lenders to the
extent of their respective Participations
A-23
<PAGE>
(including by the receipt by the Issuing Bank of proceeds of Loans pursuant
to Section 3.2) for amounts theretofore paid by the Issuing Bank pursuant
-----------
to a drawing under such Letter of Credit.
"Repurchase Agreement" means a repurchase agreement entered into with
any financial institution whose debt obligations or commercial paper are
rated "A" by either of S&P or Moody's or "A-1" by S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, an aggregate of Lenders on
such date (i) having Credit Exposures (as defined below) aggregating at
least 66% of the aggregate Credit Exposures of all the Lenders on such
date and (ii) from the Closing Date through and including December 31,
1999, consisting of (A) at least two Lenders so long as there are only
three Lenders and (B) at least three Lenders so long as there are more than
three Lenders; provided that any amendment or waiver of Section 9.01 for
-------- ------------
any Four-Quarter Period through and including December 31, 1999 shall
require Lenders on such date having Credit Exposures (as defined below)
aggregating at least 80% of the aggregate Credit Exposures of all Lenders
on such date. For purposes of the preceding sentence, the amount of the
"Credit Exposure" of each Lender shall be equal at all times (a) other than
following the occurrence and during the continuance of an Event of Default,
to its Revolving Credit Commitment, and (b) following the occurrence and
during the continuance of an Event of Default, to the sum of the aggregate
principal amount of such Lender's Applicable Commitment Percentage of
Revolving Credit Outstandings, Letter of Credit Outstandings and Swing Line
Outstandings; provided that, for the purpose of this definition only, (A)
--------
if any Lender shall have failed to fund its Applicable Commitment
Percentage of any Advance, the Revolving Credit Commitment of such Lender
and its Credit Exposure equal to its Applicable Commitment Percentage of
Revolving Credit Outstandings shall be deemed reduced by the amount it so
failed to fund for so long as such failure shall continue and such Lender's
Credit Exposure attributable to such failure shall be deemed held by any
Lender making more than its Applicable Commitment Percentage of such
Advance to the extent it covers such failure, and (B) if any Lender shall
have failed to pay to the Issuing Bank upon demand its Applicable
Commitment Percentage of any drawing under any Letter of Credit resulting
in an outstanding Reimbursement Obligation, the amount of such Lender's
Revolving Credit Commitment and its Credit Exposure equal to its Applicable
Commitment Percentage of such Letter of Credit Outstandings shall be deemed
to be held by the Issuing Bank for purposes of this definition, or (C) if
any Lender shall have failed to pay to the Swing Line Lender upon demand
its Applicable Commitment Percentage of any Swing Line Loan, the amount of
such Lender's Revolving Credit Commitment and its Credit Exposure equal to
its Applicable Commitment Percentage of such Swing Line Outstandings shall
be deemed to be held by the Swing Line Lender for purposes of this
definition.
"Restricted Payment" means (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of the
Borrower or any of its
A-24
<PAGE>
Subsidiaries (other than those payable or distributable solely to the
Borrower or to a Subsidiary of the Borrower which is the immediate parent
of such Subsidiary) now or hereafter outstanding, except a dividend payable
solely in shares of a class of stock to the holders of that class; (b) any
redemption, conversion, call, exchange, retirement or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares
of any class of stock of the Borrower or any of its Subsidiaries (other
than those payable or distributable solely to the Borrower or payable
solely in shares of a class of stock to the holders of that class) now or
hereafter outstanding; (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of the Borrower or any of its Subsidiaries now
or hereafter outstanding; and (d) any issuance and sale of capital stock of
any Subsidiary of the Borrower (or any option, warrant or right to acquire
such stock) other than to the Borrower.
"Revolving Credit Commitment" means, with respect to each Lender, the
obligation of such Lender to make Advances to the Borrower up to an
aggregate principal amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total Revolving Credit
Commitment.
"Revolving Credit Facility" means the facility described in Article II
----------
hereof providing for Loans to the Borrower by the Lenders in the aggregate
principal amount of up to the Total Revolving Credit Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans then
outstanding.
"Revolving Credit Termination Date" means (i) the Stated Termination
Date or (ii) such earlier date of termination of Lenders' obligations
pursuant to Section 10.01 upon the occurrence of an Event of Default, or
-------------
(iii) such date as the Borrower may voluntarily permanently terminate the
Revolving Credit Facility by reduction of the Total Revolving Credit
Commitment to zero and payment in full of all Obligations pursuant to
Section 2.07.
------------
"Revolving Loan" means any borrowing pursuant to an Advance under the
Revolving Credit Facility in accordance with Article II.
----------
"Revolving Notes" means, collectively, the Amended and Restated
Revolving Notes of the Borrower evidencing Revolving Loans executed and
delivered to the Lenders as provided in Section 2.06 hereof substantially
------------
in the form attached hereto as Exhibit F-1, with appropriate insertions as
-----------
to amounts, dates and names of Lenders.
"S&P" means Standard & Poor's Rating Group, a division of McGraw-Hill
Companies, Inc., and its successors and assigns.
A-25
<PAGE>
"Security Agreement" means, collectively (or individually as the
context may indicate) (i) the Amended and Restated Security Agreement dated
as of the Closing Date among the Borrower, certain Guarantors and the
Agent, for the benefit of the Agent and the Lenders, and (ii) any
additional Security Agreement delivered to the Agent pursuant to Section
-------
8.19, as hereafter modified, amended or supplemented from time to time.
----
"Security Instruments" means, collectively, the Pledge Agreement, the
Security Agreement, the LC Account Agreement and all other agreements,
instruments and other documents, whether now existing or hereafter in
effect, pursuant to which the Borrower or any Subsidiary shall grant or
convey to the Agent or the Lenders a Lien in property as security for all
or any portion of the Obligations, as any of them may be amended, modified
or supplemented from time to time.
"Solvent" means, when used with respect to any Person, that at the
time of determination:
(i) the fair value of its assets is in excess of the total amount
of its liabilities, including, without limitation, Contingent
Obligations; and
(ii) it is then able and expects to be able to pay its debts as they
mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"Stated Termination Date" means April 12, 2002.
"Subordinated Indebtedness" means Indebtedness of the Borrower
subordinated to the Obligations in accordance with such terms as shall be
acceptable to the Required Lenders.
"Subsidiary" means any corporation or other entity in which more than
50% of its outstanding voting stock or more than 50% of all equity
interests is owned directly or indirectly by the Borrower and/or by one or
more of the Borrower's Subsidiaries.
"Subsidiary Securities" means the shares of capital stock or the
equivalent equity interests issued by a Domestic Subsidiary or a Direct
Foreign Subsidiary.
"Swap Agreement" means one or more agreements creating Rate Hedging
Obligations with respect to the Obligations evidenced by the Notes between
the Borrower and a Lender, on terms mutually acceptable to such Borrower
and such Lender.
A-26
<PAGE>
"Swing Line Lender" means initially NationsBank as the lender of Swing
Line Loans under Section 2.13 and thereafter any Lender which is successor
------------
to NationsBank as the Lender of Swing Line Loans under Section 2.13.
-------------
"Swing Line" means the revolving line of credit established by the
Swing Line Lender in favor of the Borrower pursuant to Section 2.13.
------------
"Swing Line Loans" means loans made by the Swing Line Lender to the
Borrower pursuant to Section 2.13 or deemed to be Swing Line Loans pursuant
------------
to Section 2.13(e).
----------------
"Swing Line Note" means the promissory note of the Borrower evidencing
Swing Line Loans executed and delivered to the Swing Line Lender as
provided in Section 2.06(b) hereof substantially in the form attached
---------------
hereto as Exhibit F-2.
-----------
"Swing Line Outstandings" means, as of any date of determination, the
aggregate principal amount of all Swing Line Loans then outstanding.
"Termination Event" means: (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (unless the
notice requirement has been waived by applicable regulation); or (ii) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA or was deemed such under Section 4062(e) of
ERISA; or (iii) the termination of a Pension Plan, the filing of a notice
of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination under Section 4041 of ERISA; or (iv) the
institution of proceedings to terminate a Pension Plan by the PBGC; or (v)
any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; or (vi) the partial or complete withdrawal of
the Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302 of
ERISA; or (viii) any event or condition which results in the reorganization
or insolvency of a Multiemployer Plan under Section 4241 or Section 4245 of
ERISA, respectively; or (ix) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by the PBGC of proceedings to terminate a Multiemployer Plan
under Section 4042 of ERISA; or (x) any event or condition with respect to
any Employee Benefit Plan which is regulated by any Foreign Benefit Law
that results in the termination of such Employee Benefit Plan or the
revocation of such Employee Benefit Plan's authority to operate under the
applicable Foreign Benefit Law.
"Total Letter of Credit Commitment" means an amount not to exceed
$10,000,000.
A-27
<PAGE>
"Total Revolving Credit Commitment" means a principal amount equal to
$80,000,000, as reduced from time to time in accordance with Section 2.7.
-----------
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
Eurodollar Rate Loan).
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency."
"Year 2000 Compliant" means all computer applications that are
material to the Borrower's or any of its Subsidiaries' business and
operations will on a timely basis be able to perform properly date-
sensitive functions involving all dates on and after January 1, 2000.
"Year 2000 Problem" means the risk that computer applications used by
the Borrower or any of its Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates on and
after January 1, 2000.
1.03. Accounting Terms. All accounting terms not specifically defined
----------------
herein shall have the meanings assigned to such terms and shall be interpreted
in accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis.
1.04. Cross References. Unless otherwise specified, references in this
----------------
Agreement and in each Loan Document to any Article or Section are references to
such Article or Section of this Agreement or such Loan Document, as the case may
be, and, unless otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of such Section, Article
or definition.
1.05. Headings and References. The headings of the Articles and ections of
-----------------------
this Agreement are inserted for convenience of reference only and are not
intended to be a part of, or to affect the meaning or interpretation of this
Agreement. Words such as "hereof", "hereunder", "herein" and words of similar
import shall refer to this Agreement in its entirety and not to any particular
Section or provisions hereof, unless so expressly specified. As used herein, the
singular shall include the plural, and the masculine shall include the feminine
or a neutral gender, and vice versa, whenever the context requires.
1.06. Accounting and Financial Determinations. Where the character or
---------------------------------------
amount of any asset or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made, for the
purpose of this Agreement, such determination or
A-28
<PAGE>
calculation shall, to the extent applicable, be made in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis except
insofar as:
(a) the Borrower shall have elected (with the concurrence of its
independent public accountant and upon prior written notification to the
Lenders) to adopt more recently promulgated Generally Accepted Accounting
Principles (which election shall continue to be effective for subsequent years);
and
(b) the Agent and the Required Lenders shall have consented to such
election (it being understood that such consent may be conditioned upon the
implementation of such changes to Section 8.01 as appropriate to reflect such
------------
adoption of more recently promulgated Generally Accepted Accounting Principles
and it being further understood that such consent shall be deemed to have been
given upon the implementation of such changes).
Upon a change in Generally Accepted Accounting Principles which becomes
effective after the Closing Date which is the subject of the actions taken in
clauses (a) and (b) above and which would have a material effect on the
Borrower's consolidated financial statements and the assets and liabilities
reflected therein or otherwise affect the calculation or the application of the
covenants contained in Article IX hereof and the determination of the Applicable
----------
Margin and the Applicable Commitment Fee, such accounting change shall not be
given effect for purposes hereof until sixty (60) days from the otherwise
effective date of such change. Prior to such effectiveness the Agent, the
Lenders and the Borrower shall in good faith negotiate to amend the pertinent
provisions of this Agreement to account for such accounting change to the extent
appropriate to effect the substance thereof as of the Closing Date. If such an
amendment is not entered into with respect to any such accounting change, such
accounting change shall not be given effect for purposes hereof.
1.07. General Provisions Relating to Definitions. Terms for which meanings
------------------------------------------
are defined in this Agreement shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The term
"including" means including, without limiting the generality of any description
preceding such term. Each reference herein to any Person shall include a
reference to such Person's successors and assigns. References to any instrument
defined in this Agreement refer to such instrument as originally executed or, if
subsequently varied, replaced or supplemented from time to time, as so varied,
replaced or supplemented and in effect at the relevant time of reference
thereto.
1.08. Attorneys' Fees. Whenever any provision in this Agreement or any
---------------
of the other Loan Documents refers to the obligation of the Borrower or any
Guarantor to reimburse the Agent or any Lender for attorneys' fees incurred by
such Person, the Borrower and any Guarantor shall only be required to reimburse
such Persons for the reasonable and actual attorney's fees incurred and shall
not be responsible for any attorneys' fees imposed by statute based upon any
percentage of outstanding indebtedness.
A-29
<PAGE>
1.09. References to Time. Unless otherwise indicated, all references to any
------------------
time in this Agreement or any of the Loan Documents shall be deemed references
to Charlotte, North Carolina time.
A-30
<PAGE>
ARTICLE II
The Loans
---------
2.01. Revolving Credit Facility
-------------------------
(a) Commitment. Subject to the terms and conditions of this Agreement,
----------
each Lender severally agrees to make Advances of Revolving Loans to the
Borrower, from time to time from the Closing Date until the Revolving Credit
Termination Date on a pro rata basis as to the total borrowing requested by the
Borrower on any day determined by such Lender's Applicable Commitment Percentage
of the Total Revolving Credit Commitment up to but not exceeding the Revolving
Credit Commitment of such Lender, provided, however, that the Lenders will not
-------- -------
be required and shall have no obligation to make any Advance (i) so long as a
Default or an Event of Default has occurred and is continuing; provided further,
-------- --------
that the Required Lenders may elect in writing to make an Advance
notwithstanding such Default or Event of Default unless Section 12.06 requires
-------------
that all of the Lenders must waive the Default or Event of Default or consent to
the underlying actions or conditions resulting in such Default or Event of
Default or (ii) if the Agent (in accordance with the terms of this Agreement)
has accelerated the maturity of any of the Notes as a result of an Event of
Default; provided further, however, that immediately after giving effect to each
-------- -------
Advance, the amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings shall not exceed the Total Revolving
Credit Commitment. Within such limits and subject to the other terms and
conditions of this Agreement, the Borrower may borrow, repay and reborrow
hereunder, on a Business Day from the Closing Date until, but (as to borrowings
and reborrowings) not including, the Revolving Credit Termination Date;
provided, however, that (x) no Eurodollar Rate Loan shall be made which has an
- -------- -------
Interest Period that extends beyond the Stated Termination Date and (y) each
Eurodollar Rate Loan may, subject to the provisions of Section 2.08, be repaid
------------
only on the last day of the Interest Period with respect thereto unless such
payment is accompanied by the additional payment, if any, required by Section
-------
4.05.
- ----
(b) Amounts. The aggregate amount of Revolving Credit Outstandings plus
-------
Letter of Credit Outstandings plus Swing Line Outstandings shall not exceed at
any time the Total Revolving Credit Commitment, and, in the event there shall be
outstanding any such excess, the Borrower shall immediately make such payments
and prepayments as shall be necessary to comply with this restriction. Each
Advance hereunder and each Conversion under Section 2.08 shall be in an amount
------------
of at least (i) $1,000,000 or such greater amount which is an integral multiple
of $250,000 for Eurodollar Loans and (ii) $500,000 or such greater amount which
is an integral multiple of $100,000 for Base Rate Loans (other than Base Rate
Refunding Loans).
(c) Advances. (i) An Authorized Representative shall give the Agent
--------
(A) at least three (3) Business Days' irrevocable telephonic notice of each
Eurodollar Rate Loan (whether representing an additional borrowing or the
Continuation of a borrowing hereunder or the Conversion of a borrowing hereunder
from a Base Rate Loan to a
A-31
<PAGE>
Eurodollar Rate Loan) prior to 10:30 A.M. Charlotte, North Carolina time
and (B) irrevocable telephonic notice of each Base Rate Loan (other than
Base Rate Refunding Loans to the extent the same are effected without
notice pursuant to Section 2.2(c)(iv) and whether representing an
------------------
additional borrowing hereunder or the Conversion of a borrowing hereunder
from a Eurodollar Rate Loan to a Base Rate Loan) prior to 10:30 A.M. on the
day of such proposed Revolving Loan. Each such notice shall be effective
upon receipt by the Agent, shall specify the amount of the borrowing, the
Type of Revolving Loan (Base Rate or Eurodollar Rate), the date of
borrowing and, if a Eurodollar Rate Loan, the Interest Period to be used in
the computation of interest. The Authorized Representative shall provide
the Agent written confirmation of each such telephonic notice in the form
of a Borrowing Notice or Interest Rate Selection Notice (as applicable)
with appropriate insertions but failure to provide such confirmation shall
not affect the validity of such telephonic notice. Notice of receipt of
such Borrowing Notice or Interest Rate Selection Notice, as the case may
be, together with the amount of each Lender's portion of an Advance
requested thereunder, shall be provided by the Agent to each Lender by
telefacsimile transmission with reasonable promptness, but (provided the
Agent shall have received such notice by 10:30 A.M.) not later than 1:00
P.M. on the same day as the Agent's receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified for each
borrowing under this Section 2.01, each Lender shall, pursuant to the terms
------------
and subject to the conditions of this Agreement, make the amount of the
Advance or Advances to be made by it on such day available by wire transfer
to the Agent in the amount of its pro rata share, determined according to
such Lender's Applicable Commitment Percentage of the Revolving Loan or
Revolving Loans to be made on such day. Such wire transfer shall be
directed to the Agent at the Principal Office and shall be in Dollars
constituting immediately available funds. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower by delivery of the proceeds thereof to a demand
deposit account which may be maintained at one or more offices of the Agent
or an agent of the Agent or as shall be directed in the applicable
Borrowing Notice by the Authorized Representative and reasonably acceptable
to the Agent.
(iii) The Borrower shall have the option to elect the duration
of the initial and any subsequent Interest Periods and to Convert the Loans
in accordance with Section 2.08. Eurodollar Rate Loans and Base Rate Loans
------------
may be outstanding at the same time, provided, however, there shall not be
-------- -------
outstanding at any one time Eurodollar Rate Loans having more than five (5)
different Interest Periods. If the Agent does not receive a Borrowing
Notice or an Interest Rate Selection Notice giving notice of election of
the duration of an Interest Period or of Conversion of any Loan to or
Continuation of a Loan as a Eurodollar Rate Loan by the time prescribed by
Section 2.01(c) or 2.08, the Borrower shall be deemed to have elected to
--------------- ----
Convert such Loan to (or Continue such Loan as) a Base Rate Loan until the
Borrower notifies the Agent in accordance with Section 2.08.
------------
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<PAGE>
(iv) Notwithstanding the foregoing, if a drawing is made under
any Letter of Credit, such drawing is honored by the Issuing Bank, and the
Borrower shall not immediately fully reimburse the Issuing Bank in respect
of such drawing from other funds available to the Borrower, (A) provided
that the conditions to making a Revolving Loan as herein provided shall
then be satisfied, the Reimbursement Obligation arising from such drawing
shall be paid to the Issuing Bank by the Agent without the requirement of
notice to or from the Borrower such payment to be advanced as a Base Rate
Refunding Loan made by each Lender under the Revolving Credit Facility in
an amount equal to such Lender's Applicable Commitment Percentage of such
Reimbursement Obligation, and (B) if the conditions to making a Revolving
Loan as herein provided shall not then be satisfied, each of the Lenders
shall fund by payment to the Agent (for the benefit of the Issuing Bank) at
its Principal Office in immediately available funds the purchase from the
Issuing Bank of their respective Participations in the related
Reimbursement Obligation based on their respective Applicable Commitment
Percentages of such Reimbursement Obligation. If a drawing is presented
under any Letter of Credit in accordance with the terms thereof and the
Borrower shall not immediately reimburse the Issuing Bank in respect
thereof, then notice of such drawing shall be provided promptly by the
Issuing Bank to the Agent and the Agent shall provide notice to each Lender
by telephone or telefacsimile transmission. If notice to the Lenders of a
drawing under any Letter of Credit is given by the Agent at or before 12:00
noon on any Business Day, each Lender shall either make a Base Rate
Refunding Loan or fund the purchase of its Participation as specified above
in the amount of such Lender's Applicable Commitment Percentage of such
drawing or payment and shall pay such amount to the Agent for the account
of the Issuing Bank at the Principal Office in Dollars and in immediately
available funds before 2:30 P.M. on the same Business Day. If such notice
to the Lenders is given by the Agent after 12:00 noon on any Business Day,
each Lender shall either make such Base Rate Refunding Loan or fund such
purchase before 12:00 noon on the next following Business Day.
2.02. Payment of Interest. (a) The Borrower shall pay interest to the
-------------------
Agent at the Principal Office for the account of each Lender on the outstanding
and unpaid principal amount of each Revolving Loan made by such Lender for the
period commencing on the date of such Revolving Loan until such Revolving Loan
shall be due at the Eurodollar Rate or the Base Rate, as elected or deemed
elected by the Borrower or otherwise applicable to such Revolving Loan as herein
provided, provided, however, that if any amount shall not be paid when due (at
-------- -------
maturity, by acceleration or otherwise), or if any Event of Default shall have
occurred and be continuing, all amounts outstanding hereunder shall bear
interest thereafter at the Default Rate from the date such amount was due and
payable until the date such amount is paid in full or such Event of Default
shall have been cured or waived.
(b) Interest on each Revolving Loan shall be computed (i) on the
basis of a year of 360 days and calculated for the actual number of days elapsed
for each Eurodollar Rate Loan and (ii) on the basis of a year of 365/366 days
and calculated for the actual number of days
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<PAGE>
elapsed for each Base Rate Loan. Interest on each Loan shall be paid (i)
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing June 30, 1999, on each Base Rate Loan, (ii) on the last day
of the applicable Interest Period for each Eurodollar Rate Loan and, if any
Interest Period extends for more than three months, at intervals of three months
after the first day of the Interest Period in respect of the related Eurodollar
Rate Loan and (iii) upon payment in full of the principal amount of the Loan at
the Revolving Credit Termination Date.
2.03. Payment of Principal. The principal amount of each Revolving Loan
--------------------
shall be due and payable to the Agent for the benefit of each Lender in full on
the Revolving Credit Termination Date, or earlier as herein expressly provided.
The principal amount of any Revolving Loan may be prepaid in whole or in part on
any Business Day, subject to compliance with the last sentence of this Section
-------
2.03 with respect to Eurodollar Rate Loans, upon (A) at least three (3) Business
- ----
Days' irrevocable telephonic notice in the case of each Revolving Loan that is a
Eurodollar Rate Loan from an Authorized Representative (effective upon receipt)
to the Agent prior to 10:30 A.M. and (B) irrevocable telephonic notice in the
case of each Revolving Loan that is a Base Rate Loan from an Authorized
Representative (effective upon receipt) to the Agent prior to 10:30 A.M. on the
day of such proposed repayment. The Authorized Representative shall provide the
Agent written confirmation of each such telephonic notice but failure to provide
such confirmation shall not effect the validity of such telephonic notice. All
prepayments of Revolving Loans made by the Borrower shall be in the amount of
(i) $1,000,000 or such greater amount which is an integral multiple of $250,000
for Eurodollar Loans, or (ii) $500,000 or such greater amount which is an
integral multiple of $100,000 for Base Rate Loans, or (iii) the amount equal to
all Revolving Credit Outstandings, or (iv) such other amount as necessary to
comply with Section 2.01(b). The principal amount of Eurodollar Rate Loans may
---------------
only be prepaid at the end of the applicable Interest Period, unless the
Borrower shall pay to the Agent for the account of the Lenders the amount, if
any, required under Section 4.05.
------------
2.04. Non-Conforming Payments. (a) Each payment of principal (including
-----------------------
any prepayment) and payment of interest and fees, and any other amount required
to be paid to the Lenders with respect to the Revolving Loans, shall be made to
the Agent at the Principal Office, for the account of each Lender, in Dollars
and in immediately available funds before 12:30 P.M. on the date such payment is
due. The Agent may, but shall not be obligated to, debit the amount of any such
payment which is not made by such time to any ordinary deposit account, if any,
of the Borrower with the Agent.
(b) The Agent shall deem any payment made by or on behalf of the
Borrower hereunder that is not made both in Dollars and in immediately available
funds and prior to 12:30 P.M. on the date such payment is due to be a non-
conforming payment. Any such payment shall not be deemed to be received by the
Agent until the first Business Day on which such funds were available prior to
12:30 P.M. Any non-conforming payment may constitute or become a Default or
Event of Default. Interest shall continue to accrue on any principal as to
which a non-
A-34
<PAGE>
conforming payment is made until the first Business Day on which such funds were
available prior to 12:30 P.M. at the Default Rate from the date such amount was
due and payable.
(c) In the event that any payment hereunder or under the Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next succeeding Business Day unless provided otherwise
under clause (ii) of the definition of "Interest Period"; provided that interest
--------
shall continue to accrue during the period of any such extension and provided
--------
further, that in no event shall any such due date be extended beyond the
- -------
Revolving Credit Termination Date.
2.05. Bank Account. The Borrower shall continuously maintain an account
------------
with the Agent for the purposes herein contemplated.
2.06. Notes.
-----
(a) Revolving Notes. Revolving Loans made by each Lender, shall be
---------------
evidenced by the Revolving Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Total Revolving
Credit Commitment, which Revolving Note shall be dated the Closing Date or such
later date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
(b) Swing Line Note. The Swing Line Outstandings shall be evidenced
---------------
by a separate Swing Line Note payable to the order of the Swing Line Lender in
the amount of the Swing Line, which Swing Line Note shall be dated the Closing
Date and shall be duly completed, executed and delivered by the Borrower.
2.07. Reductions. The Borrower shall, by notice from an Authorized
----------
Representative, have the right from time to time (but not more frequently than
once during each fiscal quarter), upon not less than two (2) Business Days'
written notice to the Agent to reduce the Total Revolving Credit Commitment.
Each such reduction shall be in the aggregate amount of $1,000,000 or such
greater amount which is in an integral multiple of $500,000, or the entire
remaining Total Revolving Credit Commitment. No such reduction shall result in
the payment of any Eurodollar Rate Loan other than on the last day of the
Interest Period of such Loan unless such prepayment is accompanied by amounts
due, if any, under Section 4.05. Each reduction of the Total Revolving Credit
------------
Commitment shall be accompanied by payment of the Loans to the extent that the
Revolving Credit Outstandings plus Swing Line Outstandings plus Letter of Credit
Outstandings exceed the Total Revolving Credit Commitment, after giving effect
to such reduction, together with accrued and unpaid interest on the amounts
prepaid.
2.08. Conversions and Elections of Subsequent Interest Periods. Subject
--------------------------------------------------------
to the limitations set forth below and in Article IV hereof, the Borrower may:
----------
A-35
<PAGE>
(a) upon delivery, effective upon receipt, of a properly completed
Interest Rate Selection Notice to the Agent on or before 10:30 A.M. on any
Business Day, Convert all or a part of Eurodollar Rate Loans to Base Rate Loans
on the last day of the Interest Period for such Eurodollar Rate Loans; and
(b) provided that no Default or Event of Default shall have occurred
and be continuing, upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before 10:30 A.M.
three (3) Business Days' prior to the date of such election or Conversion:
(i) elect to Continue any Eurodollar Rate Loan under the Revolving
Credit Facility by selecting a subsequent Interest Period for all or a
portion of such Eurodollar Rate Loan to begin on the last day of the then
current Interest Period for such Eurodollar Rate Loan; and
(ii) Convert Base Rate Loans to Eurodollar Rate Loans on any Business
Day.
Each election and Conversion pursuant to this Section 2.08 shall be subject
------------
to the limitations on Eurodollar Rate Loans set forth in the definition of
"Interest Period" herein and in Section 2.01 and Article IV. The Agent shall
------------ ----------
give written notice to each Lender of such notice of election or Conversion
prior to 2:00 P.M. on the day such notice of election or Conversion is received.
All such Continuations or Conversions of Loans shall be effected pro rata based
on the Applicable Commitment Percentages of the Lenders.
2.09. Pro Rata Payments. Except as otherwise provided herein, (a) each
-----------------
payment and prepayment on account of the principal of and interest on the
Revolving Loans and the fees described in Section 2.10 hereof shall be made to
------------
the Agent in the aggregate amount payable to the Lenders for the account of the
Lenders pro rata based on their Applicable Commitment Percentages, (b) all
payments to be made by the Borrower for the account of each of the Lenders on
account of principal, interest and fees, shall be made without set-off or
counterclaim, and (c) the Agent will distribute such payments when received to
the Lenders as provided for herein.
2.10. Commitment Fee. For the period beginning on the Closing Date and
--------------
ending on the Revolving Credit Termination Date (or such earlier date on which
the Revolving Credit Facility has terminated), the Borrower agrees to pay to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages a commitment fee equal to the Applicable Commitment Fee
multiplied by the average daily amount by which the Total Revolving Credit
Commitment exceeds the sum of (i) Revolving Credit Outstandings (without giving
effect to Swing Line Outstandings) plus (ii) Letter of Credit Outstandings.
Such payments of fees provided for in this Section shall be due in arrears on
the last Business Day of each March, June, September and December beginning June
30, 1999 to and on the Revolving Credit Termination Date. Such fee shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
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<PAGE>
2.11. Deficiency Advances. No Lender shall be responsible for any default
-------------------
of any other Lender in respect to such other Lender's obligation to make any
Loan hereunder nor shall the Revolving Credit Commitment of any Lender hereunder
be increased as a result of such default of any other Lender. Without limiting
the generality of the foregoing, in the event any Lender shall fail to advance
funds to the Borrower as herein provided, the Agent may in its discretion, but
shall not be obligated to, advance under the Revolving Note in its favor as a
Lender evidencing Revolving Loans all or any portion of such amount or amounts
(each, a "deficiency advance") and shall thereafter be entitled to payments of
principal of and interest on such deficiency advance in the same manner and at
the same interest rate or rates to which such other Lender would have been
entitled had it made such advance under its Revolving Note; provided that, upon
--------
payment to the Agent from such other Lender of the entire outstanding amount of
each such deficiency advance, together with accrued and unpaid interest thereon,
from the most recent date or dates interest was paid to the Agent by the
Borrower on each Loan comprising the deficiency advance at the interest rate per
annum for overnight borrowing by the Agent from the Federal Reserve Bank, then
such payment shall be credited against the Revolving Note of the Agent
evidencing Revolving Loans in full payment of such deficiency advance and the
Borrower shall be deemed to have borrowed the amount of such deficiency advance
from such other Lender as of the most recent date or dates, as the case may be,
upon which any payments of interest were made by the Borrower thereon.
2.12. Use of Proceeds. The proceeds of the Loans made hereunder shall be
---------------
used by the Borrower to (i) finance working capital, capital expenditures and
other lawful general corporate purposes and (ii) to finance Acquisitions
permitted herein.
2.13. Swing Line. (a) Notwithstanding any other provision of this
----------
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the Agent
and the Lenders, the Swing Line Lender shall make available Swing Line Loans to
the Borrower prior to the Revolving Credit Termination Date. The Swing Line
Lender shall not be obligated to make any Swing Line Loan pursuant hereto (i) if
to the actual knowledge of the Swing Line Lender the Borrower is not in
compliance with all the conditions to the making of Revolving Loans set forth in
this Agreement, (ii) if after giving effect to such Swing Line Loan, the Swing
Line Outstandings exceed $5,000,000, or (iii) if after giving effect to such
Swing Line Loan, the sum of the Swing Line Outstandings, Revolving Credit
Outstandings and Letter of Credit Outstandings exceeds the Total Revolving
Credit Commitment. Swing Line Loans shall bear interest at the Borrower's option
of the Base Rate and the Floating Eurodollar Rate; provided, however, that if
-------- -------
any amount shall not be paid when due (at maturity, by acceleration or
otherwise), or if any Event of Default shall have occurred and be continuing,
all amounts outstanding under the Swing Line shall bear interest thereafter at
the Default Rate from the date such amount was due and payable until the date
such amount is paid in full or until the Event of Default shall have been cured
or waived. The Borrower may borrow, repay and reborrow under this Section 2.13.
------------
Subject to Section 2.14 hereof, borrowings under the Swing Line shall be made,
------------
upon written request by telefacsimile transmission, effective upon receipt, by
an Authorized Representative of the Borrower made to the Swing Line Lender not
later than 2:00 P.M. on the Business Day of the requested borrowing. Each such
Borrowing Notice shall specify the amount of
A-37
<PAGE>
the borrowing and the date of borrowing, and shall be in the form of Exhibit D-2
-----------
hereto. The Borrower may prepay all or any part of the Swing Line Loan on giving
same-day notice to the Swing Line Lender. If the Borrower instructs the Swing
Line Lender to debit any demand deposit account of the Borrower in the amount of
any payment with respect to a Swing Line Loan, or the Swing Line Lender
otherwise receives repayment, after 2:00 P.M. on a Business Day, such payment
shall be deemed received on the next Business Day.
(b) The interest payable on Swing Line Loans is solely for the account
of the Swing Line Lender, and all accrued and unpaid interest on Swing Line
Loans shall be payable on the dates and in the manner provided in Sections
--------
2.02(b) and 2.04 with respect to interest on Base Rate Loans. The Swing Line
- ------- ----
Outstandings shall be evidenced by the Swing Line Note delivered to the Swing
Line Lender pursuant to Section 2.06(b).
---------------
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from the Swing Line Lender a Participation therein in an
amount equal to that Lender's Applicable Commitment Percentage of such Swing
Line Loan. Upon demand made by the Swing Line Lender, each Lender shall,
according to its Applicable Commitment Percentage of such Swing Line Loan,
promptly provide to the Swing Line Lender its purchase price therefor in an
amount equal to its Participation therein. Any such payment made by a Lender
pursuant to demand of the Swing Line Lender of the purchase price of its
Participation shall be deemed (i) provided that the conditions to making
Revolving Loans shall be satisfied, a Base Rate Refunding Loan under Section
-------
2.01 until the Borrower Converts such Base Rate Loan in accordance with the
- ----
terms of Section 2.08, and (ii) in all other cases, the funding by each Lender
------------
of the purchase price of its Participation in such Swing Line Loan. The
obligation of each Lender to so provide its purchase price to the Swing Line
Lender shall be absolute and unconditional and shall not be affected by the
occurrence of an Event of Default or any other occurrence or event.
(d) The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to Section 2.01 in an amount sufficient to repay
------------
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to the Swing Line Lender the amount necessary to repay
such Swing Line Outstandings (which the Swing Line Lender shall then apply to
such repayment) and credit any balance of the Advance in immediately available
funds in the manner directed by the Borrower pursuant to Section 2.01(c)(ii).
-------------------
(e) The Swing Line shall continue in effect until the Revolving Credit
Termination Date, at which time all Swing Line Outstandings and accrued interest
thereon shall be due and payable in full.
2.14. Autoborrow Service Agreement. The Borrower and NationsBank have
----------------------------
entered into an Autoborrow Service Agreement dated as of the Closing Date, a
copy of which is attached hereto as Schedule 2.14 (as amended or supplemented
-------------
from time to time, the "Autoborrow Agreement") pursuant to which NationsBank is
to make advances to the Borrower's deposit account on each Business Day to cover
various items processed in that account on such day. In order to give effect to
the Autoborrow Agreement, the parties hereto further agree as follows:
A-38
<PAGE>
(a) Notwithstanding the provisions of Section 2.13, the Borrower may
------------
on any Business Day borrow such amounts as set forth in the Autoborrow
Agreement. All such borrowings by the Borrower from NationsBank pursuant to the
terms of the Autoborrow Agreement shall be Swing Line Loans and shall constitute
Swing Line Outstandings under this Agreement and the Loan Documents and each
such borrowing shall be evidence of satisfaction of the conditions set forth in
Section 6.02 hereof and the Borrower shall not be required to furnish to the
- ------------
Agent any Borrowing Notice.
(b) Notwithstanding the provisions of Section 2.13, the Borrower may
------------
on any Business Day have credited to the repayment of Swing Line Loans made
pursuant to the Autoborrow Agreement on such date amounts credited on such day
to the Borrower's deposit account, to the extent and in the manner provided for
in the Autoborrow Agreement, without further action or notice.
ARTICLE III
Letters of Credit
-----------------
3.01. Letters of Credit. The Issuing Bank agrees, subject to the terms
-----------------
and conditions of this Agreement, upon request of the Borrower to issue Letters
of Credit from time to time for the account of the Borrower upon delivery to the
Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content reasonably acceptable to the Issuing Bank; provided,
--------
that (i) the Letter of Credit Outstandings shall not exceed the Total Letter of
Credit Commitment and (ii) no Letter of Credit shall be issued if, after giving
effect thereto, Letter of Credit Outstandings plus Revolving Credit Outstandings
plus Swing Line Outstandings shall exceed the Total Revolving Credit Commitment.
No Letter of Credit shall have an expiry date (including all rights of the
Borrower or any beneficiary named in such Letter of Credit to require renewal)
or payment date occurring later than the earlier to occur of one year after the
date of its issuance or the seventh Business Day prior to the Stated Termination
Date.
3.02. Reimbursement and Participations.
--------------------------------
(a) The Borrower hereby unconditionally agrees to pay to the Issuing
Bank immediately on demand at the Principal Office all amounts required to pay
all drafts drawn under the Letters of Credit and all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the Letters of Credit,
and in any event and without demand to place in possession of the Issuing Bank
(which shall include Advances under the Revolving Credit Facility if permitted
by Section 2.02 and Swing Line Loans if permitted by Section 2.13) sufficient
------------ ------------
funds to pay all debts and liabilities arising under any Letter of Credit. The
Issuing Bank agrees to give the Borrower prompt notice of any request for a draw
under a Letter of Credit. The Issuing Bank may charge any account the Borrower
may have with it for any and all amounts the Issuing Bank pays under a Letter of
Credit, plus charges and reasonable expenses as from time to time agreed
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<PAGE>
to by the Issuing Bank and the Borrower; provided that to the extent permitted
by Section 2.01(c)(iv) and Section 2.13, amounts shall be paid pursuant to
------------------- ------------
Advances under the Revolving Credit Facility or, if the Borrower shall elect, by
Swing Line Loans. The Borrower agrees to pay the Issuing Bank interest on any
Reimbursement Obligations not paid when due hereunder at the Default Rate.
(b) In accordance with the provisions of Section 2.01(c), the Issuing
---------------
Bank shall notify the Agent of any drawing under any Letter of Credit promptly
following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall automatically
acquire on the date of issuance thereof, a Participation in the liability of the
Issuing Bank in respect of each Letter of Credit in an amount equal to such
Lender's Applicable Commitment Percentage of such liability, and to the extent
that the Borrower is obligated to pay the Issuing Bank under Section 3.02(a),
---------------
each Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally obligated
to pay to the Issuing Bank, its Applicable Commitment Percentage of the
liability of the Issuing Bank under such Letter of Credit in the manner and with
the effect provided in Section 2.01(c)(iv).
-------------------
(d) Simultaneously with the making of each payment by a Lender to the
Issuing Bank pursuant to Section 2.01(c)(iv)(B), such Lender shall,
----------------------
automatically and without any further action on the part of the Issuing Bank or
such Lender, acquire a Participation in an amount equal to such payment
(excluding the portion thereof constituting interest accrued prior to the date
the Lender made its payment) in the related Reimbursement Obligation of the
Borrower. Each Lender's obligation to make payment to the Agent for the account
of the Issuing Bank pursuant to Section 2.01(c)(iv) and this Section 3.2(d), and
------------------- --------------
the right of the Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and shall be
made without any offset, abatement, withholding or reduction whatsoever. In the
event the Lenders have purchased Participations in any Reimbursement Obligation
as set forth above, then at any time payment (in fully collected, immediately
available funds) of such Reimbursement Obligation, in whole or in part, is
received by the Issuing Bank from the Borrower, the Issuing Bank shall promptly
pay to each Lender an amount equal to its Applicable Commitment Percentage of
such payment from the Borrower.
(e) Promptly following the end of each calendar quarter, the Issuing
Bank shall deliver to the Agent a notice describing the aggregate undrawn amount
of all Letters of Credit at the end of such quarter. Upon the request of any
Lender from time to time, the Issuing Bank shall deliver to the Agent, and the
Agent shall deliver to such Lender, any other information reasonably requested
by such Lender with respect to each Letter of Credit outstanding.
(f) The issuance by the Issuing Bank of each Letter of Credit shall,
in addition to the conditions precedent set forth in Article VI, be subject to
----------
the conditions that such Letter of Credit be in such form and contain such terms
as shall be reasonably satisfactory to the Issuing
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<PAGE>
Bank consistent with the then current practices and procedures of the Issuing
Bank with respect to similar letters of credit, and the Borrower shall have
executed and delivered such other instruments and agreements relating to such
Letters of Credit as the Issuing Bank shall have reasonably requested consistent
with such practices and procedures and shall not be in conflict with any of the
express terms herein contained. All Letters of Credit shall be issued pursuant
to and subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 or, if the
Issuing Bank shall elect by express reference in an affected Letter of Credit,
the International Chamber of Commerce International Standby Practices commonly
referred to as "ISP98", or any subsequent amendment or revision of either
thereof.
(g) The Borrower agrees that Issuing Bank may, in its sole discretion,
accept or pay, as complying with the terms of any Letter of Credit, any drafts
or other documents otherwise in order which may be signed or issued by an
administrator, executor, trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, liquidator, receiver, attorney in fact or other
legal representative of a party who is authorized under such Letter of Credit to
draw or issue any drafts or other documents.
(h) Without limiting the generality of the provisions of Section
-------
12.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing
- -----
Bank, each other Lender and the Agent from and against any and all claims and
damages, losses, liabilities, reasonable costs and expenses which the Issuing
Bank, such other Lender or the Agent may incur (or which may be claimed against
the Issuing Bank, such other Lender or the Agent) by any Person by reason of or
in connection with the issuance or transfer of or payment or failure to pay
under any Letter of Credit; provided that the Borrower shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, (i) caused by the willful misconduct or gross negligence of the party to
be indemnified or (ii) caused by the failure of the Issuing Bank to pay under
any Letter of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment is prohibited by any law, regulation, court order or decree.
The indemnification and hold harmless provisions of this Section 3.02(h) shall
---------------
survive repayment of the Obligations, occurrence of the Revolving Credit
Termination Date and expiration or termination of this Agreement.
(i) Without limiting Borrower's rights as set forth in Section
-------
3.02(h), the obligation of the Borrower to immediately reimburse the Issuing
- -------
Bank for drawings made under Letters of Credit and the Issuing Bank's right to
receive such payment shall be absolute, unconditional and irrevocable, and that
such obligations of the Borrower shall be performed strictly in accordance with
the terms of this Agreement and such Letters of Credit and the related
Applications and Agreement for any Letter of Credit, under all circumstances
whatsoever, including the following circumstances:
A-41
<PAGE>
(i) any lack of validity or enforceability of the Letter of Credit,
the obligation supported by the Letter of Credit or any other agreement or
instrument relating thereto (collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or departure from
all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense (other than the
defense of payment in accordance with the terms of this Agreement) or other
rights which the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any persons or entities for whom
any such beneficiary or any such transferee may be acting), the Agent, the
Lenders or any other Person, whether in connection with the Loan Documents,
the Related LC Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between the Borrower and
any beneficiary or any transferee of a Letter of Credit (or any persons or
entities for whom such beneficiary or any such transferee may be acting),
the Agent, the Lenders or any other Person;
(v) any draft, statement or any other document presented under the
Letter of Credit in accordance with the terms of such Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever;
(vi) any delay, extension of time, renewal, compromise or other
indulgence or modification granted or agreed to by the Agent, with or
without notice to or approval by the Borrower in respect of any of
Borrower's Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing provided the Issuing Bank shall not have
been grossly negligent in honoring any draft or statement in respect of
such Letter of Credit.
3.03. Letter of Credit Facility Fee. The Borrower shall pay to the Agent
-----------------------------
for the pro rata benefit of the Lenders based on their Applicable Commitment
Percentages a fee on the aggregate amount available to be drawn on each
outstanding Letter of Credit at a rate equal to the Applicable Margin for
Eurodollar Rate Loans. Such fee shall be due with respect to each Letter of
Credit quarterly in arrears on the last day of each March, June, September and
December, the first such payment to be made on the first such date occurring
after the date of issuance of a Letter of Credit. The fee described in this
Section 3.03 shall be calculated on the basis of a year of 360 days for the
- ------------
actual number of days elapsed.
3.04. Administrative Fees. The Borrower shall pay to the Issuing Bank on
-------------------
the date of issuance (i) a fronting fee of 0.125% per annum based on the face
amount available to be drawn
A-42
<PAGE>
under each Letter of Credit issued and (ii) such reasonable and customary
expenses and charges, if any, in connection with the Letters of Credit in such
amounts and at such times as the Issuing Bank and the Borrower shall agree from
time to time.
ARTICLE IV
Change in Circumstances
------------------------
4.01. Increased Cost and Reduced Return.
---------------------------------
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change in the interpretation or administration thereof by any
Governmental Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) or the Swing Line Lender with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office)
or the Swing Line Lender to any tax, duty, or other charge with respect to
any Eurodollar Rate Loans or Floating Eurodollar Rate Swing Line Loans, its
Note or the Swing Line Note, or its obligation to make Eurodollar Rate
Loans or Floating Eurodollar Rate Swing Line Loans, or change the basis of
taxation of any amounts payable to such Lender (or its Applicable Lending
Office) or the Swing Line Lender under this Agreement or its Note or Swing
Line Note in respect of any Eurodollar Rate Loans or Floating Eurodollar
Rate Swing Line Loans (other than taxes imposed on the overall net income
of such Lender or the Swing Line Lender by the jurisdiction in which such
Lender or the Swing Line Lender has its principal office or such Applicable
Lending Office or franchise taxes);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Eurodollar Reserve Requirement utilized in the determination of the
Eurodollar Rate and Floating Eurodollar Rate) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities or
commitments of, such Lender (or its Applicable Lending Office) or the Swing
Line Lender, including the Revolving Credit Commitment of such Lender
hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or the Swing Line Lender or on the London interbank market any
other condition affecting this Agreement or its Note or the Swing Line Note
or any of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) or the Swing Line Lender of making,
Converting into, Continuing, or
A-43
<PAGE>
maintaining any Eurodollar Rate Loans or any Floating Eurodollar Rate Swing Line
Loans or to reduce any sum received or receivable by such Lender (or its
Applicable Lending Office) or the Swing Line Lender under this Agreement or its
Note or the Swing Line Note with respect to any Eurodollar Rate Loans or
Floating Eurodollar Rate Swing Line Loans, then the Borrower shall pay to such
Lender or the Swing Line Lender on demand such amount or amounts as will
compensate such Lender or the Swing Line Lender for such increased cost or
reduction. If any Lender requests compensation by the Borrower under this
Section 4.01(a), the Borrower may, by notice to such Lender (with a copy to the
- ---------------
Agent), suspend the obligation of such Lender to make or Continue Loans of the
Type with respect to which such compensation is requested, or to Convert Loans
of any other Type into Loans of such Type, and by notice to the Swing Line
Lender, suspend the obligation of the Swing Line Lender to make or maintain
Floating Eurodollar Rate Swing Line Loans, until, in each such case, the event
or condition giving rise to such request ceases to be in effect (in which case
the provisions of Section 4.04 shall be applicable); provided that such
------------ --------
suspension shall not affect the right of such Lender to receive the compensation
so requested.
(b) If, after the date hereof, any Lender or the Swing Line Lender
shall have determined that the adoption of any applicable law, rule, or
regulation regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any Governmental Authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank, or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or the Swing Line Lender or any corporation
controlling such Lender or the Swing Line Lender as a consequence of such
Lender's or the Swing Line Lender's obligations hereunder to a level below that
which such Lender or the Swing Line Lender or such corporation could have
achieved but for such adoption, change, request, or directive (taking into
consideration its policies with respect to capital adequacy), then from time to
time upon demand the Borrower shall pay to such Lender or the Swing Line Lender
such additional amount or amounts as will compensate such Lender or the Swing
Line Lender for such reduction.
(c) Each Lender and the Swing Line Lender shall promptly notify the
Borrower and the Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Lender or the Swing Line Lender to
compensation pursuant to this Section 4.01 and will designate a different
------------
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable judgment of
such Lender or the Swing Line Lender, be otherwise disadvantageous to it. Any
Lender or the Swing Line Lender claiming compensation under this Section 4.01
------------
shall prior to such collection furnish to the Borrower and the Agent a statement
setting forth the additional amount or amounts to be paid to it hereunder which
shall be conclusive in the absence of manifest error. In determining such
amount, such Lender or the Swing Line Lender may use any reasonable averaging
and attribution methods.
A-44
<PAGE>
4.02. Limitation on Types of Loans. If on or prior to the first day of
----------------------------
any Interest Period for any Eurodollar Rate Loan and on any Business Day with
respect to a Floating Eurodollar Rate Swing Line Loan;
(a) the Agent determines (which determination shall be conclusive
absent manifest error) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period or for such Business Day and the
foreseeable future thereafter; or
(b) (i) with respect to Eurodollar Rate Loans, the Required Lenders
determine (which determination shall be conclusive) and notify the Agent that
the Eurodollar Rate will not adequately and fairly reflect the cost to the
Lenders of funding Eurodollar Rate Loans for such Interest Period; or
(ii) with respect to Floating Eurodollar Rate Swing Line Loans, the
Swing Line Lender determines (which determination shall be conclusive) and
notifies the Agent that the Floating Eurodollar Rate will not adequately and
fairly reflect the cost to the Swing Line Lender of funding or maintaining
Floating Eurodollar Rate Swing Line Loans;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, none of the Lenders shall be under any obligation
to make additional Loans of such Type, Continue Loans of such Type, or to
Convert Loans of any other Type into Loans of such Type, and the Swing Line
Lender shall not have any obligation to make or maintain any Floating Eurodollar
Rate Swing Line Loans, and the Borrower shall, on the last day(s) of the then
current Interest Period(s) for the outstanding Loans of the affected Type,
either prepay such Loans or Convert such Loans into another Type of Loan in
accordance with the terms of this Agreement and shall immediately prepay such
Floating Eurodollar Rate Swing Line Loans.
4.03. Illegality. Notwithstanding any other provision of this Agreement,
----------
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, or it becomes
unlawful for the Swing Line Lender to make, maintain or fund Floating Eurodollar
Rate Swing Line Loans hereunder, then such Lender or the Swing Line Lender shall
promptly notify the Borrower thereof and such Lender's obligation to make or
Continue Eurodollar Rate Loans and to Convert other Types of Loans into
Eurodollar Rate Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Rate Loans (in which case the
provisions of Section 4.04(a) shall be applicable) and the Swing Line Lender's
---------------
obligation to make or maintain or fund Floating Eurodollar Rate Swing Line Loans
shall be suspended until such time as the Swing Line Lender may again make,
maintain and fund Floating Eurodollar Rate Swing Line Loans (in which case the
provisions of Section 4.04(b) shall be applicable).
---------------
A-45
<PAGE>
4.04. Treatment of Affected Loans. (a) If the obligation of any Lender to
---------------------------
make a particular Eurodollar Rate Loan or to Continue, or to Convert Loans of
any other Type into, Loans of a particular Type shall be suspended pursuant to
Section 4.01 or 4.03 hereof (Loans of such Type being herein called "Affected
- ------------ ----
Loans" and such Type being herein called the "Affected Type"), such Lender's
Affected Loans shall be automatically Converted into Base Rate Loans on the last
day(s) of the then current Interest Period(s) for Affected Loans (or, in the
case of a Conversion required by Section 4.03 hereof, on such earlier date as
------------
such Lender may specify to the Borrower with a copy to the Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 4.01 or 4.03 hereof that gave rise to such suspension no
------------ ----
longer exist:
(i) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Affected Loans shall be applied instead to its
Base Rate Loans; and
(ii) all Loans that would otherwise be made or Continued by such
Lender as Loans of the Affected Type shall be made or Continued instead as
Base Rate Loans, and all Loans of such Lender that would otherwise be
Converted into Loans of the Affected Type shall be Converted instead into
(or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.01 or 4.03 hereof that gave rise to the
------------ ----
suspension of such Lender's Affected Loans pursuant to this Section 4.04 no
------------
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Commitments.
(b) If the obligation of the Swing Line Lender to make Floating
Eurodollar Rate Swing Line Loans shall be suspended pursuant to Section 4.01 or
------------
4.03 hereof, the Floating Eurodollar Rate Swing Line Loans shall be
- ----
automatically on the same Business Day become Swing Line Loans that bear
interest at the Base Rate and, unless and until the Swing Line Lender gives
notice as provided below that the circumstances specified in Section 4.01 or
------------
4.03 hereof that gave rise to such suspension no longer exist:
- ----
(i) all payments and prepayments of principal that would otherwise be
applied to such Floating Eurodollar Rate Swing Line Loans shall be applied
instead to Swing Line Loans that bear interest at the Base Rate; and
A-46
<PAGE>
(ii) all Swing Line Loans that would otherwise be made by the Swing
Line Lender as Floating Eurodollar Rate Swing Line Loans shall be made
instead as Swing Line Loans that bear interest at the Base Rate.
If the Swing Line Lender gives notice to the Borrower (with a copy to the Agent)
that the circumstances specified in Section 4.01 or 4.03 hereof that gave rise
------------ ----
to the suspension of Floating Eurodollar Rate Swing Line Loans pursuant to this
Section 4.04 no longer exist (which the Swing Line Lender agrees to do promptly
- ------------
upon such circumstances ceasing to exist), the Borrower may again request, and
the Swing Line Lender shall make, Floating Eurodollar Rate Swing Line Loans.
4.05. Compensation. Upon the request of any Lender, the Borrower shall
------------
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Rate Loan
for any reason (including, without limitation, the acceleration of the Loans
pursuant to Section 10.01) on a date other than the last day of the Interest
-------------
Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Article VI to be
----------
satisfied) to borrow, Convert, Continue, or prepay a Eurodollar Rate Loan on the
date for such borrowing, Conversion, Continuation, or prepayment specified in
the relevant notice of borrowing, prepayment, Continuation, or Conversion under
this Agreement.
4.06. Taxes.
-----
(a) Any and all payments by the Borrower to or for the account of any
Lender or the Agent hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
---------
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any other Loan Document
to any Lender or the Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.06) such Lender or the Agent
------------
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with
A-47
<PAGE>
applicable law, and (iv) the Borrower shall furnish to the Agent, at its address
referred to in Section 12.02, the original or a certified copy of a receipt
-------------
evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for
the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 4.06) paid by such Lender or the Agent (as the case may be)
------------
and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which provides for an
absolute exemption from withholding tax on payments of interest or certifying
that the income receivable pursuant to this Agreement is effectively connected
with the conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and (iii) any other form or
certificate required by any taxing authority (including any certificate required
by Sections 871(h) and 881(c) of the Internal Revenue Code), certifying that
such Lender is entitled to an absolute exemption from tax on payments pursuant
to this Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to
provide the Borrower and the Agent with the appropriate form pursuant to Section
-------
4.06(d) (unless such failure is due to a change in treaty, law, or regulation
- -------
occurring subsequent to the date on which a form originally was required to be
provided), such Lender shall not be entitled to indemnification under Section
-------
4.06(a) or 4.06(b) with respect to Taxes imposed by the United States; provided,
- ------- ------- --------
however, that should a Lender, which is otherwise exempt from or subject to a
- -------
reduced rate of withholding tax, become subject to Taxes because of its failure
to deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
A-48
<PAGE>
(f) If the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 4.06, then such Lender will
------------
agree to use reasonable efforts to change the jurisdiction of its Applicable
Lending Office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes,
the Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 4.06 shall survive the termination of the Commitments and the
------------
payment in full of the Notes.
(i) To the extent that the payment of any Lender's Taxes by the
Borrower in accordance with this Section 4.06 gives rise from time to time a Tax
------------
Benefit (as hereinafter defined) to such Lender in any jurisdiction other than
the jurisdiction which imposed such Taxes, such Lender shall pay to the Borrower
the amount of each such Tax Benefit so recognized or received. The amount of
each Tax Benefit and, therefore, payment to the Borrower will be determined from
time to time by the relevant Lender in its sole discretion, which determination
shall be binding and conclusive on all parties hereto. Each such payment will
be due and payable by such Lender to the Borrower within a reasonable time after
the filing of the income tax return in which such Tax Benefit is recognized or,
in the case of any tax refund, after the refund is received; provided, however,
-------- -------
if at any time thereafter such Lender is required to rescind such Tax Benefit or
such Tax Benefit is otherwise disallowed or nullified, the Borrower shall
promptly, after notice thereof from such Lender, repay to such Lender the amount
of such Tax Benefit previously paid to the Borrower and rescinded, disallowed or
nullified. For purposes of this Section 4.06(i), "Tax Benefit" shall mean the
---------------
amount by which any Lender's income tax liability for the taxable period in
question is reduced below what would have been payable had the Borrower not been
required to pay the Lender's Taxes. In the case of any dispute with respect to
the amount of any payment, the Borrower shall have no right to any offset or
withholding of payments with respect to future payments due to any Lender under
this Agreement or the Notes.
4.07. Replacement Banks. If (a) a Lender requests compensation from the
-----------------
Borrower pursuant to Section 4.01, (b) it becomes unlawful for a Lender to make
-------------
Eurodollar Rate Loans as set forth in Section 4.03 or (c) a Lender refuses or
------------
otherwise fails to consent to any waiver, amendment or other modification of any
Loan Document which (i) requires the written consent of more than the Required
Lenders under Section 12.06 and (ii) has been approved in writing by the
-------------
Required Lenders, then so long as there does not then exist any Default or Event
of Default, the Borrower may, in its sole discretion, on ten (10) Business
Days' prior written notice to the Agent and any such Lender described in clauses
(a), (b) or (c) above, cause such Lender to (and such Lender shall) assign,
pursuant to Section 12.01, all of its rights and obligations under this
-------------
Agreement to an Eligible Assignee designated by the Borrower which is willing to
become a
A-49
<PAGE>
Lender for a purchase price equal to the outstanding principal amount of the
Loans and Reimbursement Obligations payable to such Lender plus any accrued but
unpaid interest on such Loans and Reimbursement Obligations, any accrued but
unpaid fees payable hereunder to such Lender and any other amount payable to
such Lender under this Agreement; provided, however, that any expenses or other
-------- -------
amounts which would be owing to such Lender pursuant to any indemnification
provision hereof (including, if applicable, Section 4.05) shall be payable by
------------
the Borrower as if the Borrower had prepaid the Loans of such Lender rather than
such Lender having assigned its interest hereunder. The Borrower or the assignee
shall pay the applicable processing fee under Section 12.01. This Section 4.07
-------------
shall not be applicable to the Swing Line Lender and Floating Eurodollar Rate
Swing Line Loans.
A-50
<PAGE>
ARTICLE V
Security
--------
5.01. Guaranty. To guarantee the full and timely payment and performance
--------
of all Obligations now existing or hereafter arising, the Borrower shall cause
the Guaranty Agreement, in form and substance reasonably acceptable to the
Agent, to be delivered by each Domestic Subsidiary, on the Closing Date. The
Borrower hereby agrees to cause a Guaranty Agreement to be delivered by any
hereafter acquired or created Domestic Subsidiary pursuant to the terms of
Section 8.19.
- ------------
5.02. Subsidiary Securities Pledge. (a) As security for the full and
----------------------------
timely payment and performance of (i) all Obligations now existing or hereafter
arising and (ii) if applicable, the Guarantors' Obligations under the Guaranty
Agreement, the Borrower and each Guarantor owning any Subsidiary Securities
shall on the Closing Date deliver to the Agent, in form and substance reasonably
acceptable to the Agent, (A) a Pledge Agreement which shall pledge to the Agent
for the benefit of the Lenders all of the Subsidiary Securities of any Domestic
Subsidiary and not less than 65% of the Voting Securities and 100% of the other
Subsidiary Securities of any Direct Foreign Subsidiary in accordance with the
terms hereof and thereof, (B) if such Subsidiary Securities are in the form of
certificated securities, such certificated securities, together with undated
stock powers or other appropriate transfer documents endorsed in blank
pertaining thereto, (C) if such Subsidiary Securities do not constitute
securities and the Subsidiary has not elected to have such interests treated as
securities under Article 8 of the Uniform Commercial Code, Uniform Commercial
Code financing statements and a control agreement from the Registrar of such
Subsidiary, in each instance in form and substance acceptable to the Agent, and
(D) take such further action and deliver or cause to be delivered such further
documents as the Agent may request, including, with respect to Direct Foreign
Subsidiaries, foreign collateral documents and foreign counsel opinions.
(b) The Borrower and each Subsidiary hereby agree to pledge to the
Agent for the benefit of the Lenders all of the Subsidiary Securities of any
Domestic Subsidiary and not less than 65% of the Voting Securities and 100% of
the other Subsidiary Securities of any Direct Foreign Subsidiary acquired or
created after the Closing Date and to deliver to the Agent all of the Loan
Documents required pursuant to the terms of Section 8.19.
------------
5.03. Security Interests. As security for the full and timely payment and
------------------
performance of (i) all Obligations now existing or hereafter arising and (ii)
if applicable, the Guarantors' Obligations under the Guaranty Agreement, the
Borrower shall, and shall cause each Guarantor to, on the Closing Date deliver
to the Agent, in form and substance reasonably acceptable to the Agent, the
Security Agreement, the Uniform Commercial Code financing statements, and each
other Security Instrument sufficient to grant to the Agent a valid, duly
perfected security interest in the Collateral described therein, subject to no
prior Liens other than Permitted Liens, and do all things necessary in the
reasonable opinion of the Agent and its counsel to grant to the Agent for the
benefit of the Lenders a security interest, duly perfected with respect to
Collateral governed by the UCC, in all Collateral subject to no Lien other than
Permitted Liens. The Borrower hereby agrees to cause the Security
A-51
<PAGE>
Instruments to be delivered by any hereafter acquired or created Domestic
Subsidiary or Direct Foreign Subsidiary pursuant to the terms of Section 8.19.
------------
5.04. Further Assurances. At the request of the Agent, the Borrower will
------------------
or will cause its Subsidiaries, as the case may be, to execute, by its duly
authorized officers, alone or with the Agent, any certificate, instrument,
statement or document, or to procure any such certificate, instrument, statement
or document, or to take such other action (and pay all connected costs) which
the Agent reasonably deems necessary from time to time to create, continue or
preserve the liens and security interests in Collateral (and the perfection and
priority thereof) of the Agent contemplated hereby and by the other Loan
Documents.
ARTICLE VI
Conditions to Making Loans
--------------------------
6.01. Conditions of Initial Advance, Swing Line Loan and Letter of Credit.
-------------------------------------------------------------------
The obligation of the Lenders to make the initial Advance, and of the Swing Line
Lender to make any Swing Line Loan, and of the Issuing Bank to issue any Letter
of Credit pursuant to this Agreement is subject to the conditions precedent that
(a) the Agent shall have received on the Closing Date, in form and
substance satisfactory to the Agent and the Lenders, the following:
(i) the Existing Notes to be marked "Substituted" in exchange for the
Notes;
(ii) executed originals of each of this Agreement, the Notes, the
Guaranty Agreement, the Security Instruments and the other Loan Documents,
together with all schedules and exhibits thereto;
(iii) favorable written opinions of special counsel (and, where
necessary, local counsel) to the Loan Parties dated the Closing Date,
addressed to the Agent substantially in the form of Exhibit I attached
---------
hereto;
(iv) resolutions of the boards of directors or other appropriate
governing body (or of the appropriate committee thereof) of the Loan
Parties certified by its secretary or assistant secretary as of the Closing
Date, appointing (in the case of the Borrower) the initial Authorized
Representative and approving and adopting the Loan Documents to be executed
by such Person, and authorizing the execution and delivery thereof;
(v) specimen signatures of officers of each of the Loan Parties
executing the Loan Documents on behalf of such Person, certified by the
secretary or assistant secretary of the Borrower or Guarantor, as
applicable;
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<PAGE>
(vi) the charter documents of each of the Loan Parties certified as of
a recent date by the Secretary of State of its state of organization and
the bylaws of each of the Loan Parties certified by the secretary or
assistant secretary of such Loan Party;
(vii) certificates issued as of a recent date by the Secretaries of
State of the jurisdiction of incorporation of each of the Loan Parties as
to the due existence and good standing of the Borrower and each Guarantor
therein;
(viii) appropriate certificates of qualification to do business, good
standing and, where appropriate, authority to conduct business under
assumed name, issued in respect of each of the Loan Parties as of a recent
date by the Secretary of State or comparable official of each jurisdiction
in which the failure to be qualified to do business or authorized so to
conduct business could materially adversely affect the business, operations
or conditions, financial or otherwise, of the Borrower or any Guarantor;
(ix) receipt by the Agent and the Lenders of such fees and other
consideration as may be required by the terms of the commitment to lend;
(x) notice of appointment of the initial Authorized Representative;
(xi) evidence of insurance required by the Loan Documents;
(xii) receipt and satisfactory review of the financial statements of
the Borrower and its Subsidiaries required to be furnished pursuant to
Section 7.01(f);
---------------
(xiii) receipt and satisfactory review of projected financial
statements for the Borrower and its Subsidiaries for Fiscal Year 1999 and a
pro forma consolidated balance sheet and consolidated income statement of
the Borrower and its Subsidiaries as at the Closing Date giving effect to
the transactions contemplated by this Agreement and the other Loan
Documents;
(xiv) a certificate of an Authorized Representative as to the
occurrence or truthfulness, as applicable, of the matters set forth in
Section 6.01(b) as of the Closing Date; and
---------------
(xv) such other information, documents, instruments, certificates and
opinions as the Agent may reasonably request on or prior to the Closing
Date in connection with the consummation of the transactions contemplated
hereby;
(b) Each of the following shall have occurred or be true:
(i) there shall not be any action, suit, investigation or proceeding
pending or threatened by, before or otherwise involving any Governmental
Authority or other Person
A-53
<PAGE>
that could reasonably be expected to have a material adverse effect on (A)
the business, business prospects, results of operations or condition
(financial or otherwise) of the Borrower and its Subsidiaries, taken as a
whole, or (B) the ability of the Borrower and its Subsidiaries taken as a
whole to observe and perform the covenants and agreements contained herein
or in any other Loan Document or the ability of any Lender to receive the
benefit of any remedy provided thereto under any Loan Document;
(ii) the Borrower's and its Subsidiaries' material computer
applications will to a reasonable extent, on a timely basis, adequately
address the Year 2000 Problem in all material respects and the Borrower and
its Subsidiaries are taking all necessary and appropriate steps to
ascertain the extent of, and to quantify and successfully address, business
and financial risks facing the Borrower and its Subsidiaries as a result of
the Year 2000 Problem, including reasonable steps to ascertain risks
resulting from the failure of key vendors and customers of the Borrower and
its Subsidiaries to successfully address the Year 2000 Problem;
(c) In the good faith judgment of the Agent:
(i) there shall not have occurred a material adverse change since
September 30, 1998 in the business, assets, liabilities (actual or
contingent) operations, condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries taken as whole, or in the facts and
information regarding such entities as represented to date;
(ii) the corporate capital and ownership structure (including articles
of incorporation and bylaws), shareholders agreements and management of the
Borrower and its Subsidiaries shall be satisfactory to the Agent;
(iii) the Agent shall have completed a review, with results
satisfactory to the Agent in its sole discretion, of information regarding
litigation, tax, accounting, labor, insurance, pension liabilities (actual
or contingent), real estate leases, environmental matters, material
contracts, debt agreements, property ownership, contingent liabilities and
management of the Borrower and its Subsidiaries;
(iv) there shall not have occurred and be continuing since January 1,
1999 a material disruption of, or a material adverse change in, financial,
banking or capital market conditions.
6.02. Conditions of Loans and Letters of Credit. The obligations of the
-----------------------------------------
Lenders to make any Revolving Loans, and of the Swing Line Lender to make any
Swing Line Loan, and of the Issuing Bank to issue Letters of Credit, hereunder
on or subsequent to the Closing Date are subject to the satisfaction of the
following conditions:
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<PAGE>
(a) the Agent or, in the case of Swing Line Loans, the Swing Line
Lender shall have received a Borrowing Notice if required by Article II hereof;
----------
(b) the representations and warranties of the Borrower set forth in
Article VII hereof and in each of the other Loan Documents shall be true and
- -----------
correct in all material respects on and as of the date of such Advance, Swing
Line Loan or Letter of Credit issuance or renewal with the same effect as though
such representations and warranties had been made on and as of such date, except
to the extent that such representations and warranties expressly relate to an
earlier date and except that the financial statements referred to in Section
-------
7.01(f)(i) shall be deemed to be those financial statements most recently
- ----------
delivered to the Agent and the Lenders pursuant to Section 8.01 hereof;
------------
(c) in the case of the issuance of a Letter of Credit, the Borrower
shall have executed and delivered to the Issuing Bank an Application and
Agreement for Letter of Credit in form and content acceptable to the Issuing
Bank together with such other instruments and documents as it shall request;
(d) at the time of, and after giving effect to, each such Advance,
Swing Line Loan or the issuance or renewal of a Letter of Credit, no Default or
Event of Default specified in Article X hereof, shall have occurred and be
---------
continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, Swing Line Loan or a Letter of Credit or
renewal thereof, the aggregate principal balance of all outstanding
Revolving Loans advanced by each Lender and all outstanding
Participations in Letters of Credit and Reimbursement Obligations and
Swing Line Loans for such Lender shall not exceed such Lender's
Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the aggregate
principal balance of all outstanding Participations in Letters of
Credit and Reimbursement Obligations (or in the case of the Issuing
Bank, its remaining interest after deduction of all Participations in
Letters of Credit and Reimbursement Obligations of other Lenders) for
each Lender shall not exceed such Lender's Letter of Credit Commitment
and the sum of all Letter of Credit Outstandings shall not exceed the
Total Letter of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings shall not
exceed $5,000,000; and
(iv) a Revolving Loan, Swing Line Loan or a Letter of Credit or
renewal thereof, the sum of Letter of Credit Outstandings plus
Revolving Credit
A-55
<PAGE>
Outstandings plus Swing Line Outstandings shall not exceed the Total
Revolving Credit Commitment.
(f) in the good faith judgment of the Agent and the Lenders, there
shall not have occurred or become known to the Agent or the Lenders any event,
condition, situation or status that has had or could reasonably be expected to
result in a Material Adverse Effect.
6.03. Conditions Subsequent of Loans and Letters of Credit. The
----------------------------------------------------
obligations of the Lenders to make any Revolving Loans, and of the Swing Line
Lender to make any Swing Line Loan, and of the Issuing Bank to issue Letters of
Credit, hereunder on or subsequent to the Closing Date are subject to the
satisfaction of the following condition subsequent:
(a) within 90 days from the Closing Date, the Agent shall have
completed a review, with results satisfactory to the Agent in its reasonable
discretion, a field examination of the accounts receivable, inventory, accounts
payable, controls and systems of the Borrower and its Subsidiaries; provided,
--------
however, in the event the Agent, in the exercise of its reasonable discretion,
- -------
is not satisfied with the results of such field examination, then the Borrower
shall have ninety (90) days within which to implement (i) changes in its
operations as deemed reasonably necessary by the Agent and (ii) revisions to the
Loan Documents as deemed reasonably necessary by the Required Lenders in order
to address any problems revealed by the field examination.
ARTICLE VII
Representations and Warranties
------------------------------
7.01. Representations and Warranties. The Borrower represents and
------------------------------
warrants with respect to itself and each Subsidiary (which representations and
warranties shall survive the delivery of the documents mentioned herein and the
making of Loans), that:
(a) Organization and Authority.
--------------------------
(i) each Loan Party is a corporation duly organized and validly
existing under the laws of the jurisdiction of its incorporation;
(ii) each Loan Party (x) has the requisite power and authority to own
its properties and assets and to carry on its business as now being
conducted and as contemplated in the Loan Documents, and (y) is qualified
to do business in every jurisdiction in which failure so to qualify would
have a Material Adverse Effect;
(iii) the Borrower has the power and authority to execute, deliver
and perform this Agreement and the Notes, and to borrow hereunder, and to
execute, deliver and perform each of the other Loan Documents to which it
is a party; and
A-56
<PAGE>
(iv) each Guarantor has the power and authority to execute, deliver
and perform the Guaranty Agreement and each of the other Loan Documents to
which it is a party;
(v) when executed and delivered, each of the Loan Documents to which
any Loan Party is a party will be the legal, valid and binding obligation
or agreement of such Loan Party, enforceable against such Loan Party in
accordance with its terms, subject to the effect of any applicable
bankruptcy, moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally, to the effect
of general principles of equity which may limit the availability of
equitable remedies (whether in a proceeding at law or in equity).
(b) Loan Documents. The execution, delivery and performance by the
--------------
Loan Parties of each of the Loan Documents to which it is a party:
(i) have been duly authorized by all requisite corporate action
(including any required shareholder approval) of each of the Loan Parties
required for the lawful execution, delivery and performance thereof;
(ii) do not violate any provisions of (1) applicable law, rule or
regulation, (2) any order of any court or other agency of government
binding on the Loan Parties or their respective properties, or (3) the
charter documents or by-laws of the Loan Parties;
(iii) does not and will not be in conflict with, result in a breach
of or constitute an event of default, or an event which, with notice or
lapse of time, or both, would constitute an event of default, under any
indenture, agreement or other instrument to which any of the Loan Parties
are a party, or by which the properties or assets of any of the Loan
Parties are bound;
(iv) does not and will not result in the creation or imposition of any
Lien of any nature whatsoever upon any of the properties or assets of any
of the Loan Parties except any Liens in favor of the Agent for the benefit
of the Lenders created by the Loan Documents.
(c) Solvency. Each Loan Party is Solvent after giving effect to the
--------
transactions contemplated by this Agreement and the other Loan Documents.
(d) Subsidiaries. The Borrower has no Subsidiaries other than those
------------
Persons listed as Subsidiaries in Schedule 7.01(d) hereto; Schedule 7.01(d) to
---------------- ----------------
this Agreement states as of the date hereof the principal place of business of
the Borrower and each Subsidiary, the authorized and issued capitalization of
each Subsidiary listed thereon, the number of shares or other equity interests
of each class of capital stock or interest issued and outstanding of each such
Subsidiary and the number and/or percentage of outstanding shares or other
equity interest (including options, warrants and other rights to acquire any
interest) of each such class of capital stock or equity
A-57
<PAGE>
interest owned by the Borrower or by any such Subsidiary; the outstanding shares
or other equity interests of each such Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable; and Borrower and each such
Subsidiary owns beneficially and of record all the shares and other interests it
is listed as owning in Schedule 7.01(d), free and clear of any Lien other than
----------------
Liens created hereby.
(e) Ownership Interests. Borrower owns no interest in any Person
-------------------
other than the Persons listed in Schedule 7.01(d) hereto and Eligible
----------------
Securities;
(f) Financial Condition. (i) The Borrower has heretofore furnished to
-------------------
the Agent for the benefit of the Lenders the audited consolidated balance
sheet of the Borrower and its Subsidiaries as at December 31, 1998 and
December 31, 1997, and the notes thereto and the related statements of
income, stockholders' equity and cash flows for the Fiscal Years then
ended. Except as set forth therein, such financial statements (including
the notes thereto) present fairly the financial condition of the Borrower
and its Subsidiaries as of the end of such Fiscal Years and results of
their operations and the changes in their stockholders' equity for the
Fiscal Years then ended, all in conformity with Generally Accepted
Accounting Principles applied on a Consistent Basis; and
(ii) except as set forth on Schedule 7.01(f), since December 31,
-----------------
1998, there has been no material adverse change in the condition, financial
or otherwise, of the Borrower and its Subsidiaries considered as a whole or
in the businesses, properties and operations of the Borrower and its
Subsidiaries, considered as a whole, nor have such businesses or
properties, considered as a whole, been materially adversely affected as a
result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God;
(g) Title to Properties. The Borrower and each Subsidiary have good
-------------------
title to all real properties owned by them and good title to all personal
property owned by them, subject to no transfer restrictions or Liens of any
kind, except for Permitted Liens;
(h) Taxes. The Borrower and each Subsidiary have filed or caused to
-----
be filed all federal, state and local tax returns which are required to be filed
by them and except for taxes and assessments being contested in good faith and
against which reserves satisfactory to the Borrower's independent certified
public accountants have been established, have paid or caused to be paid all
taxes as shown on said returns or on any assessment received by them, to the
extent that such taxes have become due;
(i) Other Agreements. Except as set forth on Schedule 7.01(i),
---------------- ----------------
neither the Borrower nor any Subsidiary is
(i) a party to any judgment, order, decree or any agreement or
instrument or subject to restrictions materially adversely affecting the
business, properties or assets,
A-58
<PAGE>
operation or condition (financial or otherwise) of the Borrower or any
Subsidiary considered as a whole; or
(ii) in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement or
instrument to which the Borrower or any Subsidiary is a party, which
default has, or if not remedied within any applicable grace period could
have, a material adverse effect on the business, operations or condition,
financial or otherwise, of the Borrower or any Subsidiary considered as a
whole;
(j) Litigation. Except as set forth in Schedule 7.01(j) hereto, there
---------- ----------------
is no action, suit or proceeding at law or in equity or by or before any
governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or affecting the Borrower or any Subsidiary or any properties or
rights of the Borrower or any Subsidiary, which could reasonably be expected to
have a Material Adverse Effect;
(k) Margin Stock. The proceeds of the borrowings made pursuant to
------------
Article II hereof will be used by the Borrower only for the purposes set forth
- ----------
in Section 2.12 hereof. None of such proceeds will be used, directly or
------------
indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute any of the Loans under this Agreement a "purpose credit" within the
meaning of said Regulation U or Regulation X (12 C.F.R. Part 221) of the Board.
Neither the Borrower nor any agent acting in its behalf has taken or will take
any action which might cause this Agreement or any of the documents or
instruments delivered pursuant hereto to violate any regulation of the Board or
to violate the Securities Exchange Act of 1934, as amended, or the Securities
Act of 1933, as amended, or any state securities laws, in each case as in effect
on the date hereof;
(l) Investment Company. Neither the Borrower nor any Subsidiary is an
------------------
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (15 U.S.C. (S) 80a-1, et seq.). The
application of the proceeds of the Loans and repayment thereof by the Borrower
and the performance by the Borrower of the transactions contemplated by this
Agreement will not violate any provision of said Act, or any rule, regulation or
order issued by the Securities and Exchange Commission thereunder, in each case
as in effect on the date hereof;
(m) Patents, Etc. The Borrower and each Subsidiary owns or has the
------------
right to use, under valid license agreements or otherwise, all material patents,
licenses, franchises, trademarks, trademark rights, trade names, trade name
rights, trade secrets and copyrights necessary to the conduct of each of their
businesses as now conducted, without known conflict with any patent, license,
franchise, trademark, trade secrets and confidential commercial or
A-59
<PAGE>
proprietary information, trade name, copyright, rights to trade secrets or other
proprietary rights of any other Person which could reasonably be expected to
result in a Material Adverse Effect;
(n) No Untrue Statement. Neither this Agreement nor any other Loan
-------------------
Document or certificate or document executed and delivered by or on behalf of
the Borrower or any Loan Party in accordance with or pursuant to any Loan
Document contains any misrepresentation or untrue statement of material fact or
omits to state a material fact necessary, in light of the circumstance under
which it was made, in order to make any such representation or statement
contained therein not misleading in any material respect;
(o) No Consents, Etc. Neither the respective businesses or properties
----------------
of the Borrower or any Subsidiary, nor any relationship between the Borrower or
any Subsidiary and any other Person, nor any circumstance in connection with the
execution, delivery and performance of the Loan Documents and the transactions
contemplated hereby is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any governmental or other
authority or any other Person on the part of the Borrower or any Subsidiary as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by, this Agreement or the other Loan Documents or if
so, such consent, approval, authorization, filing, registration or qualification
has been obtained or effected, as the case may be;
(p) ERISA.
-----
(i) The Borrower and each ERISA Affiliate is in compliance with all
applicable provisions of ERISA and the regulations and published
interpretations thereunder and in compliance with all Foreign Benefit Laws
with respect to all Employee Benefit Plans except for any required
amendments for which the remedial amendment period as defined in Section
401(b) of the Code has not yet expired and except where the failure to be
in compliance is not reasonably likely to result in a Material Adverse
Effect. Each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined or the Borrower or its
Subsidiaries is in the process of obtaining a determination by the Internal
Revenue Service to be so qualified, each trust related to such plan has
been determined to be exempt under Section 501(a) of the Code or is
awaiting confirmation from the Internal Revenue Service of such exemption,
and each Employee Benefit Plan subject to any Foreign Benefit Law has
received the required approvals by any Governmental Authority regulating
such Employee Benefit Plan except where the failure to obtain such
approvals is not reasonably likely to result in a Material Adverse Effect.
(ii) Neither the Borrower, any ERISA Affiliate, or any Subsidiary or
the trusts created thereunder has (A) engaged in a prohibited transaction
which could subject any such Employee Benefit Plan or trust to a material
tax or penalty on prohibited transactions imposed under Section 4975 of the
Code or Section 406 of ERISA, (B) incurred any accumulated funding
deficiency with respect to any Employee Benefit Plan, whether or not
waived, or any other liability to the PBGC which remains outstanding other
than the payment of premiums and there are no premium payments which are
due and unpaid which
A-60
<PAGE>
could reasonably be likely to result in a Material Adverse Effect, (C)
failed to make a required contribution or payment to a Multiemployer Plan
which could reasonably be likely to result in a Material Adverse Effect,
(D) failed to make a required installment or other required payment under
Section 412 of the Code, Section 302 of ERISA or the terms of such Employee
Benefit Plan which could reasonably be likely to result in a Material
Adverse Effect, or (E) failed to make a required contribution or payment,
or otherwise failed to operate in compliance with any Foreign Benefit Law
regulating any Employee Benefit Plan which could reasonably be likely to
result in a Material Adverse Effect;
(iii) None of the Employee Benefit Plans maintained at any time by
the Borrower, any ERISA Affiliate, or any Subsidiary or the trusts created
thereunder has been terminated so as to result in a liability of the
Borrower, any ERISA Affiliate, or any Subsidiary under ERISA which could
reasonably be likely to result in a Material Adverse Effect, nor has any
Pension Plan of the Borrower, any ERISA Affiliate, or any Subsidiary
incurred any liability to the PBGC or any other Governmental Authority
which could reasonably be likely to result in a Material Adverse Effect,
other than for required insurance which has been paid or is not yet due and
payable; neither the Borrower, any ERISA Affiliate, nor any Subsidiary has
withdrawn from or caused a partial withdrawal to occur with respect to any
Multiemployer Plan resulting in any assessed and unpaid withdrawal
liability which could reasonably be likely to result in a Material Adverse
Effect; the Borrower, any ERISA Affiliate, and each Subsidiary has made or
provided for all contributions to all such Employee Benefit Plans which
they maintain and which are required as of the end of the most recent
fiscal year under each such plan which could reasonably be likely to result
in a Material Adverse Effect; neither the Borrower, any ERISA Affiliate,
nor any Subsidiary has incurred any accumulated funding deficiency with
respect to any Pension Plan, whether or not waived; nor has there been any
Termination Event, or other event or condition, which presents a material
risk of termination of any Employee Benefit Plan by the Borrower, any ERISA
Affiliate, any Subsidiary, the PBGC, or any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect;
(iv) The present value of all vested accrued benefits under each
Employee Benefit Plan which is subject to Title IV of ERISA, or the funding
of which is regulated by any Foreign Benefit Law did not, as of the most
recent valuation date for each such plan, exceed the then current value of
the assets of such Employee Benefit Plan allocable to such benefits except
for those situations where the failure to maintain such current value is
not reasonably likely to result in a Material Adverse Effect;
(v) The consummation of the Loans provided for in Article II will not
----------
involve any prohibited transaction under ERISA which is not subject to a
statutory or administrative exemption;
A-61
<PAGE>
(vi) To the best of the Borrower's knowledge, each Employee Benefit
Plan which is subject to Title IV of ERISA or the funding of which is
regulated by any Foreign Benefit Law, maintained by the Borrower or any
ERISA Affiliate, has been administered in accordance with its terms in all
respects and is in compliance in all respects with all applicable
requirements of ERISA, applicable Foreign Benefit Law and other applicable
laws, regulations and rules except where such failure to comply is not
reasonably likely to result in a Material Adverse Effect;
(vii) There has been no withdrawal liability incurred and unpaid with
respect to any Multiemployer Plan to which the Borrower, any ERISA
Affiliate, or any Subsidiary is or was a contributor which could reasonably
be expected to have a Material Adverse Effect;
(viii) Neither the Borrower nor any Subsidiary has any liability not
disclosed on any of the financial statements furnished to the Lenders
pursuant to Section 7.01(f) hereof, contingent or otherwise, under any plan
---------------
or program or the equivalent for unfunded post-retirement benefits,
including pension, medical and death benefits, which liability could
reasonably be likely to result in a Material Adverse Effect;
(ix) No proceeding, claim, lawsuit and/or investigation exists or, to
the best knowledge of the Borrower after due inquiry, is threatened
concerning or involving any Employee Benefit Plan which could reasonably be
likely result in a Material Adverse Effect;
(q) No Default. As of the date hereof, there does not exist any
----------
Default or Event of Default hereunder;
(r) Hazardous Materials. The Borrower and each Subsidiary is in
-------------------
compliance with all applicable Environmental Laws in all material respects.
Neither the Borrower nor any Subsidiary has been notified of any action, suit,
proceeding or investigation which calls into question compliance by the Borrower
or any Subsidiary with any Environmental Laws or which seeks to suspend, revoke
or terminate any license, permit or approval necessary for the generation,
handling, storage, treatment or disposal of any Hazardous Material which could
reasonably be expected to have a Material Adverse Effect;
(s) RICO. Neither the Borrower nor any Subsidiary is engaged in and
----
has not engaged in any course of conduct that could subject any of their
respective properties to any Lien, seizure or other forfeiture under any
criminal law, racketeer influenced and corrupt organizations law, civil or
criminal, or other similar laws;
(t) Employment Matters. Except as set forth on Schedule 7.01(t), the
------------------ ----------------
Borrower and each Subsidiary is in compliance in all material respects with all
applicable laws, rules and regulations pertaining to labor or employment
matters, including without limitation those
A-62
<PAGE>
pertaining to wages, hours, occupational safety and taxation and there is
neither pending or threatened any material litigation, administrative proceeding
nor, to the knowledge of the Borrower, any investigation, in respect of such
matters which could reasonably be expected to have a Material Adverse Effect;
(u) Year 2000 Compliance. The Borrower and its Subsidiaries have (i)
--------------------
initiated a review and assessment of all areas within its each of its
Subsidiaries business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan and time line
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable. The
Borrower reasonably believes that all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will be Year
2000 Compliant not later than September 30, 1999, except to the extent that a
failure to do so could not reasonably be expected to have a Material Adverse
Effect;
(v) Perfected Security Interests. The security interests created in
----------------------------
favor of the Agent for the benefit of the Lenders under the Security Instruments
constitute valid, perfected security interests in the Collateral described
therein, subject to no other Liens other than Permitted Liens.
ARTICLE VIII
Affirmative Covenants
---------------------
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Borrower will and will
cause each Subsidiary to:
8.01. Financial Reports, Etc. (a) as soon as practical and in any event
----------------------
within 95 days after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Agent and each Lender (i) a consolidated balance
sheet of the Borrower and its Subsidiaries, and the notes thereto, and the
related consolidated statements of income, stockholders' equity and cash flows
and the respective notes thereto, for such Fiscal Year, setting forth
comparative financial statements for the preceding Fiscal Year, all prepared in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis and containing opinions of independent certified public accountants
selected by the Borrower and approved by the Agent, which are unqualified; (ii)
an unaudited consolidating (on a location by location basis) balance sheet and
income statement of the Borrower and its Subsidiaries, all prepared in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis; and (iii) a certificate of an Authorized Representative demonstrating
compliance with Sections 9.01, 9.02, 9.03, 9.04 and 9.05 of this Agreement,
------------- ---- ---- ---- ----
which certificate shall be in the form attached hereto as Exhibit J;
---------
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<PAGE>
(b) as soon as practical and in any event within 50 days after the end
of each fiscal quarter (except the last of the Fiscal Year), deliver to the
Agent and each Lender (i) a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such reporting period, the related consolidated
statements of income, stockholders' equity for such reporting period and for the
period from the beginning of the Fiscal Year through the end of such reporting
period, accompanied by a certificate of an Authorized Representative to the
effect that such financial statements present fairly the financial position of
the Borrower and its Subsidiaries as of the end of such reporting period and the
results of their operations and the changes in their financial position for such
reporting period, in conformity with Generally Accepted Accounting Principals
applied on a Consistent Basis, subject however, to normal year end adjustments;
and (ii) an unaudited consolidating (on a location by location basis) balance
sheet and income statement of the Borrower and its Subsidiaries, all prepared in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis, subject however, to normal year end adjustments; and (iii) a certificate
of an Authorized Representative containing computations for such quarter
comparable to that required pursuant to Section 8.01(a)(ii);
-------------------
(c) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or any
Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower to its shareholders, bondholders or the financial
community in general, and (iii) any management letter or other report submitted
to the Borrower or any of its Subsidiaries by independent accountants in
connection with any annual, interim or special audit of the Borrower or any of
its Subsidiaries;
(d) as soon as practical and in any event within 30 days after the end
of each Fiscal Year of the Borrower, deliver to the Agent and each Lender a
capital and operating expense budget and consolidated financial projections for
the Borrower and its Subsidiaries for the next Fiscal Year, prepared in
accordance with GAAP applied on a Consistent Basis;
(f) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding the Borrower's and
any Subsidiary's operations, business affairs and financial condition as the
Agent or such Lender may reasonably request;
(g) Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Special Reports on Form 8-K (or, in each instance, any successor form or report)
within 5 days of filing such reports with the Securities and Exchange
Commission;
The Agent and the Lenders are hereby authorized to deliver a copy of any
such financial or other information delivered hereunder to the Lenders (or any
affiliate of any Lender) or to the Agent, to any Governmental Authority having
jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or acquisition
of any
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<PAGE>
participation interest in, any Obligation permitted by this Agreement subject to
the terms of Section 12.13.
-------------
8.02. Maintain Properties. Maintain all material properties necessary to
-------------------
its operations in good working order and condition (ordinary wear and tear
excepted) and make all needed repairs, replacements and renewals as are
necessary to conduct its business in accordance with customary business
practices.
8.03. Existence, Qualification, Etc. Do or cause to be done all things
-----------------------------
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits and maintain
its license or qualification to do business as a foreign corporation and good
standing in each jurisdiction in which the failure to so maintain or qualify
would have a Material Adverse Effect.
8.04. Regulations and Taxes. Comply with or contest in good faith all
---------------------
material statutes and governmental regulations and pay all material taxes,
assessments, governmental charges, claims for labor, supplies, rent and any
other obligation which, if unpaid, might become a Lien against any of its
properties except liabilities being contested in good faith and against which
adequate reserves have been established in accordance with Generally Accepted
Accounting Principles.
8.05. Insurance. (i) Keep all of its insurable properties adequately
---------
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner customarily insured
against by similar businesses owning such properties similarly situated, (ii)
maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property having such limits, deductibles, exclusions and co-insurance and other
provisions providing no less coverage than that specified in Schedule 8.05
-------------
attached hereto, such insurance policies to be in form satisfactory to the
Agent, (iii) maintain insurance under all applicable workers' compensation laws
(or in the alternative, maintain required reserves if self-insured for workers'
compensation purposes), and (iv) maintain insurance on all Collateral as
required by the Security Agreement.
8.06. True Books. Keep true books of record and account in which full, true
----------
and correct entries will be made of all of its dealings and transactions, and
set up on its books such reserves as may be required by Generally Accepted
Accounting Principles with respect to doubtful accounts and all taxes,
assessments, charges, levies and claims and with respect to its business in
general, and include such reserves in interim as well as year-end financial
statements.
8.07. Pay Indebtedness to Lenders and Perform Other Covenants. (a) Make
-------------------------------------------------------
full and timely payment of the principal of and interest on the Notes and all
other Obligations whether now existing or hereafter arising; and (b) duly comply
with all the terms and covenants contained in all Loan Documents and other
instruments and documents given to the Agent or the Lenders pursuant hereto or
thereto.
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<PAGE>
8.08. Right of Inspection. Permit the Agent and any Lender and
-------------------
accountants, attorneys or other consultants designated by the Agent and any
Lender at the Agent or any Lender's expense to visit and inspect any of the
properties, corporate books and financial reports of the Borrower and its
Subsidiaries, and to discuss their respective affairs, finances and accounts
with their principal executive officers and independent certified public
accountants, all at times reasonably convenient to the Borrower, at reasonable
intervals and with reasonable prior notice.
8.09. Observe all Laws. Conform to and duly observe in all material
----------------
respects all laws, rules and regulations and all other valid requirements of any
regulatory authority with respect to the conduct of its business.
8.10. Officer's Knowledge of Default. Upon the President, any Vice
------------------------------
President, the Chief Financial Officer or the Controller of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary described in Section
-------
10.01(e), cause such officer or an Authorized Representative to promptly notify
- --------
the Agent of the nature thereof, the period of existence thereof, and what
action the Borrower proposes to take with respect thereto.
8.11. Suits or Other Proceedings. Upon the President, any Vice President,
--------------------------
the Chief Financial Officer or the Controller of the Borrower obtaining
knowledge of any litigation or other proceedings being instituted against the
Borrower or any Subsidiary, or any attachment, levy, execution or other process
being instituted against any assets of the Borrower or any Subsidiary, in an
amount greater than $100,000 not otherwise covered by insurance, promptly
deliver to the Agent written notice thereof stating the nature and status of
such litigation, dispute, proceeding, levy, execution or other process.
8.12. Notice of Discharge of Hazardous Material or Environmental Complaint.
--------------------------------------------------------------------
Promptly provide to the Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims, or citations received by the
Borrower or any Subsidiary relating to any material (a) violation or alleged
violation by the Borrower or any Subsidiary of any applicable Environmental Laws
or OSHA; (b) release or threatened release by the Borrower or any Subsidiary of
any Hazardous Material, except where occurring legally; or (c) liability or
alleged liability of the Borrower or any Subsidiary for the costs of cleaning
up, removing, remediating or responding to a release of Hazardous Materials.
8.13. Environmental Compliance. If the Borrower or any Subsidiary shall
------------------------
receive notice from any governmental authority that the Borrower or any
Subsidiary has violated any applicable Environmental Laws, the Borrower shall to
the extent required by law and after expiration of all valid appeals and
administrative proceedings (and in any event within the time period permitted by
the applicable Governmental Authority) remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation.
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<PAGE>
8.14. Indemnification. The Borrower hereby agrees to defend, indemnify and
---------------
hold the Agent and each Lender and each of their affiliates and their respective
officers, directors, employees, agents, and advisors (each, an "Indemnified
Party") harmless from and against any and all claims, losses, liabilities,
damages and expenses (including, without limitation, cleanup costs and
reasonable attorneys' fees) arising directly or indirectly from, out of or by
reason of the handling, storage, treatment, emission or disposal of any
Hazardous Material by or in respect of the Borrower or any Subsidiary or
property owned or leased or operated by the Borrower or any Subsidiary, except
to the extent such claim, loss, liability, damage or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
The provisions of this Section 8.14 shall survive repayment of the Obligations,
------------
occurrence of the Revolving Credit Termination Date and expiration or
termination of this Agreement.
8.15. Further Assurances. At its cost and expense, upon request of the
------------------
Agent, duly execute and deliver or cause to be duly executed and delivered, to
the Agent such further instruments, documents, certificates, financing and
continuation statements, and do and cause to be done such further acts that may
be reasonably necessary or advisable in the reasonable opinion of the Agent to
carry out more effectively the provisions and purposes of this Agreement and the
other Loan Documents.
8.16. ERISA Requirements.
------------------
(a) With reasonable promptness, and in any event within thirty (30)
days thereof, give notice to the Agent of (a) the establishment of any new
Pension Plan (which notice shall include a copy of such plan), (b) the
commencement of contributions to any Employee Benefit Plan to which the Borrower
or any of its ERISA Affiliates was not previously contributing, (c) any material
increase in the benefits of any existing Employee Benefit Plan, (d) each funding
waiver request filed with respect to any Pension Plan and all communications
received or sent by the Borrower or any ERISA Affiliate with respect to such
request and (e) the failure of the Borrower or any ERISA Affiliate to make a
required installment or payment under Section 302 of ERISA or Section 412 of the
Code (in the case of Employee Benefit Plans regulated by the Code or ERISA) or
under any Foreign Benefit Law (in the case of Employee Benefit Plans regulated
by any Foreign Benefit Law) by the due date;
(b) Promptly and in any event within thirty (30) days of becoming
aware of the occurrence or forthcoming occurrence of any (a) Termination Event
or (b) nonexempt "prohibited transaction," as such term is defined in Section
406 of ERISA or Section 4975 of the Code, in connection with any Employee
Benefit Plan or any trust created thereunder, deliver to the Agent a notice
specifying the nature thereof, what action the Borrower or any ERISA Affiliate
has taken, is taking or proposes to take with respect thereto and, when known,
any action taken or threatened by the Internal Revenue Service, the Department
of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within thirty (30)
days for purposes of clauses (a), (b) and (c), deliver to the Agent copies of
(a) any unfavorable determination letter from the Internal Revenue Service
regarding the qualification of an Employee Benefit Plan
A-67
<PAGE>
under Section 401(a) of the Code, (b) all notices received by the Borrower or
any ERISA Affiliate of the PBGC's or any Governmental Authority's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (c) each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed by the Borrower or any ERISA Affiliate with the
Internal Revenue Service with respect to each Employee Benefit Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA. The Borrower will notify the Agent in writing
within five (5) Business Days of the Borrower or any ERISA Affiliate obtaining
knowledge or reason to know that the Borrower or any ERISA Affiliate has filed
or intends to file a notice of intent to terminate any Pension Plan under a
distress termination within the meaning of Section 4041(c) of ERISA.
8.17. Continued Operations. Continue at all times (i) to conduct its
--------------------
business and engage principally in a line or lines of business involving the
furnishing of personnel related services, and (ii) preserve, protect and
maintain free from Liens its material patents, copyrights, licenses, trademarks,
trademark rights, trade names, trade name rights, trade secrets and know-how
necessary or materially useful in the conduct of its operations, except to the
extent Borrower or its Subsidiaries is otherwise permitted hereunder to dispose
of assets.
8.18. Use of Proceeds. Use the proceeds of the Loans solely for the
---------------
purposes specified in Section 2.12 hereof.
------------
8.19. New Subsidiaries. (a) Subject to clause (c) below, within thirty (30)
----------------
days of the acquisition or creation of any Domestic Subsidiary or Direct Foreign
Subsidiary cause to be delivered to the Agent for the benefit of the Agent and
the Lenders each of the following:
(i) in the case of a Domestic Subsidiary, (A) a Guaranty Agreement
executed by such Domestic Subsidiary substantially in the form attached
hereto as Exhibit K, and (B) a Security Agreement executed by such Domestic
---------
Subsidiary substantially in the form of Exhibit G hereto, together with
---------
such Uniform Commercial Code financing statements on Form UCC-1 or
otherwise duly executed by such Domestic Subsidiary as "Debtor" and naming
the Agent for the benefit of the Agent and the Lenders as "Secured Party",
in form, substance and number sufficient in the reasonable opinion of the
Agent and its special counsel to be filed in all Uniform Commercial Code
filing offices in all jurisdictions in which filing is necessary or
advisable to perfect in favor of the Agent for the benefit of the Agent and
the Lenders the Lien on the Collateral conferred under such Security
Agreement to the extent such Lien may be perfected by Uniform Commercial
Code filing;
(ii) if the Subsidiary Securities issued by such Domestic Subsidiary
or Direct Foreign Subsidiary shall be owned by a Subsidiary who has not
then executed and delivered to the Agent a Pledge Agreement granting a Lien
to the Agent, for the benefit of the Agent and the Lenders, in such equity
interests, a Pledge Agreement executed by the Subsidiary that directly owns
such Subsidiary Securities substantially in the form
A-68
<PAGE>
attached hereto as Exhibit H, with appropriate revisions as to the identity
---------
of the pledgor if necessary (and as required by applicable law and Section
-------
8.19(b) if such Subsidiary is a Direct Foreign Subsidiary), and securing
-------
the obligations of such Pledgor under the Guaranty Agreement, and if the
Subsidiary Securities shall be owned by the Borrower or a Subsidiary who
has previously executed a Pledge Agreement, a Pledge Agreement Supplement
pertaining to such Subsidiary Securities.
(iii) if the Subsidiary Securities issued by such Domestic
Subsidiary or Direct Foreign Subsidiary constitute securities under Article
8 of the Uniform Commercial Code (1) the certificates representing 100% of
the Subsidiary Securities of a Domestic Subsidiary or (2) the certificates
representing not less than 65% of the Voting Securities and 100% of the
other Subsidiary Securities of any Direct Foreign Subsidiary and (3) duly
executed stock powers or powers of assignment in blank affixed thereto;
(iv) if the Subsidiary Securities issued by such Domestic Subsidiary
or Direct Foreign Subsidiary do not constitute securities and such
Subsidiary has not elected to have such interests treated as securities
under Article 8 of the Uniform Commercial Code, (A) Uniform Commercial Code
financing statements on form UCC-1 or otherwise duly executed by the
pledgor as "Debtor" and naming the Agent for the benefit of the Agent and
the Lenders as "Secured Party", in form, substance and number sufficient in
the reasonable opinion of the Agent and its special counsel to be filed in
all Uniform Commercial Code filing offices and in all jurisdictions in
which filing is necessary or advisable to perfect in favor of the Agent for
the benefit of the Agent and the Lenders the Lien on such Subsidiary
Securities and (B) a control agreement from the Registrar of such Domestic
Subsidiary or Direct Foreign Subsidiary, in form and substance acceptable
to the Agent and in which the Registrar (1) acknowledges that the pledgor
is at the date of such acknowledgment the sole record, and to its
knowledge, beneficial owner of the Subsidiary Securities, (2) acknowledges
the Lien in favor of the Agent conferred under the Pledge Agreement and
that such Lien will be reflected on the registry for such Subsidiary
Securities, (3) agrees that it will not register any transfer of such
Subsidiary Securities nor acknowledge any Lien in favor of any other
Person on such Subsidiary Securities, without the prior written consent of
the Agent, in each instance, until it receives notice from the Agent that
all Liens on such Collateral in favor of the Agent for the benefit of the
Agent and the Lenders have been released or terminated and (4) agrees that
upon receipt of notice from the Agent that an Event of Default has occurred
and is continuing and that the Subsidiary Securities identified in such
notice have been transferred to a transferee identified in such notice, it
will duly record such transfer of Subsidiary Securities on the appropriate
registry without requiring further consent from the pledgor and shall
thereafter treat the transferee as the sole record and beneficial owner of
such Subsidiary Securities pending further transfer, notwithstanding any
contrary instruction received from the pledgor;
A-69
<PAGE>
(v) a supplement to the appropriate schedule attached to the
appropriate Security Instruments listing the additional Collateral,
certified as true, correct and complete by the Authorized Representative
(provided that failure to deliver such supplement shall not impair the
rights conferred under the Security Instruments in the after acquired
Collateral);
(vi) an opinion of counsel to the Subsidiary dated as of the date of
delivery of the documents required by the foregoing clauses (i) through (v)
and addressed to the Agent and the Lenders, in form and substance
substantially similar to the opinion of counsel delivered pursuant to
Section 6.01(b) (or otherwise reasonably acceptable to the Agent), and
---------------
including opinions to the effect that:
(A) such Domestic Subsidiary or Direct Foreign Subsidiary is duly
organized, validly existing and in good standing in the jurisdiction
of its formation, has the requisite power and authority to own its
properties and conduct its business as then owned and then conducted
and proposed to be conducted and to execute, deliver and perform the
Loan Documents described in this Section 8.19 to which such Domestic
------------
Subsidiary or Direct Foreign Subsidiary is a signatory, and is duly
qualified to transact business and is in good standing as a foreign
corporation, partnership, or limited liability company in each other
jurisdiction in each other jurisdiction in which the character of the
properties owned or leased, or the business carried on by it, requires
such qualification and the failure to be so qualified would reasonably
be likely to result in a Material Adverse Effect;
(B) the execution, delivery and performance of the Loan Documents
described in this Section 8.19 to which such Domestic Subsidiary or
Direct Foreign Subsidiary is a signatory have been duly authorized by
al requisite organizational action (including any required shareholder
or partner approval), each of such agreements has been duly executed
and delivered and constitutes the valid and binding agreement of such
Domestic Subsidiary or Direct Foreign Subsidiary, enforceable against
such Domestic Subsidiary or Direct Foreign Subsidiary in accordance
with its terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law affecting
the enforceability of creditors' rights generally and to the effect of
general principles of equity (whether considered in a proceeding at
law or in equity); and
(C) the Uniform Commercial Code financing statements on Form
UCC-1 delivered to the Agent by the Domestic Subsidiary or Direct
Foreign Subsidiary in connection with the delivery of the Security
Instruments of such Domestic Subsidiary or Direct Foreign Subsidiary
have been duly executed by the Domestic Subsidiary or Direct Foreign
Subsidiary and are in form, substance and number sufficient for filing
in all Uniform Commercial Code filing offices in all jurisdictions in
which filing is necessary to perfect in favor of the Agent for the
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<PAGE>
benefit of the Agent and the Lenders the Lien on the Collateral
conferred under such Security Instruments to the extent such Lien may
be perfected by Uniform Commercial Code filing;
(D) the Pledged Interests are duly authorized, validly issued,
fully paid and nonassessable, and free of any preemptive rights, the
applicable Security Instrument (including foreign collateral
documents) is effective to create a valid and perfected security
interest in favor of the Agent for the benefit of the Agent and the
Lenders in the Pledged Interests; and
(E) in the case of Direct Foreign Subsidiaries only, that under
the laws of the applicable foreign jurisdiction, all agreements,
notices and other documents that are required to be executed,
delivered, filed or recorded and all other action required to be
taken, within or pursuant to the laws of such jurisdiction to perfect
the Lien conferred in favor of the Agent under the applicable Security
Instrument as against creditors of and purchasers for value from the
holder of the Pledged Interests has been duly executed, delivered,
filed, recorded or taken, as the case may be; and
(vii) current copies of the charter documents, including partnership
agreements and certificates of limited partnership, if applicable, and
bylaws of such Domestic Subsidiary or Direct Foreign Subsidiary, minutes of
duly called and conducted meetings (or duly effected consent actions) of
the Board of Directors, partners, or appropriate committees thereof (and,
if required by such charter documents, bylaws or by applicable laws, of the
shareholders or partners) of such Domestic Subsidiary or Direct Foreign
Subsidiary authorizing the actions and the execution and delivery of
documents described in this Section 8.19 and evidence satisfactory to the
------------
Agent (confirmation of the receipt of which will be provided by the Agent)
that any such Domestic Subsidiary is Solvent as of such date and after
giving effect to the Guaranty Agreement (all of such documents to be
accompanied, if the Agent so requests, with certified English translations
of the same); and
(viii) such further documents as the Agent may request, including,
but not limited to, foreign collateral documents and foreign counsel
opinions;
(b) Subject to the thirty day compliance period set forth in clause
(a) of this Section 8.19, cause at all times the Agent to have a duly perfected
------------
first priority security interest in (i) 100% of the Subsidiary Securities of
each Domestic Subsidiary and (ii) not less than 65% of the Voting Securities and
100% of the other Subsidiary Securities of each Direct Foreign Subsidiary;
(c) Notwithstanding the foregoing, however, Borrower and Subsidiaries
may establish or create Subsidiaries which are "inactive" (as hereinafter
defined) when established or created without necessity of complying with the
foregoing requirements so long as such
A-71
<PAGE>
Subsidiaries remain "inactive"; provided that, as soon as practicable after, but
--------
not later than thirty (30) days after, each such Subsidiary so established or
created ceases to be "inactive", then, Borrower or any Subsidiary establishing
or creating such Subsidiary, as the case may be, shall comply in all respects
with the foregoing requirements of this Section 8.19 in relation to such
------------
formerly "inactive" Subsidiary. As used herein, an "inactive" Subsidiary shall
mean any Subsidiary which has no assets or liabilities, other than as nominally
required under applicable law in order for such Subsidiary to be established or
created. "Inactive" Subsidiaries may include,without limitation, Subsidiaries
formed to reserve a certain corporate or trade name in anticipation of business
being done under that name and those formed in anticipation of an Acquisition
which is pending.
8.20. Year 2000 Compliance. The Borrower will promptly notify the Agent and
--------------------
the Lenders in the event the Borrower discovers or determines that any computer
application (including those affected by information received from its suppliers
and vendors) that is material to its or any of its Subsidiaries' business and
operations will not be Year 2000 Compliant on a timely basis, except to the
extent that such failure could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE IX
Negative Covenants
------------------
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Borrower will not, nor
will it permit any Subsidiary to:
9.01. Consolidated Leverage Ratio. Permit at the end of each fiscal quarter
---------------------------
the Consolidated Leverage Ratio to exceed that set forth below opposite such
period:
<TABLE>
<CAPTION>
<S> <C>
Four-Quarter Period Ending Consolidated Leverage Ratio
- -------------------------- ---------------------------
June 30, 1999 3.50 to 1.00
September 30, 1999 3.25 to 1.00
December 31, 1999 and thereafter 3.00 to 1.00
</TABLE>
9.02. Consolidated Fixed Charge Coverage Ratio. Permit at the end of each
----------------------------------------
fiscal Ratio. quarter the Consolidated Fixed Charge Coverage Ratio to be less
than 1.75 to 1.00.
9.03. Consolidated Net Worth. Permit Consolidated Net Worth to be
----------------------
$28,400,000 at December 31, 1998 and less than (i) Coverage Ratio to be less
than 1.75 to 1.00. (ii) as the last day of each following fiscal quarter of the
Borrower, the sum of (A) the amount of Consolidated Net Worth required to be
maintained pursuant to this Section 9.03 as at the end of the immediately
preceding fiscal quarter, plus (B)
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<PAGE>
75% of Consolidated Net Income (with no reduction for net losses during any
period) for such fiscal quarter of the Borrower and its Subsidiaries ending on
such day (including within "Consolidated Net Income" certain items otherwise
excluded, as provided for in the definition of "Consolidated Net Income"), plus
(C) 100% of the aggregate amount of all increases in the stated capital and
additional paid-in capital accounts of the Borrower resulting from the issuance
of equity securities.
9.04. Capital Expenditures. Make or become committed to make Capital
--------------------
Expenditures which exceed $4,000,000 in the aggregate in any Fiscal Year of the
Borrower commencing with the Fiscal Year ending December 31, 1999 (on a
noncumulative basis, provided that the Borrower may carry forward to a
--------
subsequent Fiscal Year up to $4,000,000 not expended in the previous Fiscal
Year).
9.05. Consolidated Rental Expense. Permit Consolidated Rental Expense for
---------------------------
any Fiscal Year to be greater than 3.5% of Consolidated Gross Revenues.
9.06. Indebtedness. Incur, create, assume or permit to exist any
------------
Indebtedness, howsoever evidenced, except
(a) Indebtedness existing as of the date hereof and as set forth in
Schedule 7.01(f) attached hereto and incorporated herein by reference and any
- ----------------
renewal or refinancings thereof so long as such renewal or refinancing does not
increase the principal amount or accelerate the maturity of such Indebtedness;
(b) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(c) Indebtedness arising under this Agreement;
(d) indebtedness consisting of Capital Leases and purchase money
Indebtedness not to exceed $3,000,000 in the aggregate outstanding at any time;
(e) Indebtedness in the form of seller notes related to Acquisitions
permitted by Section 9.08; provided that such seller notes are subordinated in
------------ --------
writing to the Obligations on terms acceptable to the Required Lenders and
provided further that the aggregate principal amount outstanding of such seller
notes shall in no event exceed $5,000,000 at any time;
(f) intercompany Indebtedness permitted under Section 9.08(v);
----------------
(g) the guaranty of the Non-Competition Agreement set forth as item
number 2 on Schedule 7.01(f); and
-----------------
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<PAGE>
(h) additional outstanding Indebtedness of up to an aggregate
principal amount of $1,000,000.
For purposes of determining the amount of Indebtedness incurred in connection
with an Acquisition and the Borrower's continued compliance with this Section
-------
9.06 after such Acquisition, any Indebtedness which under Generally Accepted
- ----
Accounting Principles must be recorded as a liability on the consolidated
balance sheet of the Borrower, whether or not constituting a Contingent
Obligation or Indebtedness for Money Borrowed, shall be deemed Indebtedness at
100% of the amount thereof for purposes of this Section 9.06, and to the extent
------------
such Indebtedness is not so required to be recorded as a liability, it shall not
be deemed Indebtedness for purposes of this Section 9.06.
------------
9.07. Transfer of Assets. Sell, lease, transfer or otherwise dispose of
------------------
(i) any interest in any Guarantor, or (ii) any other asset of Borrower or any
Guarantor except (a) assets sold in the ordinary course of business, (b) assets
which are worn out, obsolete or no longer necessary, or (c) assets transferred
among the Loan Parties.
9.08. Investments; Acquisitions. Purchase, own, invest in or otherwise
-------------------------
Acquire, directly or indirectly, any stock or other securities or all or
substantially all of the assets, or make or permit to exist any interest
whatsoever in any other Person or permit to exist any loans or advances to any
Person; provided, however, the Borrower and its Subsidiaries may maintain
-------- -------
investments or invest in or Acquire
(i) Eligible Securities;
(ii) investments existing as of the date hereof and as set forth in
Schedule 7.01(d) attached hereto;
----------------
(iii) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction or
partial satisfaction thereof in connection with accounts of financially
troubled Persons to the extent reasonably necessary in order to prevent or
limit loss;
(iv) Acquisitions so long as (A) the Person to be (or whose assets are
to be) Acquired does not oppose such Acquisition and the line or lines of
business of the Person to be Acquired are substantially the same as one or
more line or lines of business conducted by the Borrower and its
Subsidiaries or compliments the existing business of the Borrower and its
Subsidiaries, (B) no Default or Event of Default shall have occurred and be
continuing either immediately prior to or immediately after giving effect
to such Acquisition and the Borrower shall have furnished to the Agent (x)
proforma historical financial statements as of the end of the most recently
ended Fiscal Year of the Borrower and the most recently ended fiscal
quarter, if applicable, giving effect to such Acquisition and containing
adjustments to Consolidated EBITDA as set forth in the definition of
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Adjusted Consolidated EBITDA, (y) with respect to any Acquisition for which
the Cost of Acquisition equals or exceeds $10,000,000, audited, if
available, and otherwise unaudited, balance sheet and statements of income,
cash flows and shareholders equity of the Person to be acquired for its
most recently ended fiscal year and unaudited such statements for each
fiscal quarter thereafter; provided that the Agent in its sole discretion
--------
may require an audit if unaudited statements are unavailable, and (z) a
Compliance Certificate in the form of Exhibit J prepared on an historical
---------
proforma basis giving effect to such Acquisition, which Compliance
Certificate shall demonstrate that no Default or Event of Default would
exist immediately after giving effect thereto based on the use of Adjusted
Consolidated EBITDA for purposes of compliance with Section 9.01, (C) the
------------
Person Acquired shall be a wholly-owned Subsidiary, or be merged into the
Borrower or a wholly-owned Subsidiary (or if assets are being Acquired, the
acquiror shall be the Borrower or a wholly-owned Subsidiary), (D) the
consent of the Required Lenders shall be required if (1) the Person to be
(or whose assets are to be ) Acquired is domiciled outside the United
States of America, (2) if the Cost of Acquisition shall (x) exceed
$10,000,000 for any single Acquisition or (y) exceed $20,000,000 during any
twelve-month period after the Closing Date or (3) the Consolidated Leverage
Ratio would exceed 3.00 to 1.00 on a pro forma basis giving effect to such
Acquisition and (E) copies of all legal and financial information and
documentation, which, in the Agent's reasonable judgment is required to
evaluate any proposed Acquisition, shall be delivered to the Agent ten (10)
Business Days prior to any Acquisition;
(v) loans and advances to and investments in Subsidiaries so long as
such Subsidiary shall be a Guarantor or shall become a Guarantor pursuant
to Section 8.19 within not less than thirty (30) days after the receipt of
------------
the proceeds of the first such loan, advance or investment;
(vi) investments in the form of ownership of the capital stock of any
Subsidiary; and
(vii) guarantees of any Indebtedness of a Subsidiary permitted under
Section 9.06 hereof.
------------
9.09. Liens. Incur, create or permit to exist any pledge, Lien, charge or
-----
other encumbrance of any nature whatsoever with respect to any property or
assets of the Borrower or any Subsidiary to secure Indebtedness owed to any
other Person, other than Permitted Liens.
9.10. Restricted Payments. Make any Restricted Payment or apply or set apart
-------------------
any of their assets therefor or agree to do any of the foregoing; provided,
--------
however, the Borrower may purchase up to $1,000,000 of its own stock in each
Fiscal Year so long as (i) such repurchased stock is immediately retired and not
held in treasury stock and (ii) immediately prior to and immediately after
giving effect thereto no Default or Event of Default shall exist or occur and be
continuing.
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9.11. Merger or Consolidation. (a) Consolidate with or merge into any
-----------------------
other Person, or (b) permit any other Person to merge into it; provided,
however, (i) any Subsidiary of the Borrower may merge or consolidate with any
wholly-owned Subsidiary of the Borrower or any Guarantor who has secured its
Guaranty, (ii) any Person may merge with the Borrower or a wholly-owned
Subsidiary if the Borrower or such Subsidiary shall be the survivor thereof and
such merger shall not cause, create or result in the occurrence on any Default
or Event of Default hereunder.
9.12. Change in Control. Cause, suffer or permit any Change of Control.
-----------------
9.13. Transactions with Affiliates. Enter into any transaction after the
----------------------------
date hereof, including, without limitation, the purchase, sale, leasing or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of the Borrower (other than a Subsidiary), except (a) that such
Persons may render services to the Borrower or its Subsidiaries for compensation
at the same rates generally paid by Persons engaged in the same or similar
businesses for the same or similar services (including directors' fees), (b) in
the ordinary course of and pursuant to the reasonable requirements of the
Borrower's (or any Subsidiary's) business consistent with past practice of the
Borrower and its Subsidiaries, (c) pursuant to the agreements identified on
Schedule 9.13 hereof, (d) pursuant to employment and other similar agreements
- -------------
between the Borrower or any of its Subsidiaries and an individual who will
become an Affiliate as a result of an Acquisition, and (e) services provided by
the Borrower and any of its Subsidiaries to the Borrower and any of its
Subsidiaries.
9.14. ERISA. With respect to any Employee Benefit Plan or Multiemployer
-----
Plan maintained by the Borrower, any ERISA Affiliate or any Subsidiary:
(i) permit the occurrence of any Termination Event which would result
in a liability on the part of the Borrower, any ERISA Affiliate or any
Subsidiary to the PBGC or any Governmental Authority which is reasonably
likely to have a Material Adverse Effect;
(ii) allow or suffer to exist any prohibited transaction under Section
406 of ERISA or Section 4975 of the Code involving any of such Employee
Benefit Plans or any trust created thereunder which would subject the
Borrower, any ERISA Affiliate, or a Subsidiary to any material tax or
material penalty or other material liability on prohibited transactions
imposed under Section 4975 of the Code or Section 406 of ERISA;
(iii) fail to pay to any contribution to any Employee Benefit Plan,
Pension Plan or Multiemployer Plan any contribution which the Borrower, any
ERISA Affiliate or any Subsidiary is obligated to pay under the terms of
such plan which is reasonably likely to have a Material Adverse Effect;
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(iv) allow or suffer to exist any accumulated funding deficiency (as
defined in Section 302 of ERISA and Section 412 of the Code), whether or
not waived, with respect to any such employee pension benefit plan which is
reasonably likely to have a Material Adverse Effect;
(v) allow or suffer to exist any occurrence of a Termination Event or
any other reportable event or condition, which presents a material risk of
termination by the PBGC or any Governmental Authority, which termination
could result in any liability to the PBGC or any Governmental Authority
which could reasonably be likely to result in a Material Adverse Effect;
(vi) incur any withdrawal liability with respect to any Multi-employer
Plan which is reasonably likely to have a Material Adverse Effect;
(vii) permit the establishment of any Employee Benefit Plan providing
post-retirement welfare benefits or establish or amend any Employee Benefit
Plan which establishment or amendment could result in a material liability
to the Borrower or any ERISA Affiliate or materially increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer Plan;
or
(viii) fail, or permit the Borrower or any ERISA Affiliate to fail,
to establish, maintain and operate each Employee Benefit Plan in compliance
in all respects with the provisions of ERISA, the Code, all applicable
Foreign Benefit Laws and all other applicable laws and regulations and
interpretations thereof which is reasonably likely to have a Material
Adverse Effect.
9.15. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
----------------
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into a Borrower permitted
pursuant to Section 9.11.
------------
9.16. Rate Hedging Obligations. Incur any Rate Hedging Obligations or
------------------------
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except pursuant to a Swap Agreement.
9.17. Negative Pledge Clauses. Enter into or cause, suffer or permit to
-----------------------
exist any agreement with any Person other than the Agent and the Lenders
pursuant to this Agreement or any other Loan Document which prohibits or limits
the ability of any of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, provided, that the Borrower and any Subsidiary
--------
may enter into such an agreement applying exclusively to property acquired with
the proceeds of purchase money Indebtedness (including Capital Leases) permitted
hereunder.
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9.18. Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase, defease
---------------------------------
or otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any Indebtedness
exceeding $2,500,000 in the aggregate for all such payments, prepayments,
redemptions, purchases and satisfactions.
ARTICLE X
Events of Default and Acceleration
----------------------------------
10.01. Events of Default. If any one or more of the following events
-----------------
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan or other Obligation, when and as the same shall be due and
payable whether pursuant to any provision of Article II hereof, at maturity, by
----------
acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of any
amount of interest on any Loan or Reimbursement Obligation or of any fees or
other amounts payable to any of the Lenders under the Loan Documents on the date
on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance of any
covenant set forth in Sections 8.06, 8.07(a), 8.08, 8.10, 8.19, or Article IX
----------------------------------------- ----------
hereof (except that in the case of Section 9.06, 9.08(i) and 9.13 such default
--------------------- ----
shall continue for a period of ten (10) days after the occurrence thereof);
(d) if a default shall be made in the performance or observance of,
or shall occur under, any covenant, agreement or provision contained in this
Agreement or the Notes (other than as described in clauses (a), (b) or (c)
above) and such default shall continue for 30 or more days after the earlier of
receipt of notice of such default by the Authorized Representative from the
Agent or the Borrower becomes aware of such default, or if a default shall be
made in the performance or observance of, or shall occur under, any covenant,
agreement or provision contained in any of the other Loan Documents (beyond any
applicable grace period, if any, contained therein) or in any instrument or
document delivered to the Agent or the Lenders in connection with or pursuant to
this Agreement or any of the Obligations evidencing or creating any obligation
or guaranty in favor of the Agent or any of the Lenders, or if any Loan Document
ceases to be in full force and effect (other than by reason of any action by the
Agent), or if without the written consent of the Required Lenders, this
Agreement or any other Loan Document shall be disaffirmed or shall be invalid or
asserted to be invalid or be terminable or be terminated
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<PAGE>
or become void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or by reason of any action
by the Agent or the Lenders); or
(e) if a default shall occur, which is not waived, (i) in the
payment of any principal, interest, premium or other amounts with respect to any
Indebtedness (other than the Loans) of the Borrower or of any Subsidiary in an
amount not less than $2,500,000 in the aggregate outstanding, or (ii) in the
performance, observance or fulfillment of any term or covenant contained in any
agreement or instrument under or pursuant to which any such Indebtedness may
have been issued, created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, and such default shall continue for more than the period of grace,
if any, therein specified, or if such default shall permit the holder of any
such Indebtedness to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained herein or any other Loan Document or in any writing, certificate,
report or statement at any time furnished to the Agent or any of the Lenders by
or on behalf of the Borrower or any Subsidiary pursuant to or in connection with
this Agreement or the other Loan Documents, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary shall be unable to pay its
debts generally as they become due; file a petition to take advantage of any
insolvency statute; make an assignment for the benefit of its creditors;
commence a proceeding for the appointment of a receiver, trustee, liquidator or
conservator of itself or of the whole or any substantial part of its property;
file a petition or answer seeking reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or statute;
or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee, liquidator or
conservator of the Borrower or any Subsidiary or of the whole or any substantial
part of its properties and such order, judgment or decree continues unstayed and
in effect for a period of sixty (60) days, or approve a petition filed against
the Borrower or any Subsidiary seeking reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or statute
of the United States of America or any state, which petition is not dismissed
within sixty (60) days; or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction shall assume custody
or control of the Borrower or any Subsidiary or of the whole or any substantial
part of its properties, which control is not relinquished within sixty (60)
days; or if there is commenced against the Borrower or any Subsidiary any
proceeding or petition seeking reorganization, arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state which proceeding or petition remains
undismissed for a period of sixty (60) days; or if the Borrower or any
Subsidiary takes any action to indicate its consent to or approval of any such
proceeding or petition; or
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<PAGE>
(i) if (i) any judgment where the amount not covered by insurance
(or the amount as to which the insurer denies liability) is in excess of
$1,000,000 is rendered against the Borrower or any Subsidiary, or (ii) there is
any attachment, injunction or execution against any of the Borrower's or any
Subsidiary's properties for any amount in excess of $250,000; and such judgment,
attachment, injunction or execution has not been either paid, stayed,
discharged, bonded or dismissed for a period of thirty (30) days; or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend all or
any part of its operations which such suspension is reasonably likely to have a
Material Adverse Effect; or
(k) if the Borrower or any Subsidiary shall breach any of the terms
or conditions of any agreement under which any Rate Hedging Obligation permitted
pursuant to Section 9.16 is created and such breach shall continue beyond any
------------
grace period, if any, relating thereto pursuant to the terms of such Obligation,
or the Borrower or any Subsidiary shall disaffirm or seek to disaffirm any such
agreement or any of its obligations thereunder; or
(l) if at any time the Agent shall not be in receipt of the Guaranty
Agreement or any other Loan Document required under Section 8.19 within the time
------------
set forth thereunder;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be taken: (i)
the Agent, with the consent of the Required Lenders may, and at the
direction of the Required Lenders shall, declare any obligation of the
Lenders, the Swing Line Lender and the Issuing Bank to make further
Revolving Loans and Swing Line Loans or to issue additional Letters of
Credit terminated, whereupon the obligation of the Lenders to make
further Revolving Loans, of the Swing Line Lender to make further
Swing Line Loans, and of the Issuing Bank to issue additional Letters
of Credit hereunder shall terminate immediately, and (ii) the Agent
shall, at the direction of the Required Lenders, declare by notice to
the Borrower any or all of the Obligations to be immediately due and
payable, and the same, including all interest accrued thereon and all
other obligations of the Borrower to the Agent and the Lenders, shall
forthwith become immediately due and payable without presentment,
demand, protest, notice or other formality of any kind, all of which
are hereby expressly waived, anything contained herein or in any
instrument evidencing the Obligations to the contrary notwithstanding;
provided, however, that notwithstanding the above, if there shall
-------- -------
occur an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to make Revolving Loans, of the Swing Line
Lender to make Swing Line Loans, and of the Issuing Bank to issue
Letters of Credit hereunder shall automatically terminate and any and
all of the Obligations shall be immediately due and payable without
the necessity
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<PAGE>
of any action by the Agent or the Required Lenders or notice to the
Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or the
Required Lenders, deposit cash with the Agent in an amount equal to
the amount of any Letter of Credit Outstandings, as collateral
security for the repayment of any future drawings or payments under
such Letters of Credit, and such amounts shall be held by the Agent
pursuant to the terms of the LC Account Agreement; and
(C) The Agent and each of the Lenders shall have all of the
rights and remedies available under the Loan Documents or under any
applicable law.
10.02. Agent to Act. In case any one or more Events of Default shall occur
------------
and not have been waived, the Agent may, and at the direction of the Required
Lenders shall, proceed to protect and enforce its rights or remedies either by
suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
10.03. Cumulative Rights. No right or remedy herein conferred upon the
-----------------
Agent is intended to be exclusive of any other rights or remedies contained
herein or in any other Loan Document, and every such right or remedy shall be
cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
10.04. No Waiver. No course of dealing between the Borrower and any Lender
---------
or the Agent or any failure or delay on the part of any Lender or the Agent in
exercising any rights or remedies under any Loan Document or otherwise available
to it shall operate as a waiver of any rights or remedies and no single or
partial exercise of any rights or remedies shall operate as a waiver or preclude
the exercise of any other rights or remedies hereunder or of the same right or
remedy on a future occasion.
10.05. Allocation of Proceeds. If an Event of Default has occurred and not
----------------------
been waived, and the maturity of the Notes has been accelerated pursuant to
Article X hereof, all payments received by the Agent hereunder, in respect of
- ---------
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) the reasonable expenses incurred in connection with retaking,
holding, preserving, processing, maintaining or preparing for sale, lease or
other disposition of, any Collateral, including reasonable attorney's fees and
legal expenses pertaining thereto;
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(b) amounts due to the Lenders and the Issuing Bank pursuant to
Sections 2.10, 3.03, 3.04 and 12.05;
- -----------------------------------
(c) amounts due to the Agent pursuant to Section 11.08;
-------------
(d) payments of interest on the Revolving Loans, Swing Line Loans and
Reimbursement Obligations to be applied for the ratable benefit of the Lenders
(with amounts payable in respect of Swing Line Outstandings being included in
such calculation and paid to the Swing Line Lender);
(e) payments of principal of the Revolving Loans, Swing Line Loans and
Reimbursement Obligations to be applied for the ratable benefit of the Lenders
(with amounts payable in respect of Swing Line Outstandings being included in
such calculation and paid to the Swing Line Lender);
(f) payments of cash amounts to the Agent as collateral security in
respect of outstanding Letters of Credit pursuant to Section 10.01(B);
----------------
(g) amounts due to the Issuing Bank, the Agent and the Lenders
pursuant to Sections 3.2(h), 8.14, and 12.05;
--------------------------------
(h) payments of all other amounts due under any of the Loan Documents,
if any, to be applied for the ratable benefit of the Lenders;
(i) amounts due to any of the Lenders in respect of Obligations
consisting of liabilities under any Swap Agreement with any of the Lenders on a
pro rata basis according to the amounts owed; and
(j) any surplus remaining after application as provided for herein, to
the Borrower or otherwise as may be required by applicable law.
ARTICLE XI
The Agent
---------
11.01. Appointment, Powers and Immunities. Each Lender hereby irrevocably
----------------------------------
appoints and authorizes the Agent to act as its agent under this Agreement and
the other Loan Documents with such powers and discretion as are specifically
delegated to the Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in Section 11.05 and the
-------------
first sentence of Section 11.06 hereof shall include its affiliates and its own
--------------
and its affiliates' officers, directors, employees, and agents): (a) shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and shall not be a trustee or fiduciary for any Lender;
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(b) shall not be responsible to the Lenders for any recital, statement,
representation, or warranty (whether written or oral) made in or in connection
with any Loan Document or any certificate or other document referred to or
provided for in, or received by any of them under, any Loan Document, or for the
value, validity, effectiveness, genuineness, enforceability, or sufficiency of
any Loan Document, or any other document referred to or provided for therein or
for any failure by any Loan Party or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Loan Party or the satisfaction of any condition
or to inspect the property (including the books and records) of any Loan Party
or any of its Subsidiaries or affiliates; (d) shall not be required to initiate
or conduct any litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted to be taken by it
under or in connection with any Loan Document, except for its own gross
negligence or willful misconduct. The Agent may employ agents and attorneys-in-
fact and shall not be responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care.
11.02. Reliance by Agent. The Agent shall be entitled to rely upon any
-----------------
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Loan Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 12.01 hereof. As to any matters not expressly provided for by this
- -------------
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of the Required Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that the Agent shall not be required to take any
-------- -------
action that exposes the Agent to personal liability or that is contrary to any
Loan Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
11.03. Defaults. The Agent shall not be deemed to have knowledge or notice
--------
of the occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or Event of
Default, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall (subject to Section 11.02 hereof) take such action with respect to such
-------------
Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
-------- ----
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
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11.04. Rights as Lender. With respect to its Revolving Credit Commitment
----------------
and Letter of Credit Commitment and the Loans and Swing Line Loans made by it,
and Letters of Credit issued by it, NationsBank (and any successor acting as
Agent) in its capacity as a Lender and the Swing Line Lender and the Issuing
Bank hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. NationsBank (and any successor
acting as Agent) and its affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with any Loan Party or any of its Subsidiaries or affiliates as if it
were not acting as Agent, and NationsBank (and any successor acting as Agent)
and its affiliates may accept fees and other consideration from any Loan Party
or any of its Subsidiaries or affiliates for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
11.05. Indemnification. The Lenders agree to indemnify the Agent (to the
---------------
extent not reimbursed under Section 12.05 hereof, but without limiting the
-------------
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Loan Document; provided that no Lender shall be liable
--------
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any costs of expenses payable by the Borrower under Section
-------
12.05, to the extent that the Agent is not promptly reimbursed for such costs
- -----
and expenses by the Borrower. The agreements contained in this Section shall
survive payment in full of the Loans and all other amounts payable under this
Agreement.
11.06. Non-Reliance on Agent and Other Lenders. Each Lender agrees that it
---------------------------------------
has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Loan Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or
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business of any Loan Party or any of its Subsidiaries or affiliates that may
come into the possession of the Agent or any of its affiliates.
11.07. Resignation of Agent. The Agent may resign at any time by giving
--------------------
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article XI shall continue in effect for its
----------
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
11.08. Fees. The Borrower agrees to pay to the Agent, for its individual
----
account, an annual Agent's fee as from time to time agreed to by the Borrower
and Agent in writing.
A-85
<PAGE>
ARTICLE XII
Miscellaneous
-------------
12.01. Assignments and Participations. (a) Each Lender may assign to one or
------------------------------
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Notes, its Participations in Reimbursement Obligations and Swing Line
Outstandings and its Revolving Credit Commitment and Letter of Credit
Commitment); provided, however, that
-------- -------
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under this
Agreement, any such partial assignment shall be in an amount at least equal
to $5,000,000 or an integral multiple of $500,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant, and
not varying, percentage of all of its rights and obligations under this
Agreement and the Notes (except that any assignment by NationsBank shall
not include its rights, benefits or duties as the Issuing Bank or Swing
Line Lender) and each such assignment shall result in all Lenders having an
equivalent Applicable Commitment Percentage under the Revolving Credit
Commitment, Letter of Credit Commitment, and Participations in
Reimbursement Obligations and Swing Line Outstandings; and
(iv) the parties to such assignment shall execute and deliver to the
Agent for its acceptance an Assignment and Acceptance in the form of
Exhibit B hereto, together with any Notes subject to such assignment and a
---------
processing fee of $3,500; provided that such fee is not to be charged to
--------
the Borrower unless the assignment is made pursuant to Section 4.07 hereof.
------------
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section 12.01, the assignor, the
-------------
Agent and the Borrower shall make appropriate arrangements so that, if required,
new Notes are issued to the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Agent certification as to exemption
from deduction or withholding of Taxes in accordance with Section 4.06.
------------
(b) The Agent shall maintain at its address referred to in Section
------
12.02 a copy of each Assignment and Acceptance delivered to and accepted by it
- -----
and a register for the
A-86
<PAGE>
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B hereto, (i) accept
---------
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations (at no cost to the Borrower)
to one or more Persons in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Revolving Credit Commitment
and its Loans); provided, however, that (i) such participation shall be in an
-------- -------
amount at least equal to $1,000,000 or an integral multiple of $500,000 in
excess thereof, (ii) such Lender's obligations under this Agreement shall
remain unchanged, (iii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iv) the
participant shall be entitled (A) to the benefit of the yield protection
provisions contained in Article IV to the extent the Lender from which the
----------
participant bought its participation shall be entitled to such provisions and
(B) the right of set-off contained in Section 12.03, and (v) the Borrower shall
-------------
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to its
Loans and its Note and to approve any amendment, modification, or waiver of any
provision of this Agreement (except that each such participant shall have the
right to approve any amendments, modifications, or waivers decreasing the amount
of principal of or the rate at which interest is payable on such Loans or Note,
extending any scheduled principal payment date or date fixed for the payment of
interest on such Loans or Note, or extending its Revolving Credit Commitment, or
releasing all or any material portion of the Collateral or releasing any
material Guarantor (or a combination of Guarantors which would collectively
constitute material Guarantors) other than as permitted by Section 9.07 or
------------
Section 9.11.
- ------------
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Any Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants
A-87
<PAGE>
(including prospective assignees and participants) provided that such Persons
--------
(i) are Eligible Assignees and (ii) agree in writing to the confidentiality
provisions set forth in Section 12.13 hereof.
-------------
(g) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and permitted
assigns of such party and all covenants, provisions and agreements by or on
behalf of the Borrower which are contained in the Loan Documents shall inure to
the benefit of the successors and permitted assigns of the Agent, the Lenders,
or any of them. The Borrower may not assign or otherwise transfer to any other
Person any right, power, benefit or privilege (or any interest therein)
conferred hereunder or under any of the other Loan Documents, or delegate (by
assumption or otherwise) to any Person any duty, obligation, or liability
arising hereunder or under any of the other Loan Documents, and any such
purported assignment, delegation or other transfer shall be void.
12.02. Notices. Any notice shall be conclusively deemed to have been
-------
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device) or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address, or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower or any Guarantor:
ACSYS, Inc.
75 14th Street
Suite 2200
Atlanta, Georgia 30309
Attention: Mr. Brad Mullinax, Chief Financial Officer
Telephone: (404) 817-9440
Telefacsimile: (404) 815-4703
(b) if to the Agent:
NationsBank, N.A.
MD2-600-03-02
6610 Rockledge Drive
Bethesda, Maryland 20817
Attention: Ms. Barbara Levy
Telephone: (301) 493-7256
Telefacsimile: (301) 571-9098
A-88
<PAGE>
with a copy to:
NationsBank, N.A.
MD2-600-03-02
6610 Rockledge Drive
Bethesda, Maryland 20817
Attention: Commercial Lending
(c) if to any Lender:
At the addresses set forth on the signature pages hereof and on
the signature pages of each Assignment and Acceptance.
12.03. Right of Setoff; Adjustments. (a) Upon the occurrence and during
----------------------------
the continuance of any Event of Default, each Lender (and each of its
affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Notes held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Notes and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however, that the
-------- -------
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of set-
off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive
any payment of all or part of the Loans owing to it, or interest thereon, or
receive any Collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, or otherwise), in a greater proportion than any such payment to or
Collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such Collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such Collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
-------- -------
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this Section 12.03 may, to
-------------
the fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrower in the amount of such
participation.
A-89
<PAGE>
12.04. Survival. All covenants, agreements, representations and warranties
--------
made herein shall survive the making by the Lenders of the Loans and the
issuance of the Letters of Credit and the execution and delivery to the Lenders
of this Agreement and the Notes and shall continue in full force and effect so
long as any of Obligations remain outstanding or any Lender has any commitment
hereunder or the Borrower has continuing obligations hereunder unless otherwise
provided herein.
12.05. Expenses and Indemnification. The Borrower agrees
----------------------------
(a) to pay or reimburse the Agent for all its reasonable and
customary out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of, this Agreement or any of the other
Loan Documents (including travel expenses relating to closing), and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable and customary fees and disbursements of
counsel to the Agent as well as all such expenses and costs arising in
connection with any amendment, supplement or modification to this Agreement or
any other Loan Documents,
(b) to pay or reimburse the Agent and each of the Lenders for all
their reasonable costs and expenses incurred in connection with the enforcement
(only from and after the occurrence and continuation of a Default or Event of
Default) or preservation of any rights under this Agreement and the other Loan
Documents, including without limitation, the reasonable fees and disbursements
of its counsel,
(c) to pay, indemnify and hold the Agent and each of the Lenders
harmless from any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any failure to pay or delay in paying,
documentary, stamp, excise and other similar taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of
this Agreement or any other Loan Documents, or consummation of any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement or any other Loan Documents, and
(d) to pay, indemnify, and hold the Agent and each of the Lenders and
each of their affiliates and their respective officers, directors, employees,
agents, and advisors harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any indemnity agreement or undertaking
made by the Agent or any Lender to facilitate the processing of checks, payroll
or otherwise, of Borrower, or in any respect relating to the transactions
contemplated hereby or thereby or the use or anticipated use of proceeds of any
Loan or of any Letter of Credit, (all the foregoing, collectively, the
"indemnified liabilities"); provided, however, that the Borrower shall have no
-------- -------
obligation hereunder with respect to indemnified liabilities arising from (i)
the willful misconduct or gross negligence of the party
A-90
<PAGE>
seeking indemnification, (ii) legal proceedings commenced against the Agent or
any Lender by any security holder or creditor thereof arising out of and based
upon rights afforded any such security holder or creditor solely in its capacity
as such, (iii) any taxes imposed upon the Agent or any Lender other than the
documentary, stamp, excise and similar taxes described in clause (c) above or
any tax which would be payable to Lender by Borrower pursuant to Article IV
----------
hereof, or (iv) any transfer taxes, costs, fees or expenses incurred in
connection with any transfer of the Notes other than as requested or directed by
the Borrower pursuant to Section 4.07. The agreements in this subsection shall
------------
survive repayment of the Notes and all other Obligations hereunder and
termination of this Agreement.
12.06. Amendments and Waivers. Any provision of this Agreement or any other
----------------------
Loan Document may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Lenders (and, if
Article XI or the rights or duties of the Agent are affected thereby, by the
- ----------
Agent); provided that no such amendment or waiver shall, unless signed by all
--------
the Lenders (i) increase the Revolving Credit Commitments of the Lenders or
increase the Total Revolving Credit Commitment, (ii) reduce the principal of or
rate of interest on any Loan or any fees or other amounts payable hereunder,
(iii) postpone any date fixed for the payment of any scheduled installment of
principal of or interest on any Loan or any fees or other amounts payable
hereunder or for termination of any Revolving Credit Commitment, (iv) change the
percentage of the Revolving Credit Commitments or of the unpaid principal amount
of the Notes, or the number of Lenders, which shall be required for the Lenders
or any of them to take any action under this Section or any other provision of
this Agreement or (v) release every or any material Guarantor (or a combination
of Guarantors which would collectively constitute material Guarantors) or all or
a material portion of the Collateral.
12.07. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
12.08. Termination. The termination of this Agreement shall not affect any
-----------
rights of the Borrower, the Agent or the Lenders or any obligation of the
Borrower, the Agent or the Lenders, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations (other than contingent obligations which expressly survive
the termination of this Agreement and under which no claim is made) arising
prior to or after such termination have been irrevocably paid in full. The
rights granted to the Agent for the benefit of the Lenders hereunder and under
the other Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until the occurrence of the
Facility Termination Date or the Borrower has furnished the Agent and the
Lenders with an indemnification reasonably satisfactory to the Required Lenders.
All representations, warranties, covenants, waivers and agreements contained
herein shall survive termination hereof until payment in full of the Obligations
unless otherwise provided
A-91
<PAGE>
herein. Notwithstanding the foregoing, if after receipt of any payment of all or
any part of the Obligations, any Lender is for any reason compelled to surrender
such payment to any Person because such payment is determined to be void or
voidable as a preference, impermissible setoff, a diversion of trust funds or
for any other reason, this Agreement shall continue in full force and the
Borrower shall be liable to, and shall indemnify and hold such Lender harmless
for, the amount of such payment surrendered until the Lenders shall have been
finally and irrevocably paid in full. The provisions of the foregoing sentence
shall be and remain effective notwithstanding any contrary action which may have
been taken by the Lender in reliance upon such payment, and any such contrary
action so taken shall be without prejudice to the Lender's rights under this
Agreement and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
12.09. Severability. If any provision of this Agreement or the other Loan
------------
Documents shall be determined to be illegal or invalid as to one or more of the
parties hereto, then such provision shall remain in effect with respect to all
parties, if any, as to whom such provision is neither illegal nor invalid, and
in any event all other provisions hereof shall remain effective and binding on
the parties hereto.
12.10. Entire Agreement. This Agreement, together with the other Loan
----------------
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
12.11. Agreement Controls. In the event that any term of any of the Loan
------------------
Documents other than this Agreement conflicts with any term of this Agreement,
the terms and provisions of this Agreement shall control.
12.12. Usury Savings Clause. Notwithstanding any other provision herein,
--------------------
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrower shall
pay to the Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges,
A-92
<PAGE>
or receives any consideration which constitutes interest in excess of the
Highest Lawful Rate, then any such excess shall be canceled automatically and,
if previously paid, shall at such Lender's option be applied to the outstanding
amount of the Loans made hereunder or be refunded to the Borrower. As used in
this paragraph, the term "Highest Lawful Rate" means the maximum lawful interest
rate, if any, that at any time or from time to time may be contracted for,
charged, or received under the laws applicable to such Lender which are
presently in effect or, to the extent allowed by law, under such applicable laws
which may hereafter be in effect and which allow a higher maximum nonusurious
interest rate than applicable laws now allow.
12.13. Confidentiality. The Agent and each Lender (each, a "Lending Party")
---------------
agrees to keep confidential any information furnished or made available to it by
the Borrower pursuant to this Agreement that is marked confidential; provided
--------
that nothing herein shall prevent any Lending Party from disclosing such
information (a) to any other Lending Party or any affiliate of any Lending
Party, or any officer, director, employee, agent or advisor of any Lending Party
or affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending party other than as a result of a disclosure by
any Lending Party prohibited by this Agreement, (g) in connection with any
litigation to which such Lending Party or any of its affiliates may be a party,
(h) to the extent necessary in connection with the exercise of any remedy under
this Agreement or any other Loan Document, and (i) subject to provisions
substantially similar to those contained in this Section 12.13, to any actual or
-------------
proposed participant or assignee.
12.14. Governing Law; Waiver of Jury Trial.
-----------------------------------
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN THOSE
SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE GOVERNED BY THE
LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO CONTRACTS EXECUTED, AND TO
BE FULLY PERFORMED, IN SUCH STATE.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW: THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN
THE COUNTY OF FULTON, STATE OF GEORGIA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE
EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH
SUIT, ACTION OR PROCEEDING,
A-93
<PAGE>
AND THE BORROWER HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER AGREES
THAT SERVICE OF PROCESS MAY BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS
AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR
BY REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.02, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER
-------------
THE APPLICABLE LAWS IN EFFECT IN THE STATE OF GEORGIA.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF SHALL PRECLUDE
--------------- ---
THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE THE
BORROWER OR ANY OF THE BORROWER'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION
TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT
OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH, THE BORROWER, THE AGENT AND THE LENDERS HEREBY AGREE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL
BY JURY IN ANY SUCH ACTION OR PROCEEDING.
[Signatures on following pages]
A-94
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
made, executed and delivered by their duly authorized officers as of the day and
year first above written.
ACSYS, INC.
By: /s/ Timothy Mann, Jr.
-----------------------
Name: Timothy Mann, Jr.
-------------------
Title: Chief Executive Officer
-------------------------
A-95
<PAGE>
NATIONSBANK, N. A., as Agent
By: /s/ Barbara P. Levy
---------------------
Name: Barbara P. Levy
----------------
Title: Senior Vice President
---------------------
A-96
<PAGE>
NATIONSBANK, N. A., as a Lender
By: /s/ Barbara P. Levy
--------------------
Name: Barbara P. Levy
----------------
Title: Senior Vice President
---------------------
Lending Office:
NationsBank, National Association
MD2-600-03-02
6610 Rockledge Drive
Bethesda, Maryland 20817
Attention: Commercial Lending
A-97
<PAGE>
FIRST UNION NATIONAL BANK
By: ________________________________
Name:_______________________________
Title: ____________________________
Lending Office:
First Union National Bank
______________________
______________________
______________________
Attention: ___________
A-98
<PAGE>
WACHOVIA BANK, N.A.
By:_________________________________
Name:_______________________________
Title: ____________________________
Lending Office:
Wachovia Bank, N.A.
191 Peachtree Street
MC-GA 3940A
Atlanta, Georgia 30303
Attention: Andrew B. Deskins
A-99
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 3-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1998
<PERIOD-START> JAN-01-1999 OCT-01-1998
<PERIOD-END> MAR-31-1999 DEC-31-1998
<CASH> 0 1,777
<SECURITIES> 0 0
<RECEIVABLES> 26,576 23,794
<ALLOWANCES> 1,108 958
<INVENTORY> 0 0
<CURRENT-ASSETS> 29,543 26,686
<PP&E> 7,790 6,960
<DEPRECIATION> 0 0
<TOTAL-ASSETS> 89,339 86,363
<CURRENT-LIABILITIES> 12,658 11,320
<BONDS> 0 0
0 0
0 0
<COMMON> 30,548 30,499
<OTHER-SE> 2,613 3,204
<TOTAL-LIABILITY-AND-EQUITY> 89,339 86,363
<SALES> 42,066 24,415
<TOTAL-REVENUES> 42,066 24,415
<CGS> 23,123 13,584
<TOTAL-COSTS> 23,123 13,584
<OTHER-EXPENSES> 15,758 9,805
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 750 128
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<INCOME-TAX> (496) 3,174
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</TABLE>
