THIRD AMENDMENT TO CREDIT AGREEMENT AND NOTES
THIS THIRD AMENDMENT TO CREDIT AGREEMENT AND NOTES, dated as
of June 29, 2000 among RIGHT MANAGEMENT CONSULTANTS, INC. (the "Company"), RIGHT
ASSOCIATES-GOVERNMENT SERVICES, INC., RIGHT MANAGEMENT CONSULTANTS, S.A., RIGHT
ASSOCIATES BELGIUM, INC., RIGHT ASSOCIATES FRANCE, INC., RIGHT ASSOCIATES, LTD.,
RIGHT ASSOCIATES LICENSE, INC., R.M.C. & CO., SNC, RIGHT D&A PTY LTD, RMC OF
ILLINOIS, INC., RIGHT LICENSE HOLDING, INC. and TEAMS INTERNATIONAL, LLC (the
"Borrowers"), PNC BANK, NATIONAL ASSOCIATION ("PNC Bank") and FIRST UNION
NATIONAL BANK (together with PNC Bank, the "Banks") and PNC BANK, NATIONAL
ASSOCIATION, as Agent for the Banks under the Credit Agreement (in such
capacity, the "Agent").
BACKGROUND
The Borrowers, the Banks and the Agent are parties to a Credit
Agreement dated as of December 20, 1996, as amended by a First Amendment to
Credit Agreement dated as of June 26, 1997 and by a Second Amendment to Credit
Agreement dated as of April 10, 1998 (the "Credit Agreement"), whereby the Banks
have agreed to provide a $40,000,000 Credit Facility (the "Credit Facility") to
the Borrowers evidenced by the Revolving Credit Note issued to each of the Banks
in the principal amount of $20,000,000 (collectively, the "Revolving Credit
Notes"). (All terms used in this Amendment shall have the meanings set forth in
the Credit Agreement, unless otherwise defined herein.)
The Borrowers have requested and the Agent and the Banks have
agreed to increase the maximum amount of the Credit Facility to $60,000,000 and
to make certain other amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement is hereby amended as
follows:
(a) The definition of Applicable Margin in Section 1.1 is hereby amended and
restated to read in full as follows:
"Applicable Margin": on any date, for a Eurodollar
Loan, the percentage per annum set forth below in the column
entitled Eurodollar Rate, opposite the Total Debt/EBITDA Ratio
shown on the last Total Debt/EBITDA Ratio Certificate
delivered by the Borrowers to the Agent pursuant to subsection
5.2(c) prior to such date:
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Eurodollar
Level Total Debt/EBITDA Ratio Rate
----- ----------------------- ----------
I Less than or equal to
0.25 to 1.0 .75%
II Less than or equal to 0.75
to 1.0 but greater than
0.25 to 1.0 .875%
III Less than or equal to 1.25
to 1.0 but greater than
0.75 to 1.0 1.00%
IV Less than or equal to 1.75
to 1.0 but greater than
1.25 to 1.0 1.25%
V Greater than 1.75 to 1.0 1.50%
; provided, however, that (a) in the event that no Total
Debt/EBITDA Ratio Certificate has been delivered for a fiscal
quarter prior to the last date on which it can be delivered
without violation of subsection 5.2(c), the Applicable Margin
from such date until such Total Debt/EBITDA Ratio Certificate
is actually delivered shall be that applicable when the Total
Debt/EBITDA Ratio is greater than 1.75 to 1.0, (b) in the
event that the actual Total Debt/EBITDA Ratio for any fiscal
quarter is subsequently determined to be greater than that set
forth in the Total Debt/EBITDA Ratio Certificate for such
fiscal quarter, the Applicable Margin shall be recalculated
for the applicable period based upon such actual Total
Debt/EBITDA Ratio and (c) anything in this definition to the
contrary notwithstanding, until receipt by the Agent of the
Total Debt/EBITDA Ratio Certificate for the fiscal quarter
ending March 31, 2000, the Applicable Margin shall be that
applicable when the Total Debt/EBITDA Ratio is less than or
equal to 1.25 to 1.0 but greater than 0.75 to 1.0. Any
additional interest on the Loans resulting from the operation
of clause (b) above shall be payable by the Borrowers jointly
and severally to the Banks within five (5) days after receipt
of a written demand therefor from the Agent.
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(b) The definition of Commitment Fee Rate in Section 1.1 is hereby amended and
restated to read in full as follows:
"Commitment Fee Rate": on each day during each fiscal
quarter of the Company, the percentage per annum set forth
below opposite the Total Debt/EBITDA Ratio shown on the Total
Debt/EBITDA Ratio Certificate delivered to the Agent pursuant
to subsection 5.2(c) for the immediately preceding fiscal
quarter:
Commitment Fee
Level Total Debt/EBITDA Ratio Rate
----- ----------------------- ------------------
I Less than or equal to 0.25 to 1.0 .175%
II Less than or equal to 0.75 to 1.0 but
greater than 0.25 to 1.0 .200%
III Less than or equal to 1.25 to 1.0 but
greater than 0.75 to 1.0 .225%
IV Less than or equal to 1.75 to 1.0 but
greater than 1.25 to 1.0 .250%
V Greater than 1.75 to 1.0 .300%
; provided, however, that, (a) in the event that no Total Debt/EBITDA Ratio
Certificate has been delivered for a fiscal quarter prior to the last day of the
next succeeding fiscal quarter, the Commitment Fee Rate during such fiscal
quarter shall be that applicable when the Total Debt/EBITDA Ratio is greater
than 1.75 to 1.0, (b) in the event that the actual Total Debt/EBITDA Ratio for
any fiscal quarter is subsequently determined to be greater than that set forth
in the Total Debt/EBITDA Ratio Certificate for such fiscal quarter, the
Commitment Fee Rate shall be recalculated for the applicable period based upon
such actual Total Debt/EBITDA Ratio and (c) anything in this definition to the
contrary notwithstanding, until receipt by the Agent of the Total Debt/EBITDA
Ratio Certificate for the fiscal quarter ending March 31, 2000, the Commitment
Fee Rate shall be that applicable when the Total Debt/EBITDA Ratio is less than
or equal to 1.25 to 1.0 but greater than 0.75 to 1.0. Any additional Commitment
Fees that is due to the Banks resulting from the operation of clause (b) above
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shall be payable by the Borrowers jointly and severally within five (5) days
after receipt of a written demand therefor from the Agent.
(c) The definition of Permitted Acquisition in Section 1.1 is hereby amended and
restated to read in full as follows:
"Permitted Acquisition": an acquisition by a Borrower
of the stock or assets of a Person engaged in the career
management, human resources staffing, career recruiting, human
resources product development and human resources consulting
services business, provided that: (a) the Person to be
acquired (or the assets of which are to be acquired) had
either positive operating income or no more than $500,000 in
operating losses during the preceding 12 months ending on the
last day of the calendar quarter preceding the proposed date
of acquisition; (b) at the time that any definitive agreement
is entered into in respect of such acquisition, no Default or
Event of Default shall exist or would exist if such
acquisition were consummated on such date (assuming for
purposes of the covenants contained in Section 6.1 that pro
forma adjustments are made to the financial statements of the
Borrowers reflecting such acquisition; provided, that
historical EBITDA of the Person to be acquired (or the assets
of which are to be acquired) shall be included for purposes of
calculating such covenant compliance only if audited financial
statements of such Person are received by the Agent within 30
days prior to the consummation of such acquisition); (c) the
gross purchase price for such acquisition shall not result in
the Available Commitments falling below $5,000,000; and (d)
with respect to any acquisition in which the gross purchase
price shall exceed $2,500,000, financial statements covering
the assets or operations proposed to be acquired are provided
to the Agent and each Bank within 30 days after the
consummation of any such acquisition.
(d) The definition of Termination Date in Section 1.1 is hereby amended and
restated to read in full as follows:
"Termination Date": the earlier of (a) June 30, 2003 or any
anniversary of such date to which the Termination Date shall
have been extended pursuant to subsection 2.14(d) hereof and
(b) the date the Commitments are terminated as provided
herein.
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(e) Section 6.1(a) is hereby amended and restated to read in full as follows:
(a) Maintenance of Net Worth. Permit
Consolidated Net Worth on any day to be less than (i) from
December 31, 1999 until December 30, 2000, $44,785,000 and
(ii) thereafter, the sum of (A) $44,785,000 plus (B) fifty
percent (50%) of Consolidated Net Income for each fiscal year
thereafter commencing with the fiscal year ending December 31,
2000, exclusive of any fiscal year in which Consolidated Net
Income is a negative, plus (C) one-hundred percent (100%) of
the Net Proceeds from the issuance after December 31, 1999 of
Capital Stock of any Borrower or Subsidiary thereof.
(f) Schedule I attached hereto shall be substituted for Schedule I attached to
the Credit Agreement.
2. Amendment to Notes. The Revolving Credit Note of each Bank is hereby amended
by deleting the references therein to either "Twenty Million Dollars" or
"$20,000,000" and substituting therefor "Thirty Million Dollars" or
"$30,000,000", as the case may be.
3. Representations and Warranties. Borrowers hereby represent and warrant to the
Agent and the Banks that:
(a) The representations and warranties contained in Section 3 of the Credit
Agreement are true and correct as of the date of this Agreement.
(b) No Default or Event of Default exists under the Credit Agreement as of the
date of this Agreement.
(c) This Agreement has been duly authorized by all requisite action on behalf of
each of the Borrowers and constitutes the legal, valid and binding obligation of
each of the Borrowers enforceable in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general principles of equity.
(d) The execution, delivery and performance of this Agreement will not violate
any applicable provision of law or judgment, order or regulation of any court or
of any public or governmental agency or authority nor conflict with or
constitute a breach of or a default under any instrument to which any of the
Borrowers is a party or by which any of the Borrowers or any of their respective
properties is bound.
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(e) No approval, consent or authorization of, or registration, declaration or
filing with, any governmental or public body or authority, or any trustee or
holder of any indebtedness, is required in connection with the valid execution,
delivery and performance by the Borrowers of this Agreement, except such as have
been obtained.
4. Conditions Precedent. The effectiveness of the amendments set forth herein is
subject to the fulfillment, to the satisfaction of the Agent and its counsel, of
the following conditions precedent:
(a) The Borrower shall have delivered to the Agent the following, all of which
shall be in form and substance satisfactory to the Agent and shall be duly
completed and executed:
(i) This Amendment;
(ii) Copies certified by the respective Secretary or Assistant Secretary of each
of the Borrowers formed under the laws of a jurisdiction located in the United
States of (A) corporate resolutions authorizing the execution and delivery of
this Amendment and (B) articles or certificates of incorporation and by-laws or
other applicable constituent documents (or a certification that there have been
no changes therein since the date certified copies thereof were delivered to the
Agent in connection with the Credit Agreement); and
(iii) Such additional documents, certificates and information as the Agent may
require pursuant to the terms hereof or otherwise reasonably request.
(b) The representations and warranties set forth in the Credit Agreement shall
be true and correct on and as of the date hereof.
5. Ratification; References; No Waiver. Except as expressly amended by this
Amendment, the Credit Agreement shall continue to be, and shall remain,
unaltered and in full force and effect in accordance with its terms. All
references in the Credit Agreement to "this Agreement," "hereof," "hereto" and
"hereunder" shall be deemed to be references to the Credit Agreement as amended
hereby, and all references in any of the Loan Documents to the Credit Agreement
or the Revolving Credit Notes shall be deemed to be to the Credit Agreement and
the Revolving Credit Notes as amended hereby. This Amendment does not and shall
not be deemed to constitute a waiver by the Agent or the Banks of any Default or
Event of Default or of any of the Agent's or the Banks' other rights or
remedies.
6. Release; Indemnification. In consideration of the execution of this Amendment
by the Agent and the Banks, the Borrowers hereby release the Agent and the Banks
and their respective officers, attorneys, agents and employees from any
liability, suit, damage, claim, loss or expense of any kind or nature whatsoever
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and howsoever arising that the Borrowers ever had, now have, or may have against
the Agent or the Banks or any of them arising out of or relating to the Credit
Facility or the Agent's or the Banks' acts or omissions with respect thereto.
The Borrowers hereby further agree to indemnify and hold harmless the Agent and
the Banks and their respective officers, directors, attorneys, agents and
employees from any loss, damage, judgment, liability or expense (including
counsel fees) suffered by or rendered against any of them on account of any
claims arising out of or relating to the Credit Facility. The Borrowers further
state that they have carefully read the foregoing release, know the contents
thereof and grant the same as their own free act and deed.
7. Miscellaneous.
(a) Counterparts. This Agreement may be executed by one or more of the parties
to this Agreement in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company, the Agent and each Bank.
(b) Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or of the Credit Agreement, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(c) GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA.
(d) Successors; Assigns. Each and every one of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the Borrowers,
the Agent and the Banks and their respective successors and assigns. No rights
are intended to be created hereunder for the benefit of any third party donee,
creditor or incidental beneficiary.
(e) Headings. The paragraph headings of this Agreement are for convenience only
and shall not be used to interpret any provision hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
RIGHT MANAGEMENT CONSULTANTS, INC.
RIGHT ASSOCIATES-GOVERNMENT
SERVICES, INC.
RIGHT MANAGEMENT CONSULTANTS, S.A.
RIGHT ASSOCIATES BELGIUM, INC.
RIGHT ASSOCIATES FRANCE, INC.
RIGHT ASSOCIATES, LTD.
RIGHT ASSOCIATES LICENSE, INC.
R.M.C. & CO., SNC
RIGHT D&A PTY LTD
RMC OF ILLINOIS, INC.
RIGHT LICENSE HOLDING, INC.
TEAMS INTERNATIONAL, LLC
By: /S/ CHARLES J. MALLON
---------------------
Name: Charles J. Mallon
Title: Executive Vice President and
Chief Financial Officer
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PNC BANK, NATIONAL ASSOCIATION, as a
Bank and as Agent
By: /S/ FORREST B. PATTERSON, JR.
-----------------------------
Name: Forrest B. Patterson, Jr.
-------------------------
Title: Vice President
--------------
FIRST UNION NATIONAL BANK, as a Bank
By: /S/ KATHLEEN M. HEDRICH
-----------------------
Name: Kathleen M. Hedrich
Title: Vice President
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SCHEDULE I
BANKS AND COMMITMENT INFORMATION
Bank and Lending Office(s) Commitment
PNC Bank, National Association $30,000,000
1600 Market Street
Philadelphia, PA 19103
First Union National Bank $30,000,000
Broad and Walnut Streets
Philadelphia, PA 19109
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