<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
COMMISSION FILE NUMBER 0-19600
CORE, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2828817
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
18881 VON KARMAN AVENUE, SUITE 1750, IRVINE, CALIFORNIA 92612
(Address of principal executive offices) (zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (949) 442-2100
Indicate by check "X" whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
On May 3, 2000 there were 9,077,665 shares of the Registrant's Common
Stock outstanding.
<PAGE>
CORE, INC.
FORM 10-Q
FOR THE QUARTER ENDED MARCH 31, 2000
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PART I FINANCIAL INFORMATION PAGE
-------
<S> <C>
Item 1. Financial Statements
Consolidated Condensed Balance Sheets 3
Consolidated Condensed Statements of Operations (Unaudited) 5
Consolidated Condensed Statements of Cash Flows (Unaudited) 6
Notes to Consolidated Condensed Financial Statements (Unaudited) 7
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 10
Item 3. Quantitative and Qualitative Disclosures About Market Risk 14
PART II OTHER INFORMATION
Item 1. Legal Proceedings N/A
Item 2. Changes in Securities and Use of Proceeds 14
Item 3. Defaults Upon Senior Securities N/A
Item 4. Submission of Matters to a Vote of Security Holders N/A
Item 5. Other Information N/A
Item 6. Exhibits and Reports on Form 8-K 14
Signatures 15
</TABLE>
2
<PAGE>
CORE, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
2000 1999
(UNAUDITED) (NOTE 1)
---------------------- ---------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ - $ -
Accounts receivable, net of allowance for doubtful accounts
of $505,045 at March 31, 2000 and $476,444 at December 31, 1999 8,756,451 8,669,329
Unbilled receivables 4,378,788 2,628,030
Notes receivable from officers 64,462 69,662
Prepaid expenses 443,828 802,990
Other current assets 303,041 182,584
---------------------- ---------------------
Total current assets 13,946,570 12,352,595
Unbilled receivables, net of current portion 2,266,213 2,577,723
Property and equipment, net 9,414,248 8,918,285
Other assets, net 1,698,269 1,787,226
Goodwill and intangibles, net of accumulated amortization
of $2,670,910 at March 31, 2000 and $2,308,023 at December 31, 1999 25,640,954 25,963,841
---------------------- ---------------------
Total assets $ 52,966,254 $ 51,599,670
====================== =====================
</TABLE>
3
<PAGE>
CORE, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS - CONTINUED
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
2000 1999
(UNAUDITED) (NOTE 1)
-------------------- --------------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 624,507 $ 875,795
Accrued expenses 3,196,009 3,492,859
Accrued payroll 522,550 1,073,642
Advances under revolving credit agreement 1,625,000 -
Notes payable 79,435 77,674
Capital lease obligations 75,494 71,981
-------------------- --------------------
Total current liabilities 6,122,995 5,591,951
Advances under revolving credit agreement, net of current portion 13,875,000 14,300,000
Notes payable, net of current portion 20,997 41,528
Deferred rent, net of current portion 46,370 50,234
Capital lease obligations, net of current portion 273,690 276,878
Stockholders' equity:
Preferred stock, no par value, authorized 500,000 shares; no
shares outstanding - -
Common stock, $0.10 par value per share; authorized
30,000,000 shares; issued and outstanding 8,637,966 at
March 31, 2000 and 8,114,288 at December 31, 1999 863,797 811,429
Additional paid-in capital 41,384,856 40,515,660
Accumulated deficit (9,621,451) (9,988,010)
-------------------- --------------------
Total stockholders' equity 32,627,202 31,339,079
-------------------- --------------------
Total liabilities and stockholders' equity $ 52,966,254 $ 51,599,670
==================== ====================
</TABLE>
See accompanying notes.
4
<PAGE>
CORE, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS (UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
------------------------------------------
2000 1999
------------------------------------------
<S> <C> <C>
Revenues $ 17,146,044 $ 14,695,631
Cost of services 8,806,127 8,519,584
------------------- -------------------
Gross profit 8,339,917 6,176,047
Operating expenses:
Selling, general and administrative 5,165,223 3,900,481
Depreciation and amortization 1,081,749 865,434
Non-recurring realignment charges 1,148,193 -
------------------- -------------------
Total operating expenses 7,395,165 4,765,915
------------------- -------------------
Income from operations 944,752 1,410,132
Other income (expense):
Interest income 10,801 2,320
Interest expense (428,994) (362,431)
------------------- -------------------
Total other expense (418,193) (360,111)
------------------- -------------------
Income before income taxes 526,559 1,050,021
Income tax provision 160,000 167,960
------------------- -------------------
Net income $ 366,559 $ 882,061
=================== ===================
Net income per common share:
Basic $ 0.04 $ 0.11
=================== ===================
Diluted $ 0.04 $ 0.11
=================== ===================
Weighted average shares:
Basic 8,182,000 7,853,000
=================== ===================
Diluted 8,472,000 8,301,000
=================== ===================
</TABLE>
See accompanying notes.
5
<PAGE>
CORE, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
----------------------------------------
2000 1999
----------------------------------------
<S> <C> <C>
Net cash used in operating activities $ (831,527) $ (487,896)
Investing activities:
Additions to property and equipment (1,172,605) (1,064,435)
Additions to goodwill and intangible assets (40,000) (14,790)
Reductions on note receivable 37,258 -
Increase in other assets (61,493) (30,133)
------------------- -------------------
Net cash used in investing activities (1,236,840) (1,109,358)
Financing activities:
Borrowings under credit agreement 3,400,000 1,500,000
Repayments under credit agreement (2,200,000) (2,300,000)
Payments for origination and other fees pursuant to credit agreement (20,015) (86,592)
Payments on notes payable (18,770) (67,588)
Payments on capital lease obligations (14,412) (6,015)
Issuance of common stock upon exercise of stock options 921,564 411,631
------------------- -------------------
Net cash provided by (used in) financing activities 2,068,367 (548,564)
------------------- -------------------
Net decrease in cash and cash equivalents - (2,145,818)
Cash and cash equivalents at beginning of period - 2,226,020
------------------- -------------------
Cash and cash equivalents at end of period $ - $ 80,202
=================== ===================
</TABLE>
See accompanying notes.
<PAGE>
CORE, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
MARCH 31, 2000
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited consolidated condensed financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and pursuant to the rules and regulations of the
Securities and Exchange Commission, but do not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements. The balance sheet at December 31, 1999 has been derived
from the audited financial statements of CORE, INC. ("CORE") at that date.
In the opinion of management, all adjustments (consisting of only normal
recurring adjustments) considered necessary for a fair presentation have been
included. Operating results for the three-month period ended March 31, 2000 are
not necessarily indicative of the results that may be expected for the year
ended December 31, 2000. For further information, refer to the consolidated
financial statements for the year ended December 31, 1999 contained in CORE's
annual report on Form 10-K filed March 30, 2000, as amended by CORE's Form
10-K/A filed with the Securities and Exchange Commission on May 1, 2000.
NOTE 2 - CREDIT AGREEMENT
On August 31, 1998, CORE entered into a revolving line of credit agreement (the
"Initial Credit Agreement") with Fleet National Bank ("Fleet"). Under the terms
of the Amended and Restated Credit Agreement dated February 28, 2000 (the
"Restated Credit Agreement"), CORE may borrow up to specified amounts at either
(i) the prime base rate plus 0.50%, or (ii) the London Interbank Offered Rate
("LIBOR") plus 3.50%. The original maximum credit availability under the
Restated Credit Agreement of $18,500,000 is subject to mandatory commitment
reductions each quarter (beginning on March 31, 2000) in amounts ranging from
$875,000 to $1,250,000. At March 31, 2000, the maximum credit availability was
$17,625,000. The Restated Credit Agreement expires on June 30, 2004.
At March 31, 2000 and December 31, 1999, CORE had outstanding borrowings of
$15,500,000 and $14,300,000, respectively, under the revolving line of credit
which were all tied to the prime base lending rate (9.00% at March 31, 2000)
plus the applicable margin.
The Restated Credit Agreement is secured by substantially all of CORE's assets
and requires CORE to meet certain financial covenants, including minimum ratios
for interest, debt service and fixed charge coverage along with minimum net
worth levels. Additionally, the Restated Credit Agreement prohibits the payment
of dividends by CORE without the Bank's written consent. CORE was either in
compliance with or had obtained a waiver from Fleet for all the financial
covenants contained in the Restated Credit Agreement at March 31, 2000. A
waiver, which extends through June 16, 2000, was granted with respect to the
unsatisfied minimum net worth requirement as of March 31, 2000.
CORE has entered into an interest rate protection arrangement with Fleet that
limits CORE's exposure to significant increases in the base lending rate. The
arrangement places an effective cap on the prime base lending rate at 9.75% (or
LIBOR at 6.75%) for a substantial portion of the outstanding borrowings over the
life of the Restated Credit Agreement.
In connection with the Initial Credit Agreement and related amendments, CORE has
issued two Warrants to purchase shares of its Common Stock to Fleet. The
original Warrant granted on August 31, 1998 entitles the holder to purchase up
to 156,322 shares of CORE's Common Stock (subject to certain adjustments), at an
exercise price of $6.92 per share. The original Warrant is exercisable beginning
August 31, 1999 and expires August 31, 2003. The second Warrant granted in
connection with the Third Amendment to the Initial Credit Agreement, dated April
28, 1999, entitles the holder to purchase up to 187,000 shares of CORE's Common
Stock (subject to certain adjustments), at an exercise price of $12.00 per
share. The second Warrant was exercisable upon the execution of the Third
Amendment and expires June 30, 2004.
7
<PAGE>
CORE, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (UNAUDITED) - CONTINUED
NOTE 3 - ARBITRATION
On February 10, 2000, an arbitrator issued an Interim Award in which he
concluded that CORE and its wholly-owned subsidiary, TCM Services, Inc. ("TCM"),
breached an Asset Purchase Agreement dated March 17, 1998 with Transcend
Services, Inc. and Transcend Case Management, Inc. (collectively "Transcend").
TCM had acquired in March 1998 and subsequently returned in December 1998,
certain assets relating to Transcend's workers' compensation case management
services (the "Business.") The arbitrator ordered CORE and TCM to pay Transcend
the calculated earn-out payment based upon the formula established in the Asset
Purchase Agreement and to reimburse Transcend for its attorney's fees and costs.
The resulting earn-out consideration, amounting to $1,740,920, was required to
be delivered in the form of CORE common stock based on the market price as of
December 20, 1999 ($7.00).
In accordance with the terms of the Interim Award, CORE issued 248,703 shares of
its common stock to Transcend and reimbursed Transcend $183,270 for associated
attorney fees and costs on March 31, 2000. The charges associated with the stock
issuance and cost reimbursement to Transcend were recorded in December 1999.
CORE does not intend to take back possession of the Business and is currently
working with Transcend to reach a final arrangement on the disposition of the
Business.
NOTE 4 - REALIGNMENT CHARGES
CORE recorded non-recurring charges of $1,148,000 during the three months ended
March 31, 2000 as a result of realignment activities within its service lines
and administrative functions. The charges primarily include severance costs
related to a reduction in workforce and costs to initiate the relocation of the
WorkAbility(R) data center from the East Coast to the West Coast. CORE expects
an additional $300,000 in costs to be required in 2000 to complete the
relocation of the data center which will be recorded as non-recurring charges as
incurred.
NOTE 5 - EARNINGS PER COMMON SHARE
The following table sets forth the computation of basic and diluted earnings per
share for the periods indicated:
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
-----------------------------------------------
2000 1999
-----------------------------------------------
Numerator:
<S> <C> <C>
Net income $ 367,000 $ 882,000
====================== ======================
Denominator:
Denominator for basic earnings
per share: weighted-average shares 8,182,000 7,853,000
Effect of dilutive stock options and warrants 290,000 448,000
---------------------- ----------------------
Denominator for diluted earnings
per share: adjusted weighted-average
shares and assumed conversions 8,472,000 8,301,000
====================== ======================
Basic earnings per share $ 0.04 $ 0.11
====================== ======================
Diluted earnings per share $ 0.04 $ 0.11
====================== ======================
</TABLE>
8
<PAGE>
CORE, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (UNAUDITED) - CONTINUED
NOTE 6 - SEGMENT REPORTING
CORE reports segment information in accordance with Statement of Financial
Accounting Standards ("SFAS") No. 131 "Disclosures about Segments of an
Enterprise and Related Information." SFAS No. 131 establishes standards for the
way that public companies report information about operating segments and
related disclosures about products and services, geographic areas and major
customers. CORE operates in a single industry segment: employee absence
management services.
NOTE 7 - COMPREHENSIVE INCOME
Total comprehensive income was $367,000 for the three months ended March 31,
2000 and $882,000 for the three months ended March 31, 1999, respectively.
NOTE 8 - ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." CORE expects to
adopt the new Statement effective January 1, 2001. SFAS No. 133 will require
CORE to recognize all derivatives on the balance sheet at fair value. CORE does
not anticipate that the adoption of this Statement will have a significant
effect on its consolidated results of operations or financial position.
9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
CORE, INC. ("CORE") is a national provider of employee absence management
services to Fortune 500 companies and other self-insured employers, third-party
administrators and insurance carriers. CORE's services include Integrated
Disability Management (which consist of CORE's proprietary WorkAbility(R)
Absence Management program, disability reinsurance management services, social
security disability benefits advocacy, analytic consulting services, onsite job
profiling analysis and workplace risk management services, and licensing), Peer
Review Analysis (which consist of specialty physician and behavioral health
review services), and other services including Medicare coordination of
benefits, health care benefits utilization review and case management services.
CORE's services are designed to prevent absence, promote early return to work,
improve productivity, and manage disabilities from "day one" through return to
work or retirement, without compromising the quality of health care services
provided to patients.
This Quarterly Report on Form 10-Q contains forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995 and CORE's
actual results could differ materially from those contemplated by such
statements. Such statements reflect management's current views, are based on
many assumptions and are subject to risks and uncertainties. Some important
factors CORE believes could cause such results to differ include CORE's reliance
on its WorkAbility program, CORE's dependence on key clients, risks associated
with CORE's growth strategy, increases or changes in government regulation and
competition. The foregoing list of factors is not intended to represent a
complete list of the general or specific risks that may affect CORE. It should
be recognized that other risks might be significant, presently or in the future.
CORE does not intend to update or publicly release any revisions to the
forward-looking statements.
CURRENT DEVELOPMENTS
On February 10, 2000, an arbitrator issued an Interim Award in which he
concluded that CORE and its wholly-owned subsidiary, TCM Services, Inc. ("TCM"),
breached an Asset Purchase Agreement dated March 17, 1998 with Transcend
Services, Inc. and Transcend Case Management, Inc. (collectively "Transcend").
TCM had acquired in March 1998 and subsequently returned in December 1998,
certain assets relating to Transcend's workers' compensation case management
services (the "Business.") The arbitrator ordered CORE and TCM to pay Transcend
the calculated earn-out payment based upon the formula established in the Asset
Purchase Agreement and to reimburse Transcend for its attorney's fees and costs.
The resulting earn-out consideration, amounting to $1,740,920, was required to
be delivered in the form of CORE common stock based on the market price as of
December 20, 1999 ($7.00).
In accordance with the terms of the Interim Award, CORE issued 248,703 shares of
its common stock to Transcend and reimbursed Transcend $183,270 for associated
attorney fees and costs on March 31, 2000. The charges associated with the stock
issuance and cost reimbursement to Transcend were recorded in December 1999.
CORE does not intend to take back possession of the Business and is currently
working with Transcend to reach a final arrangement on the disposition of the
Business.
CORE recorded non-recurring charges of $1,148,000 during the three months ended
March 31, 2000 as a result of realignment activities within its service lines
and administrative functions. The charges primarily include severance costs
related to a reduction in workforce and costs to initiate the relocation of the
WorkAbility(R) data center from the East Coast to the West Coast. CORE expects
an additional $300,000 in costs to be required in 2000 to complete the
relocation of the data center which will be recorded as non-recurring charges as
incurred.
10
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth certain statement of operations data for the
periods indicated expressed as a percentage of revenues:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------------
2000 1999
--------------------------
<S> <C> <C>
Revenues 100.0% 100.0%
Cost of services 51.4 58.0
Gross profit 48.6 42.0
Selling, general and administrative expense 30.1 26.5
</TABLE>
The following table sets forth the contribution to total revenues of each of
CORE's principal service lines for the periods indicated:
THREE MONTHS ENDED MARCH 31,
2000 1999
----------------------------------------------
AMOUNT PERCENT AMOUNT PERCENT
----------------------------------------------
(Dollars in thousands)
Integrated Disability
Management $ 13,010 76% $ 10,377 71%
Peer Review Analysis 2,754 16 2,229 15
Exiting/exited services - - 556 4
Other service lines 1,382 8 1,534 10
----------- --------- ----------- ---------
$ 17,146 100% $ 14,696 100%
=========== ========= =========== =========
THREE MONTHS ENDED MARCH 31, 2000 AND 1999
Revenues increased by $2,450,000 (17%) for the three months ended March 31, 2000
from the first quarter of 1999. Growth in Integrated Disability Management
contributed $2,633,000 (107%) of CORE's overall net increase in revenues for the
three months ended March 31, 2000, as compared to the same period in 1999.
CORE's WorkAbility Absence Management program contributed 54% of the increase in
Integrated Disability Management for the three months ended March 31, 2000 as
compared to the same period in 1999 due to the addition of new clients and the
expansion of services to existing clients. Revenues from Disability Reinsurance
Management Services, Inc. ("DRMS") contributed 45% of the increase in Integrated
Disability Management revenues for the three months ended March 31, 2000 as
compared to the same period in 1999.
Revenues from the Peer Review Analysis service line increased $525,000 (24%) for
the three months ended March 31, 2000 as compared to the same period in the
previous year. Although Peer Review Analysis added new clients during the
quarter, this increase was due primarily to an increase in the volume of
referrals from existing clients.
Revenues from services that CORE exited or expected to exit decreased $556,000
(100%) for the three months ended March 31, 2000 as compared to the same period
in the previous year. During 1999, this service line included revenue from the
behavioral health programs of Integrated Behavioral Health, Inc. ("IBH"). As a
result of the sale of IBH's assets on June 21, 1999, operations within the
exiting/exited service line ceased.
Revenues from other service lines (which includes utilization review, Medicare
coordination of benefits and other case management services), decreased $152,000
(10%) overall for the three months ended March 31, 2000, as compared to the same
period in 1999. CORE expects that revenues from other service lines will
continue to decline in future periods.
11
<PAGE>
CORE's top five clients represented 39% of revenues for the three months ended
March 31, 2000 as compared to 44% for the same period in 1999. Bell Atlantic
accounted for approximately 15% and 20% of revenues for the three month periods
ended March 31, 2000 and 1999, respectively. No other single client represented
more than 10% of total revenues for these periods.
Cost of services for CORE includes direct expenses associated with the delivery
of our review and managed care services, including salaries for professional,
clerical and license support staff, the cost of physician reviewer consultants
and telephone expense. Cost of services increased $287,000 (3%) for the three
months ended March 31, 2000 from the first quarter of 1999. The increase is
primarily the result of increased staffing levels required to service new and
growing clients.
CORE's gross profit performance for the three months ended March 31, 2000
increased to 49% from 42% in 1999. Gross profit performance for each of
CORE's principal service lines for the three months ended March 31, 2000 and
1999, respectively, are: 50% and 44% for Integrated Disability Management,
46% and 39% for Peer Review Analysis and 45% and 40% for other service lines.
The gross profit performance realized under all the continuing service lines
is primarily due to greater efficiencies in providing services to a larger
client base.
Selling, general and administrative expenses include the cost of salaries for
sales, executive, administrative and information services personnel, rent,
travel expenses and other overhead items. Selling, general and administrative
expenses increased $1,265,000 (32%) for the three months ended March 31, 2000
from the first quarter of 1999. Higher personnel and other costs associated with
supporting CORE's expanded growth in operations contributed in part to the
increase in selling, general and administrative expenses. CORE also increased
sales and product development activities during the first quarter of 2000 as
compared to the same period in 1999. Finally, CORE incurred additional costs
associated with the maintenance of our computer network hardware and software as
capacity has been expanded to accommodate growth. As a result of the increased
activities, selling, general and administrative expenses, as a percentage of
revenues, increased to 30% for the three months ended March 31, 2000 from 27%
for the first three months of 1999. CORE expects that this percentage will
decrease in future periods as efficiencies are realized as a result of the
realignment efforts discussed above under "Current Developments."
Depreciation and amortization expenses increased $216,000 (25%) for the three
months ended March 31, 2000 as compared to the first quarter of 1999. The
increase is primarily related to the development of internal use software and
purchases of network hardware that CORE has invested in over the past year.
FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES
On August 31, 1998, CORE entered into a revolving line of credit agreement (the
"Initial Credit Agreement") with Fleet National Bank ("Fleet"). Under the terms
of the Amended and Restated Credit Agreement dated February 28, 2000 (the
"Restated Credit Agreement"), CORE may borrow up to specified amounts at either
(i) the prime base rate plus 0.50%, or (ii) the London Interbank Offered Rate
("LIBOR") plus 3.50%. The original maximum credit availability under the
Restated Credit Agreement of $18,500,000 is subject to mandatory commitment
reductions each quarter (beginning on March 31, 2000) in amounts ranging from
$875,000 to $1,250,000. At March 31, 2000, the maximum credit availability was
$17,625,000. The Restated Credit Agreement expires on June 30, 2004.
At March 31, 2000 and December 31, 1999, CORE had outstanding borrowings of
$15,500,000 and $14,300,000, respectively, under the Restated Credit Agreement
which were all tied to the prime base lending rate (9.00% at March 31, 2000)
plus the applicable margin.
The Restated Credit Agreement is secured by substantially all of CORE's assets
and requires CORE to meet certain financial covenants, including minimum ratios
for interest, debt service and fixed charge coverage along with minimum net
worth levels. Additionally, the Restated Credit Agreement prohibits the payment
of dividends by CORE without the Bank's written consent. CORE was either in
compliance with or had obtained a waiver from Fleet for all the financial
covenants contained in the Restated Credit Agreement at March 31, 2000. A
waiver, which extends through June 16, 2000, was granted with respect to the
unsatisfied minimum net worth requirement as of March 31, 2000.
CORE has entered into an interest rate protection arrangement with Fleet that
limits CORE's exposure to significant increases in the base lending rate. The
arrangement places an effective cap on the prime base lending rate at 9.75% (or
LIBOR at 6.75%) for a substantial portion of the outstanding borrowings over the
life of the Restated Credit Agreement.
12
<PAGE>
In connection with the Initial Credit Agreement and related amendments, CORE has
issued two Warrants to purchase shares of its Common Stock to Fleet. The
original Warrant granted on August 31, 1998 entitles the holder to purchase up
to 156,322 shares of CORE's Common Stock (subject to certain adjustments), at an
exercise price of $6.92 per share. The original Warrant is exercisable beginning
August 31, 1999 and expires August 31, 2003. The second Warrant granted in
connection with the Third Amendment to the Initial Credit Agreement, dated April
28, 1999, entitles the holder to purchase up to 187,000 shares of CORE's Common
Stock (subject to certain adjustments), at an exercise price of $12.00 per
share. The second Warrant was exercisable upon the April 1999 execution of the
Third Amendment and expires June 30, 2004.
CORE typically uses all available cash and cash equivalents to reduce the
revolving line of credit. As of March 31, 2000 and December 31, 1999, CORE's
cash and cash equivalents balances were zero. For the three months ended
March 31, 2000, cash used by operating activities was $832,000. Although net
income for the period amounted to $367,000, an increase in accounts and
unbilled receivables of $1,555,000 was the primary reason for the use of cash
during the first quarter of 2000. The increase in receivables was mainly
attributable to the timing of cash collections on recurring services provided
to certain major customers. CORE's investing activities used $1,237,000 of
cash mostly to fund additions to property and equipment (including software
development) of $1,173,000. CORE's financing activities provided $2,068,000
of cash for this period, mainly from net borrowings under the Fleet line of
credit and proceeds from the issuance of common stock upon exercise of stock
options.
CORE leases its facilities and certain computer and office equipment. During
March 2000, CORE entered into a long-term facilities lease of approximately
25,000 sq. feet for its operations in Boston, Massachusetts. The lease is
tentatively scheduled to begin on June 1, 2000 and expires after 124 months.
Future lease commitments as of March 31, 2000, which relate substantially to
space rental, for the nine months ended December 31, 2000 and the year ended
December 31, 2001 are approximately $2.3 million and $2.8 million,
respectively. All obligations held by CORE under lease commitments expire on
various dates through September 2010 and total approximately $16.1 million as
of March 31, 2000.
CORE has net operating loss carryforwards for federal and state income tax
purposes of approximately $2.0 million and $9.9 million, respectively, as of
March 31, 2000, which can be used to reduce future obligations for federal
and state income taxes. The amount of net operating loss carryforwards that
can be utilized in any future year are limited due to "equity structure
shifts" in 1995 involving "5% shareholders" (as these terms are defined in
Section 382 of the Internal Revenue Code), which resulted in a more than 50
percentage point change in ownership. The utilization of the net operating
loss carryforwards may be subject to further limitation provided by the
Internal Revenue Code of 1986 and similar state provisions.
CORE plans to finance its operations and working capital requirements
primarily with future earnings from operations. As of May 8, 2000,
outstanding borrowings under the Credit Agreement were $14,800,000. To the
extent that working capital needs exceed currently available working capital,
CORE has the flexibility to borrow additional funds up to the maximum
commitment available under the Credit Agreement. CORE believes that this
available financing, along with future earnings from operations and other
sources of available funds will be sufficient to meet its liquidity and
funding requirements through at least the year 2001.
IMPACT OF YEAR 2000 SYSTEM COMPLIANCE
CORE is not aware of any material problems resulting from the Year 2000 date
change, either with its internal systems or the products and services of
third parties. CORE will continue to monitor its mission critical computer
applications and those of its suppliers and vendors throughout the year 2000
to ensure that any latent Year 2000 matters that may arise are addressed
promptly.
13
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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE OF MARKET RISK.
CORE entered into a revolving line of credit agreement with Fleet National Bank
("Fleet") on August 31, 1998 (the "Initial Credit Agreement"). The Initial
Credit Agreement, as later amended and restated, was entered into for purposes
other than trading. The outstanding borrowings under the Amended and Restated
Credit Agreement bear interest at variable rates, which reset as prevailing
market conditions change. CORE also entered into a derivative financial
instrument in January 1999 for purposes of managing its interest rate exposure.
See "Notes to Consolidated Condensed Financial Statements (Unaudited)," Note 2
contained elsewhere within this report for additional information.
PART II
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
On March 31, 2000, CORE issued 248,703 shares of Common Stock to Transcend in
connection with the Interim Award issued by an arbitrator. These shares of
Common Stock were not registered under the Securities Act at the time of
issuance, in reliance upon the exception contained in Section 4(2) of the
Securities Act for transactions by an issuer not involving any public offering.
See "Notes to Consolidated Condensed Financial Statements (Unaudited)," Note 3
contained elsewhere within this report for additional information.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits. The following exhibits are included:
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------
10.1* Amended and Restated Credit Agreement, dated as of February 28, 2000
between CORE, INC. and Fleet National Bank (excluding Schedules and
Exhibits).
10.2* Agreement and Amendment to Capital Stock Purchase Agreement,
effective as of April 1, 2000, between CORE, INC., Disability
Reinsurance Management Services, Inc. and Michael D. Lachance, James
T. Fallon, Lisa O. Hansen, David C. Mitchell and David K. Rich.
10.3* Amendment Number 1 to Employment Agreement, dated as of January 1,
2000, by and between Disability Reinsurance Management Services, Inc.
and Michael D. Lachance.
10.4* Amendment Number 1 to Employment Agreement, dated as of January 1,
2000, by and between Disability Reinsurance Management Services, Inc.
and James T. Fallon.
10.5* Amendment Number 1 to Employment Agreement, dated as of January 1,
2000, by and between Disability Reinsurance Management Services, Inc.
and Lisa O. Hansen.
27.1* Financial Data Schedule
- ------------------------------------
* Filed herewith
(b) REPORTS ON FORM 8-K
CORE did not file any reports on Form 8-K during the three months ended March
31, 2000.
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<PAGE>
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.
CORE, INC.
Dated: May 12, 2000 By: /s/ WILLIAM E. NIXON
-------------------------------------------
William E. Nixon
Chief Financial Officer, Executive
Vice President and Treasurer
(Duly authorized officer and Principal
Financial Officer)
15
<PAGE>
EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
CORE, INC.,
THE BANKS AND OTHER FINANCIAL
INSTITUTIONS FROM TIME TO TIME PARTY HERETO
AND
FLEET NATIONAL BANK, AS AGENT
DATED AS OF AUGUST 31, 1998
AND
AMENDED AND RESTATED AS OF FEBRUARY 28, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS................................................6
Section 1.1. Definitions............................................................6
Section 1.2. Accounting Terms......................................................16
Section 1.3. Rounding..............................................................17
Section 1.4. Exhibits and Schedules................................................17
Section 1.5. References to "Borrower and its Subsidiaries".........................17
Section 1.6. Miscellaneous Terms...................................................17
ARTICLE 2. THE CREDIT..................................................................17
Section 2.1. The Revolving Loans...................................................17
Section 2.2. The Revolving Notes...................................................18
Section 2.3. Procedure for Borrowing...............................................18
Section 2.4. Termination or Optional Reduction of Commitments......................19
Section 2.5. Mandatory Reduction of Commitment.....................................19
Section 2.6. Conversion or Continuation of Revolving Loans.........................20
Section 2.7. Optional Prepayments..................................................21
Section 2.8. Interest on the Revolving Loans.......................................22
Section 2.9. Fees..................................................................22
Section 2.10. Pro Rata Treatment and Payments Generally.............................23
Section 2.11. Capital Adequacy......................................................23
Section 2.12. Increased Costs.......................................................24
Section 2.13. Illegality............................................................24
Section 2.14. Payments to be Free of Deductions.....................................25
Section 2.15. Computations..........................................................26
Section 2.17. Sharing of Payments, Etc..............................................26
Section 2.18. Non-Receipt of Funds by the Agent.....................................26
ARTICLE 3. CONDITIONS PRECEDENT........................................................27
Section 3.1. Documentary Conditions Precedent......................................27
Section 3.2. Additional Conditions Precedent to Each Loan..........................30
Section 3.3. Deemed Representations................................................30
ARTICLE 4. REPRESENTATIONS AND WARRANTIES..............................................30
Section 4.1. Incorporation, Good Standing and Due Qualification....................30
Section 4.2. Corporate Power and Authority; No Conflicts...........................31
Section 4.3. Legally Enforceable Agreements........................................31
Section 4.4. Litigation............................................................31
Section 4.5. Financial Statements..................................................31
Section 4.6. Ownership and Liens...................................................32
Section 4.7. Taxes.................................................................33
Section 4.8. ERISA.................................................................33
Section 4.9. Subsidiaries and Ownership of Stock...................................33
Section 4.10. Credit Arrangements...................................................33
Section 4.11. Operation of Business.................................................34
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Section 4.12. No Default on Outstanding Judgments or Orders.........................34
Section 4.13. No Defaults on Other Agreements.......................................34
Section 4.14. Governmental Regulation...............................................34
Section 4.15. Consents and Approvals................................................34
Section 4.16. Partnerships..........................................................35
Section 4.17. Environmental Protection..............................................35
Section 4.18. Copyrights, Patents, Trademarks, Etc..................................35
Section 4.19. Compliance with Laws..................................................35
Section 4.20. Events of Default.....................................................36
Section 4.21. No Adverse Change.....................................................36
Section 4.22. Use of Proceeds.......................................................36
Section 4.23. Location of Books and Records.........................................36
Section 4.24. Security Documents....................................................36
Section 4.25. Solvency..............................................................37
Section 4.26 Year 2000 Compatibility...............................................37
Section 4.27 Capitalization........................................................38
Section 4.28 True and Complete Disclosure..........................................38
ARTICLE 5. AFFIRMATIVE COVENANTS.......................................................39
Section 5.1. Maintenance of Existence..............................................39
Section 5.2. Conduct of Business...................................................39
Section 5.3. Maintenance of Properties.............................................39
Section 5.4. Maintenance of Records................................................39
Section 5.5. Maintenance of Insurance..............................................39
Section 5.6. Compliance with Laws..................................................39
Section 5.7. Right of Inspection...................................................39
Section 5.8. Reporting Requirements................................................40
(a) Annual GAAP Statements................................................40
(b) Quarterly GAAP Statements.............................................40
(c) Monthly Accounts Receivable Aging Report and Financial Statements.....41
(d) Actual and Projected Quarterly Capital Expenditures...................41
(e) Annual Forecasts......................................................41
(f) Management Letters....................................................41
(g) Stockholder Communications and SEC Filings............................42
(h) Notice of Litigation..................................................42
(i) Notices of Default....................................................42
(j) Other Filings.........................................................42
(k) Quarterly Investment Reports..........................................42
(l) Additional Information................................................42
(m) Report of Customer Financings.........................................43
Section 5.9. Certificates..........................................................43
(a) Officers'Certificate..................................................43
(b) Accountant's Certificate..............................................43
Section 5.10. Further Assurances....................................................43
Section 5.11. Compliance with Agreements............................................44
Section 5.12. Use of Proceeds.......................................................44
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Section 5.13. Payment of Obligations................................................44
Section 5.14. Interest Rate Protection..............................................44
ARTICLE 6. NEGATIVE COVENANTS..........................................................44
Section 6.1. Debt..................................................................44
Section 6.2. Guaranties, Etc.......................................................44
Section 6.3. Liens.................................................................45
Section 6.4. Investments...........................................................45
Section 6.5. Mergers and Consolidations and Acquisitions of Assets.................46
Section 6.6. Sale of Assets........................................................46
Section 6.7. Stock of Subsidiaries, Etc............................................46
Section 6.8. Transactions with Affiliates..........................................46
Section 6.9. Capital Expenditures..................................................46
Section 6.10. Minimum Consolidated GAAP Net Worth...................................47
Section 6.11. Minimum Interest Coverage.............................................47
Section 6.12. Minimum Debt Service Coverage.........................................47
Section 6.13. Minimum Fixed Charge Coverage.........................................47
Section 6.14. Distributions.........................................................47
Section 6.15. No Limit on Upstream Payments by Subsidiaries.........................47
Section 6.16. Earnings..............................................................47
Section 6.17. Limitation on Negative Pledges........................................48
Section 6.18. Inconsistent Agreements...............................................48
ARTICLE 7. EVENTS OF DEFAULT...........................................................48
Section 7.1. Events of Default.....................................................48
Section 7.2. Remedies..............................................................50
ARTICLE 8. THE AGENT...................................................................50
Section 8.1. Authorization and Action..............................................50
Section 8.2. Exculpatory Provisions; Agent's Reliance, Etc.........................51
Section 8.3. Notice of Default.....................................................51
Section 8.4. Fleet and Affiliates..................................................52
Section 8.5. Credit Decision.......................................................52
Section 8.6. Indemnification.......................................................52
Section 8.7. Successor Agent.......................................................52
Section 8.8. Application of this Article to the Borrower...........................53
ARTICLE 9. MISCELLANEOUS...............................................................53
Section 9.1 Amendments and Waivers................................................53
Section 9.2. Usury.................................................................53
Section 9.3. Expenses; Indemnities.................................................54
Section 9.4. Term; Survival........................................................55
Section 9.5. Assignment; Participations............................................55
Section 9.6. Notices...............................................................57
Section 9.7. Setoff................................................................58
Section 9.8. Jurisdiction; Immunities..............................................58
Section 9.9. Table of Contents; Headings...........................................58
Section 9.10. Severability..........................................................59
Section 9.11. Counterparts..........................................................59
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Section 9.12. Integration...........................................................59
Section 9.13. Governing Law.........................................................59
Section 9.14. Confidentiality.......................................................59
Section 9.15. Authorization of Third Parties to Deliver Opinions, Etc...............59
Section 9.17. Replacement Revolving Note............................................60
Section 9.16. Borrower's Waivers....................................................60
Section 9.17. Limitation of Liability...............................................60
</TABLE>
Schedule 1.1 Commitments and Lending Offices
Schedule 3.1 UCC and Trademark Filings
Schedule 4.4 Litigation
Schedule 4.6 Liens
Schedule 4.9 Subsidiaries
Schedule 4.10 Credit Arrangements
Schedule 4.15 Consents and Approvals
Schedule 4.16 Partnerships
Schedule 4.18 Intellectual Property
Schedule 4.24 UCC Financing Statements
Exhibit A Revolving Note
Exhibit B-1 Notice of Borrowing
Exhibit B-2 Notice of Continuation or Conversion
Exhibit C Officer's Certificate
Exhibit D Form of Opinion of Counsel to Borrower
Exhibit E Form of Acceptance and Assignment
Exhibit F Form of Amended and Restated CORE Pledge Agreement
Exhibit G Form of Amended and Restated CORE Security Agreement
Exhibit H Form of Amended and Restated Subsidiary Security Agreement
Exhibit I Form of Amended and Restated Subsidiary Guaranty
Exhibit J Form of Amended and Restated Trademark Security Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 31, 1998 and
amended and restated as of February 28, 2000 by and among CORE, INC., a
Massachusetts corporation (the "Borrower"), FLEET NATIONAL BANK ("Fleet", and
together with any banks or financial institutions from time to time party to
this Agreement, the "`Banks") and Fleet National Bank, as agent for the Banks
(when acting in such capacity and not as one of the Banks, the "Agent").
Fleet and the Borrower entered into a Credit Agreement dated as of
August 31, 1998, which Credit Agreement was amended as of December 31, 1998, as
of February 19, 1999 and as of April 27, 1999 (as in effect immediately prior to
the Amendment Effective Date defined below, the "Existing Credit Agreement").
Fleet wishes to assign a portion of its Commitment under the Existing
Credit Agreement, together with a pro-rata portion of the Revolving Loans
outstanding under the Existing Credit Agreement on the Amendment Effective Date,
to Union Bank of California, and the Borrower is agreeable to such assignment on
the terms and conditions hereof.
Accordingly, the parties hereto agree to amend and restate the Existing
Credit Agreement so that, as amended and restated, it provides in its entirety
as follows:
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS.
Section 1.1. DEFINITIONS. As used in this Agreement, the following
terms have the following meanings (terms defined in the singular to have a
correlative meaning when used in the plural and vice versa):
"Acquisition" means the acquisition effected on the Closing Date by the
Borrower of 100% of the capital stock of DRMS.
"Acquisition Agreement" means the agreement setting forth the terms and
conditions of the Acquisition.
"Acquisition Pro-Formas" means financial projections, prepared by the
Borrower on a GAAP basis, showing the consolidated and consolidating balance
sheets and statements of operations of the Borrower and its Subsidiaries after
giving effect to the Acquisition.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise), PROVIDED THAT, in any
event: (i) any Person which owns directly or indirectly 20% or more of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation or 20% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner
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of such other Person) will be deemed to control such corporation or other
Person; and (ii) each director and officer of the Borrower shall be deemed to be
an Affiliate of the Borrower.
"Agreement" means this Amended and Restated Credit Agreement, as
further amended or supplemented from time to time. References to Articles,
Sections, Exhibits, Schedules and the like refer to the Articles, Sections,
Exhibits, Schedules and the like of this Agreement unless otherwise indicated.
"Amendment Effective Date" means the date on which all of the
conditions set forth in Section 3.1 shall have been satisfied or waived by the
Banks and the Agent.
"Applicable Interest Rate" means for any Revolving Loan, the Base Rate,
or Eurodollar Rate for such Revolving Loan, plus in each case the Applicable
Margin.
"Applicable Margin" means, with respect to Base Rate Loans, .50 % and,
with respect to Eurodollar Rate Loans, 3.50%.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Bank and an assignee of such Bank, and accepted by the Agent, in
substantially the form of Exhibit E.
"Base Rate" means, for any Interest Period or any other period, a
fluctuating interest rate per annum as shall be in effect from time to time,
which rate per annum shall at all times be equal to the higher of (a) the
Federal Funds Rate plus one-half (1/2) of one percent (1%), or (b) the variable
rate of interest publicly designated by the Agent, from time to time, as the
Agent's base rate or prime rate. The Base Rate is a reference rate and does not
necessarily represent the lowest or best rate charged to any customer. The
interest rate of each Base Rate Loan shall change on the date of any change in
the Base Rate without notice or demand of any kind.
"Base Rate Loan" means a Revolving Loan which bears interest at the
Base Rate, plus the Applicable Margin.
"Borrowing" means a borrowing consisting of a Revolving Loan from the
Banks under this Agreement.
"Business Day" means any day (other than a Saturday, Sunday or legal
holiday) on which commercial banks are not authorized or required to close in
Massachusetts or California, except that with respect to Borrowings, notices,
determinations and payments with respect to Eurodollar Rate Loans, such day
shall be a "Business Day" only if it is also a day for trading by and between
banks in the London interbank Eurodollar market.
"Capital Expenditures" means, for any period, the Dollar amount of
gross expenditures (including the principal portion of rental payments in
respect of Capital Lease Obligations) made for fixed assets (including without
limitation expenditures for software development), real property, plant and
equipment, and all renewals, improvements and replacements thereto (but not
repairs thereof) incurred during such period, all as determined in accordance
with GAAP.
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"Capital Lease" means any lease which has been or should be capitalized
on the books of the lessee in accordance with GAAP.
"Capital Lease Obligation" means the obligation of the lessee under a
Capital Lease. The amount of a Capital Lease Obligation at any date is the
amount at which the lessee's liability under the related Capital Lease would be
required to be shown on its balance sheet at such date in accordance with GAAP.
"Closing Date" means August 31, 1998.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Bank, the commitment of such
Bank to make Revolving Loans hereunder as set forth in SCHEDULE 1.1, as the same
may be reduced from time to time pursuant to Sections 2.4 and 2.5.
"Commitment Period" means the period from and including the date hereof
to but not including the Revolving Loan Termination Date or such earlier date as
the Commitment of each Bank shall terminate as provided herein.
"Consolidated GAAP Net Worth" means, with respect to any Person, the
sum of (a) the capital stock and additional paid-in capital of such Person and
its Subsidiaries on a consolidated basis, plus (without duplication) (b) the
amount of retained earnings (or, in the case of a deficit, minus the deficit),
minus (c) treasury stock, plus or minus (d) any other account which is
customarily added or deducted in determining stockholders' equity, all of which
shall be determined on a consolidated basis in accordance with GAAP.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.6 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 2.6 hereof of Base Rate Loans into Eurodollar Rate Loans or
of Eurodollar Rate Loans into Base Rate Loans.
"CORE Pledge Agreement" means the Amended and Restated CORE Pledge
Agreement, in the form of EXHIBIT F hereto, duly executed by the Borrower in
favor of the Agent for the benefit of the Agent and the ratable benefit of the
Banks, as the same may be amended, supplemented, restated or otherwise modified
and in effect from time to time.
"CORE Security Agreement" means the Amended and Restated CORE Security
Agreement, in the form of EXHIBIT G hereto, duly executed by the Borrower to the
Agent for the benefit of the Agent and the ratable benefit of the Banks, as the
same may be amended, supplemented, restated or otherwise modified and in effect
from time to time.
"Debt" means, with respect to any Person: (a) indebtedness of such
Person for borrowed money; (b) indebtedness for the deferred purchase price of
Property or services (except trade
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payables in the ordinary course of business); (c) Unfunded Vested Liabilities of
such Person (if such Person is not the Borrower, determined in a manner
analogous to that of determining Unfunded Vested Liabilities of the Borrower);
(d) the face amount of any outstanding letters of credit issued for the account
of such Person; (e) obligations arising under acceptance facilities; (f)
guaranties, endorsements (other than for collection in the ordinary course of
business) and other contingent obligations to purchase or to provide funds for
payment of the obligations of another Person, to supply funds to invest in any
Person to cause such Person to maintain a minimum working capital or net worth
or otherwise assure the creditors of such Person against loss; (g) obligations
secured by any Lien on Property of such Person; (h) Capital Lease Obligations;
and (i) redeemable preferred stock of such Person.
"Debt Service Coverage Ratio" at the end of any fiscal quarter means
the ratio of (A) the consolidated EBITDA of the Borrower and its Subsidiaries
for the immediately preceding four fiscal quarters (ending on such date) to (B)
the sum of (i) total Interest Expense of the Borrower and its Subsidiaries on a
consolidated basis for the immediately succeeding four fiscal quarters
(beginning on such date), plus (ii) scheduled reductions of the Commitment for
the immediately succeeding four fiscal quarters (beginning on such date). For
purposes of clause (B)(i) above, Interest Expense shall be calculated on the
assumption that, at the Borrower's election, either Base Rate Loans or
Eurodollar Rate Loans having an Interest Period of six (6) months for the full
amount of the Commitment will be outstanding for the succeeding four fiscal
quarters and that the Base Rate or Eurodollar Rate, as the case may be, in
effect on such date will remain in effect during such period.
"Default" means any event which with the giving of notice or lapse of
time, or both, would become an Event of Default.
"Default Rate" means a rate per annum equal at all times to the lesser
of 2% per annum above the Applicable Interest Rate in effect from time to time
or the highest rate permitted by law.
"Distributions" means (a) dividends or other distributions in respect
of capital stock of a Person (except distributions in such stock) and (b) the
redemption or acquisition of such stock or of warrants, rights or other options
to purchase such stock (except when solely in exchange for such stock) unless
made, contemporaneously, from the net proceeds of a sale of such stock; in
either case valued at the greater of book or fair market value of the Property
being dividend, distributed or otherwise transferred as a Distribution.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"DRMS" means Disability Reinsurance Management Services, Inc., a
Delaware corporation.
"EBITDA" means, with respect to any Person, for any period, an amount
equal to Net Income for such period, plus (without duplication to the extent
deducted in determining Net Income) the sum of (a) Interest Expense for such
period, plus (b) income tax expense deducted in determining Net Income for such
period, plus (c) depreciation for such period, plus (d)
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amortization for such period, all of which shall be determined in accordance
with GAAP; PROVIDED, HOWEVER, for purposes of testing the covenants in Sections
6.11, 6.12 and 6.13, the following shall be added to Net Income with respect to
the fiscal quarter ended June 30, 1998: write-off of goodwill in the amount of
$4,085,449, arbitration costs in the amount of $736,009 and certain
non-recurring charges in the amount of $114,277 and PROVIDED FURTHER, for
purposes of testing the covenants in Sections 6.11, 6.12, 6.13 and 6.16, the
amount of any Restructuring Charges not exceeding $1,500,000 in the aggregate
for such quarters shall be added to Net Income with respect to the fiscal
quarters ended September 30, 1998 and December 31, 1998.
"Equity Rights" shall mean, with respect to any Person, any outstanding
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including any rules and regulations promulgated
thereunder.
"ERISA Affiliate" means any corporation or trade or business which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Borrower or is under common control (within
the meaning of Section 414(c) of the Code) with the Borrower.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Rate Loan comprising part of the same Borrowing, the rate per annum (rounded
upward to the nearest whole multiple of 1/32 of 1% per annum) publicly
designated by the Agent as its Eurodollar Rate and determined on the basis of
the offered rates for deposits in Dollars for a period of time comparable to
such Interest Period which appears on the Telerate page 3750 as of 11:00 a.m.
(London time) on the day that is two (2) London Banking Days preceding the first
day of such Eurodollar Rate Loan; PROVIDED, HOWEVER, if the rate described above
does not appear on the Telerate System on any applicable interest determination
date, the Eurodollar Rate shall be the rate (rounded upwards as described above,
if necessary) for deposits in Dollars for a period substantially equal to the
Interest Period on the Reuters Page "LIBO" (or such other page as may replace
the LIBO Page on that service for the purpose of displaying such rates), as of
11:00 a.m. (London Time), on the day that is two (2) London Banking Days prior
to the beginning of such Interest Period. "Banking Day" shall mean, in respect
of any city, any date on which commercial banks are open for business in that
city.
If both the Telerate and Reuters system are unavailable, then the rate
for the date will be determined on the basis of the offered rates for deposits
in Dollars for a period of time comparable to such Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. (London time), on the day that is two (2) London Banking Days
preceding the first day of such Eurodollar Rate Loans as selected by the Agent.
The principal London office of each of the four major London banks will be
requested to provide a quotation of its Dollar deposit offered rate. If at least
two such quotations are provided, the
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rate for that date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in Dollars to leading
European banks for a period of time comparable to such Interest Period offered
by major banks in New York City at approximately 11:00 a.m. (New York City time)
on the day that is two (2) London Banking Days preceding the first day of such
Interest Period. In the event that the Agent is unable to obtain any such
quotation as provided above, it will be deemed that a Eurodollar Rate cannot be
determined.
In the event that the Board of Governors of the Federal Reserve System
shall impose a Reserve Percentage with respect to "LIBOR" deposits, then for any
period during which such Reserve Percentage shall apply, the Eurodollar Rate
shall be equal to the amount determined above divided by an amount equal to 1
minus the Reserve Percentage. "Reserve Percentage" shall mean the maximum
aggregate reserve requirement (including all basic, supplemental, marginal and
other reserves) which is imposed on member banks of the Federal Reserve System
against "Euro-currency Liabilities" as defined in Regulation D.
"Eurodollar Rate Loan" means a Revolving Loan which bears interest at
the Eurodollar Rate, plus the Applicable Margin.
"Event of Default" has the meaning given such term in Section 7.1.
"Federal Funds Rate" means, for any Interest Period or any other
period, 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 the day for
which such rate is to be determined 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
such rate is not so published for any Business Day, the Federal Funds Rate for
such Business Day shall be the average rate charged to the Agent on such
Business Day on such transactions as determined by the Agent.
"Financing Statements" means the UCC-1 and UCC-3 financing statements
signed by the Borrower or its Subsidiaries in connection with the security
interests granted to the Agent pursuant to the Security Documents.
"Fixed Charge Coverage Ratio" at the end of any fiscal quarter means
the ratio of (a) the sum of (i) the consolidated EBITDA of the Borrower and all
Subsidiaries for the immediately preceding four fiscal quarters (ending on such
date) and (ii) rental payments (other than the interest component of rental
payments under Capital Leases included in Interest Expense) under all leases of
the Borrower and its Subsidiaries for the immediately preceding four fiscal
quarters (ending on such date) to (b) total Fixed Charges of the Borrower and
its Subsidiaries on a consolidated basis for the immediately succeeding four
fiscal quarters (beginning on such date). For purposes of clause (b) above, the
Interest Expense component of Fixed Charges shall be calculated on the
assumption that, at the Borrower's election, either Base Rate Loans or
Eurodollar Rate Loans having an Interest Period of six (6) months for the full
amount of the
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<PAGE>
Commitment will be outstanding for the succeeding four fiscal quarters and that
the Base Rate or Eurodollar Rate, as the case may be, in effect on such date
will remain in effect during such period.
"Fixed Charges" means, for any period, the sum of (a) the Interest
Expense, plus (b) rental payments (other than the interest component of rental
payments under Capital Leases included in Interest Expense) under all leases of
the Borrower and its Subsidiaries, plus (c) the quotient of (i) the principal
payments of Debt owed by the Borrower during such period divided by (ii) 1 minus
the federal income tax rate applicable to the Borrower and its Subsidiaries for
such period.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied on a basis consistent
with those used in the preparation of the financial statements referred to in
Section 4.5 (except for changes concurred in by the Borrower's independent
public accountants).
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Interest Coverage Ratio" at the end of any fiscal quarter means the
ratio of (A) the consolidated EBITDA of the Borrower and its Subsidiaries for
the immediately preceding four fiscal quarters (ending on such date) to (B)
total Interest Expense of the Borrower and its Subsidiaries on a consolidated
basis for the immediately succeeding four fiscal quarters (beginning on such
date). For purposes of clause (B) above, Interest Expense shall be calculated on
the assumption that, at the Borrower's election, either Base Rate Loans or
Eurodollar Rate Loans having an Interest Period of six (6) months for the full
amount of the Commitment will be outstanding for the succeeding four fiscal
quarters and that the Base Rate or Eurodollar Rate, as the case may be, in
effect on such date will remain in effect during such period.
"Interest Expense" means, with respect to any Person for any period,
the consolidated interest expense, including the interest portion of rental
payments under Capital Leases, as determined on a consolidated basis in
accordance with GAAP.
"Interest Period" means (a) for each Eurodollar Rate Loan comprising
part of the same Borrowing, the period commencing on the date of such Eurodollar
Rate Loan or on the last day of the preceding Interest Period, as the case may
be, and ending on the numerically corresponding day of the last month of the
period selected by the Borrower pursuant to the following provisions: the
duration of each Eurodollar Rate Loan Interest Period shall be one (1), three
(3) or six (6) months, in each case as the Borrower may select, and (b) for each
Base Rate Loan comprising part of the same Borrowing, the period commencing on
the date of such Base Rate Loan or on the last day of the preceding Interest
Period, as the case may be, and ending on the ninetieth (90th) day after the
date of such Base Rate Loan or the last day of the preceding Interest Period, as
the case may be; PROVIDED, HOWEVER, that:
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(i) all Eurodollar Rate Loans or comprising part of the same
Borrowing shall be of the same duration;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day;
PROVIDED that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
(iii) each Interest Period that commences on the last Business
Day of a calendar month (or on any day for which there is no numerically
corresponding day in the applicable subsequent calendar month) shall end on the
last Business Day of the applicable subsequent month; and
(iv) no Interest Period for any Revolving Loan shall extend
beyond the Revolving Loan Termination Date.
"Investment" means, with respect to any Person, any investment by or of
such Person, whether by means of purchase or other acquisition of capital stock
or other Securities of any other Person or by means of loan, advance (other than
advances to employees for moving and travel expenses, drawing accounts and
similar expenditures made in the ordinary course of business), capital
contribution or other debt or equity participation or interest, in any other
Person, including any partnership, joint venture and membership interests of
such Person in any other Person.
"Lending Office" means, for each Bank and for each type of Revolving
Loan, the lending office of such Bank (or of an affiliate of such Bank)
designated as such for such type of Revolving Loan on SCHEDULE 1.1 or such other
office of such Bank (or of an affiliate of such Bank) as such Bank may from time
to time specify to the Borrower as the office through which its Revolving Loans
of such type are to be made and maintained.
"Lien" means any lien (statutory or otherwise), security interest,
mortgage, deed of trust, priority, pledge, charge, conditional sale, title
retention agreement, financing lease or other encumbrance or similar right of
others, or any agreement to give any of the foregoing.
"Loan Documents" mean, collectively, this Agreement, the Revolving
Notes, the CORE Pledge Agreement, the CORE Security Agreement, the Subsidiary
Guaranty, the Subsidiary Security Agreement, the Trademark Security Agreement
the Warrant and the Registration Rights Agreement and any other documents,
agreements and instruments now or hereafter executed in connection herewith or
contemplated hereby.
"Materially Adverse Effect" means any material adverse effect upon the
business, assets, liabilities, financial condition, results of operations or, as
far as the Borrower can reasonably foresee, prospects of the Borrower and its
Subsidiaries taken as a whole, or upon the ability of the Borrower or any of its
Subsidiaries to perform in all material respects its obligations under this
Agreement or any other Loan Document.
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<PAGE>
"Multiemployer Plan" means a Plan defined as such in Section 3(37) of
ERISA to which contributions have been made by the Borrower or any ERISA
Affiliate and which is covered by Title IV of ERISA.
"Net Income" means, with respect to any Person for any period, the
aggregate amount of net income of such Person, after taxes, for such period, as
determined in accordance with GAAP.
"Notice of Borrowing" means the certificate, in the form of EXHIBIT B-1
hereto, to be delivered by the Borrower to the Agent pursuant to Sections 2.3
and 3.2(d) and shall include any accompanying certifications or documents.
"Notice of Continuation or Conversion" means the certificate, in the
form of EXHIBIT B-2, to be delivered by the Borrower to the Agent pursuant to
Section 2.6.
"Obligations" means all indebtedness, obligations and liabilities of
the Borrower and its Subsidiaries, if any, to the Banks, individually or
collectively, under this Agreement and the other Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by the Borrower or any
ERISA Affiliate and which is covered by ERISA.
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Code for which there is no applicable statutory
or regulatory exemption (including a class exemption or an individual
exemption).
"Property" means any interest of any kind in property or assets,
whether real, personal or mixed, and whether tangible or intangible.
"Registration Rights Agreement" means the Registration Rights
Agreement, in the form of EXHIBIT L to the Existing Credit Agreement, duly
executed by the Borrower.
"Regulations D, X and U" means Regulations D, X and U of the Board of
Governors of the Federal Reserve System, as amended or supplemented from time to
time.
"Regulatory Change" means any change after the date of this Agreement
in United States federal, state or foreign laws or regulations (including
Regulation D and the laws or regulations which designate any assessment rate
relating to certificates of deposit or otherwise) or the adoption or making
after such date of any orders, rulings, interpretations, directives, guidelines
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or requests applying to a class of banks including the Banks, of or under any
United States federal, state, or foreign laws or regulations (whether or not
having the force of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA as to which events the PBGC by regulation has not waived the
requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days of the occurrence of such event, PROVIDED that a failure to meet the
minimum funding standard of Section 412 of the Code or Section 302 of ERISA
shall be a Reportable Event regardless of any waivers given under Section 412(d)
of the Code.
"Required Banks" means, at any time, Banks holding sixty-six and
two-thirds percent (66 2/3%) of the aggregate amount of the Commitments, or, if
the Commitments have been terminated, Banks holding sixty-six and two-thirds
percent (66 2/3%) of the aggregate principal amount of the Revolving Loans
outstanding.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organization or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Restructuring Charges" means any extraordinary expenses, as determined
in accordance with GAAP, incurred by the Borrower or a Subsidiary in the third
or fourth quarter of 1998 as a result of the disposition of Integrated
Behavioral Health, Cost Review Services, Inc. and TCM Services, Inc.
"Revolving Loans" means any loan made by the Banks pursuant to Section
2.1. Each Revolving Loan shall be a Base Rate Loan or a Eurodollar Rate Loan.
"Revolving Loan Termination Date" means June 30, 2004.
"Revolving Note" means a promissory note of the Borrower, in the form
of EXHIBIT A hereto, evidencing the Revolving Loans made by a Bank hereunder,
including any partial or total amendment, restatement, replacement, extension or
substitution of or for such Revolving Note.
"Securities" means any capital stock, share, voting trust certificate,
bonds, debentures, notes or other evidences of indebtedness, limited partnership
interests, or any warrant, option or other right to purchase or acquire any of
the foregoing.
"Security Documents" means the CORE Pledge Agreement, the CORE Security
Agreement, the Subsidiary Guaranty, the Subsidiary Security Agreement and the
Trademark Security Agreement.
"Senior Officer" means the (a) chief executive officer, (b) chief
financial officer, or (c) president of the Person designated.
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<PAGE>
"Subsidiary" means with respect to any Person, any corporation,
partnership, limited liability company or joint venture whether now existing or
hereafter organized or acquired: (i) in the case of a corporation, of which a
majority of the securities having ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) are at the time owned by such Person and/or one or
more Subsidiaries of such Person or (ii) in the case of a partnership, limited
liability company or joint venture, in which such Person is a general partner or
joint venturer or of which a majority of the partnership, membership or other
ownership interests are at the time owned by such Person and/or one or more of
its Subsidiaries. Unless the context otherwise requires, references in this
Agreement to "Subsidiary" or "Subsidiaries" shall be deemed to be references to
a Subsidiary or Subsidiaries of the Borrower or of a Subsidiary of the Borrower.
"Subsidiary Guaranty" means the Amended and Restated Subsidiary
Guaranty, in the form of EXHIBIT I hereto, duly executed by each Subsidiary to
the Agent for the benefit of the Agent and the ratable benefit of the Banks, as
the same may be amended, supplemented, restated or otherwise modified and in
effect from time to time.
"Subsidiary Security Agreement" means the Amended and Restated
Subsidiary Security Agreement, in the form of EXHIBIT H hereto, duly executed by
each Subsidiary to the Agent for the benefit of the Agent and the ratable
benefit of the Banks, as the same may be amended, supplemented, restated or
otherwise modified and in effect from time to time.
"Trademark Security Agreement" means the Amended and Restated Trademark
Security Agreement, in the form of EXHIBIT J hereto, duly executed by the
Borrower and Core Management, Inc., a California corporation, to the Agent for
the benefit of the Agent and the ratable benefit of the Banks, as the same may
be amended, supplemented, restated or otherwise modified and in effect from time
to time.
"Unfunded Vested Liabilities" means, with respect to any Plan, the
amount (if any) by which the present value of all vested benefits under the Plan
exceeds the fair market value of all Plan assets allocable to such benefits, as
determined on the most recent valuation date of the Plan and in accordance with
the provisions of ERISA for calculating the potential liability of the Borrower
or any ERISA Affiliate to the PBGC or the Plan under Title IV of ERISA.
"Warrant" means each of (x) the Warrant, in the form of EXHIBIT J to
the Existing Credit Agreement, pursuant to which the Borrower granted to Fleet
warrants to purchase shares of the Common Stock of the Borrower equal to 2% of
the Borrower's outstanding Common Stock, and (y) the Warrant, in the form of
EXHIBIT B to the Third Amendment to the Existing Credit Agreement dated as of
April 27, 1999, pursuant to which the Borrower granted to Fleet warrants to
purchase 187,000 shares of Common Stock of the Borrower.
Section 1.2. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, applied on a
consistent basis, and all financial data required to be delivered hereunder
shall be prepared in accordance with GAAP, applied on a consistent basis; EXCEPT
as otherwise specifically prescribed herein. In the event that GAAP changes
during the term of this Agreement such that the financial covenants contained in
Article
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6 would then be calculated in a different manner or with different components
(a) the Borrower and the Banks agree to enter into good faith negotiations to
amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating the Borrower's financial condition to
substantially the same criteria as were effective prior to such change in GAAP
and (b) the Borrower shall be deemed to be in compliance with the financial
covenants contained in such Article during the sixty (60) days following any
such change in GAAP if and to the extent that the Borrower would have been in
compliance therewith under GAAP as in effect immediately prior to such change;
PROVIDED, HOWEVER, if an amendment shall not be agreed upon within sixty (60)
days or such longer period as shall be agreed to by the Banks, for purposes of
determining compliance with such covenants until such amendment shall be agreed
upon, such terms shall be construed in accordance with GAAP as in effect on the
Amendment Effective Date applied on a basis consistent with the application used
in preparing the financial statements for the year ended December 31, 1998.
Section 1.3. ROUNDING. Any financial ratios required to be maintained
by the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
Section 1.4. EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
Section 1.5. REFERENCES TO "BORROWER AND ITS SUBSIDIARIES". Any
reference herein to "Borrower and its Subsidiaries" or the like shall refer
solely to the Borrower during such times, if any, as the Borrower shall have no
Subsidiaries.
Section 1.6. MISCELLANEOUS TERMS. The term "or" is disjunctive; the
term "and" is conjunctive. The term "shall" is mandatory, the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
ARTICLE 2. THE CREDIT.
Section 2.1. THE REVOLVING LOANS. Subject to the terms and conditions
of this Agreement, each Bank severally agrees to make revolving loans to the
Borrower (hereinafter collectively referred to as the "Revolving Loan" or
"Revolving Loans") from time to time from and including the date hereof until
the earlier of the Revolving Loan Termination Date or the termination of the
Commitment of such Bank, up to, but not exceeding in the aggregate principal
amount at any one time outstanding, the amount of its Commitment. Each Borrowing
under this Section 2.1 of (i) a Base Rate Loan shall be in the principal amount
of not less than $250,000 or any greater amount which is an integral multiple
thereof or (ii) a Eurodollar Rate Loan shall be in the principal amount of not
less than $250,000 or any greater amount which is an integral
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multiple thereof. During the Commitment Period and subject to the foregoing
limitations, the Borrower may borrow, repay and reborrow Revolving Loans, all in
accordance with the terms and conditions of this Agreement.
Section 2.2. THE REVOLVING NOTES.
(b) The Revolving Loans of each Bank shall be evidenced by a
single promissory note in favor of each Bank in the form of EXHIBIT A, dated the
date of this Agreement, and duly completed and executed by the Borrower.
(c) Each Bank is authorized to record and, prior to any
transfer of any Revolving Note, endorse on a schedule forming a part thereof
appropriate notations evidencing the date, the type, the amount and the maturity
of each Revolving Loan made by it which is evidenced by such Revolving Note and
the date and amount of each payment of principal made by the Borrower with
respect thereto; PROVIDED, that failure to make any such endorsement or notation
shall not affect the Obligations of the Borrower hereunder or under any
Revolving Note. Each Bank is hereby irrevocably authorized by the Borrower to so
endorse its Revolving Note and to attach to and make a part of its Revolving
Note a continuation of any such schedule as and when required. Each Bank may, at
its option, record and maintain such information in its internal records rather
than on such schedule.
Section 2.3. PROCEDURE FOR BORROWING.
(a) The Borrower shall give the Agent a Notice of Borrowing, in the
form of EXHIBIT B-1 hereto, prior to 11:00 a.m. (California time), on the date
at least one (1) Business Day before a Borrowing of a Base Rate Loan or at least
three (3) Business Days before a Borrowing of a Eurodollar Rate Loan specifying.
(i) the date of such Borrowing, which shall be a Business Day,
(ii) the principal amount of such Borrowing,
(iii) whether the Revolving Loan comprising such Borrowing is
to be a Base Rate Loan or a Eurodollar Rate Loan, and
(iv) if a Eurodollar Rate Loan, the Interest Period with
respect to such Borrowing.
The Agent will promptly notify each Bank of its receipt of any Notice
of Borrowing and the amount of the Borrowing thereunder.
(b) No Notice of Borrowing shall be revocable by the Borrower.
(c) Not later than 2:00 p.m. (Massachusetts time) on the date
of each Borrowing, each Bank shall (except as provided in subsection (e) of this
Section) make available its pro rata share of such Borrowing, in Dollars and in
federal or other funds immediately
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available in Boston, Massachusetts, to the Agent at its address set forth on the
signature pages hereof or at such other address as the Agent may hereafter
designate by notice to the Borrower and the Banks and, unless the Agent
determines that any applicable condition specified in Article 3 has not been
satisfied (in which case the Agent will give prompt notice to the Borrower and
the Banks thereof), the Agent will promptly make the funds so received from the
Banks available to the Borrower at the Bank's aforesaid address.
(d) There shall be no more than four (4) Interest Periods
relating to Eurodollar Rate Loans outstanding at any time.
(e) If any Bank makes a new Revolving Loan hereunder on a day
on which the Borrower is to repay an outstanding Revolving Loan from such Bank,
such Bank shall apply the proceeds of the new Revolving Loan to make such
repayment and only an amount equal to the excess (if any) of the amount being
borrowed over the amount being repaid shall be made available by such Bank to
the Agent as provided in subsection (c) of this Section, or remitted to the
Agent as provided in Section 2.10, as the case may be.
Section 2.4. TERMINATION OR OPTIONAL REDUCTION OF COMMITMENTS. The
Commitments shall terminate on the Revolving Loan Termination Date and any
Revolving Loans then outstanding (together with accrued interest thereon) shall
be due and payable on such date. No termination of the Commitments hereunder
shall relieve the Borrower of any of its outstanding Obligations to the Banks
hereunder or otherwise. The Borrower shall have the right, upon prior written
notice of at least five (5) Business Days to the Agent, to terminate or, from
time to time, reduce the Commitments, PROVIDED that (i) any such reduction of
the Commitments shall be accompanied by the prepayment of the Revolving Notes,
together with accrued interest thereon to the date of such prepayment and any
amount due pursuant to Section 2.7, to the extent, if any, that the aggregate
unpaid principal amount thereof then outstanding exceeds the amount of the
Commitments as then reduced and (ii) any such termination of the Commitments
shall be accompanied by prepayment in full of the unpaid principal amount of the
Revolving Notes together with accrued interest thereon to the date of such
prepayment and any amount due pursuant to Section 2.7 and all amounts owing
hereunder and under the Revolving Notes. Any such partial reduction of the
Commitments shall be in an aggregate principal amount of $250,000 or any whole
multiple thereof and shall reduce permanently and on a ratable basis the
Commitments then in effect hereunder. Upon receipt of any notice of optional
reduction of the Commitments from the Borrower, the Agent shall promptly give
notice thereof to each Bank.
Section 2.5. MANDATORY REDUCTION OF COMMITMENT.
(a) On each of the dates indicated below, commencing on March 31, 2000,
the aggregate Commitments of the Banks shall be reduced, on a ratable basis,
automatically in the following amounts:
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<TABLE>
<CAPTION>
Aggregate
Total Commitments
Mandatory Available
Date Reduction After Reduction
---- --------- ---------------
<S> <C> <C>
March 31, 2000 $875,000 $17,625,000
June 30, 2000 $875,000 $16,750,000
September 30, 2000 $875,000 $15,875,000
December 31,2000 $875,000 $15,000,000
March 31, 2001 $1,125,000 $13,875,000
June 30, 2001 $1,125,000 $12,750,000
September 30, 2001 $1,125,000 $11,625,000
December 31, 2001 $1,125,000 $10,500,000
March 31, 2002 $1,000,000 $9,500,000
June 30, 2002 $1,000,000 $8,500,000
September 30, 2002 $1,000,000 $7,500,000
December 31, 2002 $1,000,000 $6,500,000
March 31, 2003 $1,000,000 $5,500,000
June 30, 2003 $1,000,000 $4,500,000
September 30,2003 $1,000,000 $3,500,000
December 31,2003 $1,000,000 $2,500,000
March 31, 2004 $1,250,000 $1,250,000
June 30, 2004 $1,250,000 $0
</TABLE>
In addition, if the Borrower raises additional capital through an
equity sale, the Banks shall have the option to require the Borrower to apply up
to 50% of the net sale proceeds from such sale to the reduction of their
Commitments. The proceeds will be applied on the date of the sale to the
scheduled Commitment reductions in inverse order.
(b) On the effective date of each reduction of the Commitments of the
Banks pursuant to Section 2.5(a), the Borrower shall repay such principal amount
(together with accrued interest thereon and any amount due pursuant to Section
2.7(b)) of outstanding Revolving Loans, if any, as may be necessary so that
after such repayment the aggregate unpaid principal amount of the Revolving
Loans owed to the Banks does not exceed the aggregate Commitments of the Banks
as then reduced.
Section 2.6. CONVERSION OR CONTINUATION OF REVOLVING LOANS. The
Borrower shall have the right to Convert Revolving Loans of one type into
Revolving Loans of another type or to Continue Eurodollar Rate Loans, at any
time or from time to time, PROVIDED that: (a) the Borrower shall give the Agent
a Notice of Continuation or Conversion in the form of EXHIBIT B-2, as
applicable, prior to 11:00 a.m. (California time) on the date at least three (3)
Business Days prior to the last day of the Interest Period of any Revolving Loan
to be Converted into or Continued as a Eurodollar Rate Loan; (b) Eurodollar Rate
Loans may be Converted or Continued only on the last day of an Interest Period
for such Revolving Loans; (c) each Conversion or Continuation of a Eurodollar
Rate Loan shall be in an amount at least equal to $250,000 or in any greater
amount which is an integral multiple thereof; (d) no Event of Default shall have
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occurred and be continuing at the time of any Conversion to a Eurodollar Rate
Loan or Continuation of any such Eurodollar Rate Loan into a subsequent Interest
Period; (e) accrued interest on the Revolving Loan (or portion thereof) being
Converted or Continued shall be paid by the Borrower at the time of Continuation
or Conversion; and (f) each request for a Continuation as or Conversion to a
Eurodollar Rate Loan which fails to state an applicable Interest Period shall be
deemed to be a request for an Interest Period of one (1) month.
Notwithstanding anything to the contrary herein contained, if, upon the
expiration of any Interest Period applicable to any Eurodollar Rate Loan, the
Borrower shall fail to give a Notice of Continuation or Conversion as set forth
in this Section 2.6, the Borrower shall be deemed to have given a Notice of
Continuation of such Eurodollar Rate Loan in principal amount equal to the
outstanding principal amount of such Eurodollar Rate Loan and having an Interest
Period of one (1) month.
Section 2.7. OPTIONAL PREPAYMENTS.
(a) The Borrower may, upon at least one (1) Business Day's notice to
the Agent, prepay the Base Rate Loans, without premium or penalty, in whole at
any time or from time to time in part by paying the principal amount being
prepaid together with accrued interest thereon to the date of prepayment.
(b) The Borrower may, upon at least three (3) Business Days' notice to
the Agent, prepay the Eurodollar Rate Loans, in whole at any time or from time
to time in part, by paying the principal amount being prepaid together with (i)
accrued interest thereon to the date of prepayment and (ii) if such prepayment
occurs on a date that is not the last day of the Interest Period applicable to
such Eurodollar Rate Loan, any amounts as shall be sufficient (in the reasonable
opinion of the Banks) to compensate each Bank for any reasonable losses, costs
or expenses (excluding any losses of anticipated profit), as certified by such
Bank (such certification setting forth the basis for such compensation), which
such Bank may reasonably incur as a result of such prepayment, including without
limitation, any loss, cost or expense incurred by reason of funds liquidation or
reemployment of deposits or other funds acquired by such Bank to fund or
maintain such Eurodollar Rate Loan and any administrative costs, expenses or
charges of such Bank as a result thereof.
Without limiting the effect of the preceding sentence, compensation
shall include a "yield maintenance fee" in an amount computed as follows: The
current rate for United States Treasury securities (bills on a discounted basis
shall be converted to a bond equivalent) with a maturity date closest to the
last day of the Interest Period of the Revolving Loan as to which the prepayment
is made, shall be subtracted from the Eurodollar Rate for such Interest Period
in effect at the time of prepayment. If the result is zero or a negative number,
there shall be no yield maintenance fee. If the result is a positive number,
then the resulting percentage shall be multiplied by the amount of the principal
balance being prepaid. The resulting amount shall be divided by 360 and
multiplied by the number of days remaining in the Interest Period as to which
the prepayment is made. Said amount shall be reduced to present value calculated
by using the above referenced United States Treasury securities rate and the
number of days remaining in the
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Interest Period as to which the prepayment is made. The resulting amount shall
be the yield maintenance fee due to the Agent upon payment of such Eurodollar
Rate Loan. If by reason of an Event of Default, the Required Banks elect to
declare the Revolving Notes to be immediately due and payable, then any yield
maintenance fee with respect to a Eurodollar Rate Loan shall become due and
payable in the same manner as though the Borrower had exercised such right of
prepayment.
(c) Upon receipt of any notice of prepayment from the Borrower pursuant
to Section 2.7(a) or 2.7(b), the Agent shall promptly give notice thereof to
each Bank. If any such notice is given by the Borrower, the amount specified in
such notice shall be due and payable on the date specified therein.
Section 2.8. INTEREST ON THE REVOLVING LOANS.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Base Rate Loan is made
until it becomes due, at a rate per annum equal to the Base Rate for such day,
plus the Applicable Margin. Interest shall be payable on the last day of the
Interest Period applicable thereto. Such interest shall accrue from and
including the date of such Borrowing to but excluding the date of any repayment
thereof and shall be computed on the basis of a fraction, the numerator of which
is the actual number of days elapsed from the date of Borrowing and the
denominator of which is three hundred sixty (360).
(b) Each Eurodollar Rate Loan shall bear interest on the unpaid
principal amount thereof, for each day from the date such Eurodollar Rate Loan
is made until it becomes due, at a rate per annum equal to the Eurodollar Rate
for the relevant Interest Period, plus the Applicable Margin. Interest shall be
payable on the last day of the Interest Period applicable thereto; PROVIDED,
that if such Interest Period is longer than ninety (90) days, interest shall be
payable every ninety (90) days and on the last day of such Interest Period. Such
interest shall accrue from and including the date of such Borrowing to but
excluding the date of any repayment thereof and shall be computed on the basis
of a fraction, the numerator of which is the actual number of days elapsed from
the date of Borrowing and the denominator of which is three hundred sixty (360).
(c) Overdue principal of, and to the extent permitted by law, interest
on each Revolving Loan shall bear interest for each day until paid at a rate per
annum equal to the Default Rate.
Section 2.9. FEES. The Borrower shall pay to the Agent for the ratable
benefit of the Banks a nonrefundable stand-by commitment fee for the Commitment
Period, payable in arrears at the rate of one-half (1/2) of one percent (1%) per
annum, on the average daily unused portion of each Bank's Commitment with
respect to the Revolving Loans, which stand-by commitment fee shall be payable
quarterly on the first Business Day of January, April, July, and October of each
year beginning April 1, 2000. Such fee shall be computed on the basis of a year
of three hundred sixty (360) days and actual days elapsed.
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Section 2.10. PRO RATA TREATMENT AND PAYMENTS GENERALLY. Each payment
by the Borrower on account of the principal of and interest on the Revolving
Loans, and any reduction of the Commitments of the Banks, shall be payable to
the Banks on a pro rata basis. All payments under this Agreement shall be made
in Dollars in immediately available funds not later than 1:00 p.m.
(Massachusetts time) on the due date (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day) to the Agent at its address set forth on the signature pages hereof or at
such other address as it may hereafter designate by notice to the Borrower and
the Banks for the account of the Lending Office of each Bank specified by such
Bank on SCHEDULE 1.1 HERETO. The Agent shall distribute such payments to the
Banks promptly upon receipt in like funds as received. If such payment is not
made available by the Agent to any Bank within one (i) Business Day of the
Agent's receipt of payment from the Borrower, such Bank shall be entitled to
recover such amount from the Agent with interest thereon at a rate per annum
equal to the Base Rate. The Borrower shall, at the time of making each payment
under this Agreement, specify to the Agent the principal or other amount payable
by the Borrower under this Agreement to which such payment is to be applied (and
in the event that it fails to so specify, or if a Default or Event of Default
has occurred and is continuing, the Agent may apply such payment as it may elect
in its sole discretion). The Borrower authorizes the Agent to charge any account
maintained by the Borrower at the Agent to satisfy the Borrower's payment
obligations hereunder. If any account is so charged on the due date, the payment
shall be deemed to have been timely made. If the due date of any payment under
this Agreement would otherwise fall on a day which is not a Business Day, such
date shall be extended to the next succeeding Business Day and such extension of
time shall in such case be included in the computation of such payment; PROVIDED
that, if such extension would cause the last day of an Interest Period to occur
in the next following calendar month, the last day of such Interest Period shall
occur on the immediately preceding Business Day.
Section 2.11. CAPITAL ADEQUACY. If after the date hereof, either (i)
the introduction of, or any change in, or in the interpretation or enforcement
of, any law, regulation, order, ruling, interpretation, directive, guideline or
request or (ii) the compliance with any order, ruling, interpretation,
directive, guideline or request from any central bank or other governmental
authority (whether or not having the force of law) issued, announced, published,
promulgated or made after the date hereof (including, in any event, any law,
regulation, order, ruling, interpretation, directive, guideline or request
contemplated by the report dated July, 1988 entitled "International Convergence
of Capital Measurement and Capital Standards" issued by the Basle Committee on
Banking Regulation and Supervisory Practices) affects or would affect the amount
of capital required or expected to be maintained by any Bank or any corporation
controlling such Bank and such Bank reasonably determines that the amount of
such required or expected capital is increased by or based upon the existence of
such Bank's Revolving Loans hereunder or such Bank's commitment to lend
hereunder, then, upon demand by such Bank, through the Agent, the Borrower shall
be liable for, and shall pay to such Bank, within thirty (30) days following
demand from time to time by the Bank, through the Agent, additional amounts
sufficient to compensate such Bank in the light of such circumstances for the
effects of such law, regulation,
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order, ruling, interpretation, directive, guideline or request, to the extent
that such Bank reasonably determines such increase in capital to be allocable to
the existence of such Bank's Revolving Loans hereunder or of such Bank's
commitment to lend hereunder. A certificate substantiating such amounts and
identifying the event giving rise thereto, which shall be submitted to the
Borrower by such Bank, through the Agent, at the time of its demand for such
compensation, shall be conclusive, absent demonstrable error. Each Bank shall
promptly notify the Borrower, through the Agent, of any event of which it has
knowledge occurring after the date of this Agreement which will entitle such
Bank to compensation pursuant to this Section, and each Bank shall take any
reasonable action available to it consistent with its internal policy and legal
and regulatory restrictions (including the designation of a different Lending
Office, if any) that will avoid the need for, or reduce the amount of, such
compensation and will not in the reasonable judgment of such Bank be otherwise
disadvantageous to such Bank.
Section 2.12. INCREASED COSTS. (a) If after the date hereof, due to
either (i) the introduction of or any change in or in the interpretation or
enforcement of, any law, regulation, order, ruling, directive, guideline or
request, or (ii) the compliance with any order, ruling, directive, guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) issued, announced, published, promulgated or made after
the date hereof, there shall be any increase in the cost to any Bank of agreeing
to make or making, funding or maintaining Eurodollar Rate Loans, then the
Borrower shall be liable for, and shall from time to time, within thirty (30)
days following a demand by such Bank, through the Agent, pay to such Bank for
the account of such Bank additional amounts sufficient to compensate such Bank
for such increased cost; PROVIDED, HOWEVER, that before making any such demand,
each Bank agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Lending Office
if the making of such a designation would allow such Bank or its Lending Office
to continue to perform its obligations to make Eurodollar Rate Loans or to
continue to fund or maintain Eurodollar Rate Loans and would not, in the
reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate substantiating the amount of such increased cost, which shall be
submitted to the Borrower by the Bank, through the Agent, at the time of its
demand for such compensation, shall be conclusive, absent demonstrable error.
(b) Upon notice by the relevant Bank, through the Agent, accompanied by
a certificate showing in reasonable detail the calculation of such amount, the
Borrower shall reimburse each Bank and shall hold each Bank harmless from any
loss or expense which the Banks may sustain or incur as a consequence of the
failure of the Borrower to (i) make a Borrowing hereunder after the Borrower has
given a Notice of Borrowing or (ii) make any optional prepayment after the
Borrower has provided notice thereof under Section 2.7 hereof.
Section 2.13. ILLEGALITY. (a) Notwithstanding any other provision of
this Agreement, if after the date hereof the introduction of, or any change in
or in the interpretation or enforcement of, any law, regulation, order, ruling,
directive, guideline or request shall make it unlawful, or any central bank or
other governmental authority shall assert that it is unlawful, for any Bank or
its Lending Office to perform its obligations hereunder to make Eurodollar Rate
Loans or to continue to fund or maintain Eurodollar Rate Loans hereunder, then,
on notice thereof by such
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Bank, through the Agent, to the Borrower, (i) the obligation of such Bank to
make Eurodollar Rate Loans shall terminate (and such Bank shall make all of its
Revolving Loans as Base Rate Loans notwithstanding any election by the Borrower
to have such Bank make Eurodollar Rate Loans) and (ii) if legally permissible,
at the end of the current Interest Period for such Eurodollar Rate Loans, and
otherwise five (5) Business Days after such notice and demand, all Eurodollar
Rate Loans of such Bank then outstanding will automatically convert into Base
Rate Loans; PROVIDED, HOWEVER, that before making any such demand, each Bank
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Lending Office if the
making of such a designation would allow such Bank or its Lending Office to
continue to perform its obligations to make Eurodollar Rate Loans and would not,
in the judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate describing such introduction or change in or in the interpretation
or enforcement of such law, regulation, order, ruling, directive, guideline or
request, which shall be submitted to the Borrower by such Bank, through the
Agent, at the time of its demand, shall be conclusive evidence of such
introduction, change, interpretation or enforcement, absent demonstrable error.
Each of the Banks and the Borrower agree to negotiate in good faith in order to
agree upon a mutually acceptable mechanism to provide that Eurodollar Rate Loans
made by any Bank as to which the foregoing conditions occur shall convert into
Base Rate Loans.
(b) Notwithstanding any other provision of this Agreement, if after the
date hereof the Agent determines that quotations of interest rates for the
relevant deposits referred to in the definition of "Eurodollar Rate" in Section
1.1 hereof are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for Eurodollar Rate
Loans and as a result the Agent ceases to make Eurodollar Rate Loans or
comparable loans generally available to other customers, then, on notice thereof
by the Agent to the Borrower, (i) the obligation of the Banks to make Eurodollar
Rate Loans shall terminate (and the Banks shall make all Revolving Loans as Base
Rate Loans notwithstanding any election by the Borrower to have the Banks make
Eurodollar Rate Loans). A certificate describing such event submitted to the
Borrower by the Agent shall be conclusive evidence of such event, absent
manifest error.
Section 2.14. PAYMENTS TO BE FREE OF DEDUCTIONS. All payments by the
Borrower under this Agreement shall be made without setoff or counterclaim and
free and clear of, and without deduction for, any taxes (other than any taxes
imposed on or measured by the gross income or profits of any Bank or applicable
Lending Office thereof), levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any country or any political subdivision thereof
or taxing or other authority therein unless the Borrower is compelled by law to
make such deduction or withholding. If any such obligation is imposed upon the
Borrower with respect to any amount payable by it hereunder, it will pay to
Agent, on the date on which such amount becomes due and payable hereunder and in
Dollars, such additional amount as shall be necessary to enable each Bank to
receive the same net amount which it would have received on such due date had no
such obligation been imposed upon the Borrower. If, at any time, any Bank, or
any permitted assignee of such Bank hereunder (an "Assignee"), is organized
under the laws of any jurisdiction other than the United States or any state or
other political subdivision thereof, such Bank or the Assignee shall deliver to
the Borrower, through the Agent, on the date it becomes a party to this
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Agreement, and at such other times as may be necessary in the determination of
the Borrower in its reasonable discretion, such certificates, documents or other
evidence, properly completed and duly executed by such Bank or the Assignee
(including, without limitation, Internal Revenue Service Form 1001 or Form 4224
or any other certificate or statement of exemption required by Treasury
Regulations Section 1.1441-4(a) or Section 1.1441-6(c) or any successor thereto)
to establish that such Bank or the Assignee is not subject to deduction or
withholding of United States Federal Income Tax under Section 1441 or 1442 of
the Internal Revenue Code or otherwise (or under any comparable provisions of
any successor statute) with respect to any payments to such Bank or the Assignee
of principal, interest, fees or other amounts payable hereunder. The Borrower
shall not be required to pay any additional amount to such Bank or any Assignee
under this Section 2.14 if such Bank or such Assignee shall have failed to
satisfy the requirements of the immediately preceding sentence; PROVIDED that if
any Bank or any Assignee shall have satisfied such requirements on the date it
became a party to this Agreement, nothing in this Section 2.14 shall relieve
Borrower of its obligation to pay any additional amounts pursuant to this
Section 2.14 in the event that, as a result of any change in applicable law,
such Bank or such Assignee is no longer properly entitled to deliver
certificates, documents or other evidence at a subsequent date establishing the
fact that such Bank or the Assignee is not subject to withholding as described
in the immediately preceding sentence.
Section 2.15. COMPUTATIONS. All computations of interest and like
payments hereunder on the Revolving Loans shall, in the absence of clearly
demonstrable error, be considered correct and binding on the Borrower and the
Banks, unless within thirty (30) Business Days after receipt of any notice by
the Agent of such outstanding amount, the Borrower or any Bank notifies the
Agent in writing to the contrary.
Section 2.16. SHARING OF PAYMENTS, ETC. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of the Revolving Loans made by it (other than
pursuant to Sections 2.11,.2.12, 2.13 or 2.14) in excess of its ratable share of
payments on account of outstanding Revolving Loans obtained by all the Banks,
such Bank shall forthwith purchase from the other Banks such participations in
the Revolving Loans made by them as shall be necessary to cause such Bank to
share the excess payment ratably with each of them; PROVIDED, HOWEVER, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Bank, such purchase from each Bank shall be rescinded and each such
Bank shall repay to the purchasing Bank the purchase price to the extent of such
recovery, together with an amount equal to such Bank's ratable share (according
to the proportion of (i) the amount of such Bank's required repayment to (ii)
the total amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total amount so
recovered. The Borrower agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.17 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of setoff) with
respect to such participation as fully as if such Bank were the direct creditor
of the Borrower in the amount of such participation.
Section 2.17. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Agent shall
have been notified in writing by a Bank prior to any date on which a Revolving
Loan is to be made, which
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notice shall be effective upon receipt, that such Bank does not intend to make
available to the Agent such Bank's pro rata share of the Revolving Loan
requested, the Agent may assume that such Bank has made such amount available to
the Agent on such date and Agent may, in its sole discretion (but shall not be
obligated to), make available to the Borrower a corresponding amount on such
date. If such corresponding amount is not in fact made available to the Agent by
such Bank, the Agent shall be entitled to recover such corresponding amount on
demand from such Bank together with interest thereon, for each day from the date
the Agent made such amount available to the Borrower until the date such amount
is repaid to the Agent, at a rate per annum equal to the Federal Funds Rate for
two days and thereafter at the Default Rate. If Such Bank does not pay such
corresponding amount forthwith upon the Agent's demand therefor, the Agent shall
promptly notify the Borrower and the Borrower shall immediately pay such
corresponding amount to the Agent provided, however, that in such event the
Borrower shall not have any obligation under Section 2.7(b) or Section 2.12(b)
to reimburse such Bank for any loss, cost or expense which such Bank may incur
as a result of such prepayment and such payment by the Borrower shall not be
deemed a failure to make a borrowing hereunder after the Borrower shall have
given a Notice of Borrowing. Nothing in this Section 2.18 shall be deemed to
relieve any Bank from its obligation to fulfill its Commitment hereunder or to
prejudice any rights that the Borrower may have against any Bank as a result of
any default by such Bank hereunder.
ARTICLE 3. CONDITIONS PRECEDENT.
Section 3.1. DOCUMENTARY CONDITIONS PRECEDENT. The effectiveness of the
amendment and restatement of the Existing Credit Agreement provided for hereby
is subject to the receipt by the Agent of the following documents, each of which
shall be satisfactory to the Agent and each Bank in form and substance:
(a) LOAN DOCUMENTS. The Agent shall have received (i) this Agreement,
with a counterpart for each Bank, executed and delivered by a duly authorized
officer of the Borrower; (ii) a Revolving Note for the account of each Bank,
completed, executed, and delivered by a duly authorized officer of the Borrower
and, with regard to Fleet, in exchange for the promissory note issued under the
Existing Credit Agreement; (iii) the CORE Pledge Agreement, executed and
delivered by a duly authorized officer of the Borrower; (iv) the CORE Security
Agreement, executed and delivered by a duly authorized officer of the Borrower;
(v) the Subsidiary Guarantee, executed and delivered by a duly authorized
officer of each Subsidiary; (vi) the Subsidiary Security Agreement, executed and
delivered by a duly authorized officer of each Subsidiary; and (vii) the
Trademark Security Agreement, executed and delivered by a duly authorized
officer of the Borrower and Core Management, Inc., a California corporation.
(b) PLEDGED STOCK; STOCK POWERS. The Agent shall have received (i)
certificates representing the stock pledged pursuant to the CORE Pledge
Agreement, together with an undated stock power executed in blank for each such
certificate and (ii) the Issuer's Consent attached to the CORE Pledge Agreement,
executed and delivered by a duly authorized officer of the relevant issuer.
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(c) UCC AND TRADEMARK FILINGS. All documents (including, without
limitation, financing statements) required to be filed in respect of the
Security Documents in order to create in favor of the Agent, for the benefit of
the Agent and the ratable benefit of the Banks, a perfected, first priority
security interest in the Collateral described therein with respect to which a
security interest may be perfected by filing under the Uniform Commercial Code
or the Lanham Act, as the case may be, shall have been properly completed and
signed for filing in each office listed on Schedule 3.1. The Agent shall have
received evidence that all necessary filing fees and all taxes or other expenses
related to such filings have been paid in full or otherwise provided for.
(d) CORPORATE PROCEEDINGS. The Agent shall have received, with a copy
for each Bank, a copy of the resolutions, in form and substance satisfactory to
the Agent, of the Board of Directors of the Borrower and each Subsidiary
authorizing (i) the execution, delivery and performance of the Loan Documents to
which it is a party, (ii) with respect to the Borrower, the grant of the Liens
pursuant to the Security Documents to which it is a party and (iii) with respect
to each Subsidiary, the grant of the Liens pursuant to the Security Documents to
which it is a party, in each case certified by the Secretary or an Assistant
Secretary of the Borrower or such Subsidiary at the Amendment Effective Date,
which certificate shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded and shall be in form and substance
satisfactory to the Agent.
(e) INCUMBENCY CERTIFICATES. The Agent shall have received, with a copy
for each Bank, a certificate, dated the Amendment Effective Date, of the
Secretary or an Assistant Secretary of the Borrower and each Subsidiary as to
the incumbency and signature of the officer or officers signing the Loan
Documents to which such Person is a party, together with evidence of the
incumbency of such Secretary or Assistant Secretary.
(f) CORPORATE DOCUMENTS. The Agent shall have received, with a copy for
each Bank, true and complete copies of the certificate of incorporation and
by-laws of the Borrower and each Subsidiary, certified at the Amendment
Effective Date as complete and correct copies thereof, by the Secretary or an
Assistant Secretary of the Borrower or each Subsidiary.
(g) GOOD STANDING CERTIFICATES. The Agent shall have received, with a
copy for each Bank, certificates dated as of a recent date from the Secretary of
State or other appropriate authority of such jurisdiction, evidencing the good
standing of the Borrower and each Subsidiary in its state of incorporation and
in each state where failure to obtain authority to do business as a foreign
corporation would have a Materially Adverse Effect.
(h) TAX GOOD STANDING CERTIFICATES. The Agent shall have received, with
a copy for each Bank, certificates dated as of a recent date from the
appropriate tax authority of such jurisdiction, evidencing the payment by the
Borrower and each Subsidiary of all taxes owed in its state of incorporation
and, if different, its principal place of business.
(i) FINANCIAL STATEMENTS. The Agent shall have received, with a copy
for each Bank, copies of the financial statements referred to in Section 4.5.
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(j) LIEN SEARCHES. The Agent shall have received the results of a
recent search by a Person satisfactory to the Agent of Uniform Commercial Code
and other filings which may have been filed with respect to the personal
property of the Borrower or any Subsidiaries in those locations of which the
Agent notifies the Borrower prior to the Amendment Effective Date.
(k) LITIGATION. No suit, action, investigation, inquiry or other
proceeding (including, without limitation, the enactment or promulgation of a
statute or rule) by or before any arbitrator or any Governmental Authority shall
be formally instituted or threatened and no preliminary or permanent injunction
or restraining order by a state or federal court shall have been entered or
threatened (i) in connection with any Loan Document or any of the transactions
contemplated hereby or thereby or (ii) which, in the reasonable opinion of the
Agent, could have a Materially Adverse Effect.
(l) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement, the Revolving Note and the other Loan Documents shall not
contravene, violate or conflict with, nor involve the Agent or any of the Banks
in any violation of, any Requirement of Law.
(m) CONSENTS, LICENSES AND APPROVALS. The Agent shall have received,
with a copy for each Bank, a certificate, dated the Amendment Effective Date,
executed by a duly authorized officer of the Borrower stating that all consents,
licenses, approvals, authorizations, notices and filings necessary or advisable
in connection with the financings contemplated by this Agreement, the continuing
operations of the Borrower and each Subsidiary, and the consummation of the
Acquisition have been obtained and are in full force and effect.
(n) INSURANCE. The Agent shall have received evidence satisfactory to
it that the Borrower and its Subsidiaries have in place insurance satisfying the
requirements of Section 5.5.
(o) REPRESENTATIONS AND WARRANTIES. The Agent shall have received a
certificate of a Senior Officer of the Borrower, dated the Amendment Effective
Date, certifying on behalf of the Borrower that (i) the representations and
warranties in Article 4 are true, complete and correct in all material respects
on such date as though made on and as of such date, (ii) no event has occurred
and is continuing which constitutes a Default or Event of Default, (iii) the
Borrower has performed and complied with all agreements and conditions contained
in this Agreement which are required to be performed or complied with by the
Borrower at or before the Amendment Effective Date, and (iv) there has been no
material adverse change in the financial condition, operations, Properties,
business, or as far as the Borrower can reasonably foresee, prospects of the
Borrower and its Subsidiaries, if any, taken as a whole from that reflected in
the most recent annual GAAP statements delivered by the Borrower pursuant to
Section 5.8(a) of the Existing Credit Agreement.
(p) COMPLIANCE WITH COVENANTS. The Agent shall have received, with a
copy for each Bank, certificate of a Senior Officer of the Borrower, dated the
Amendment Effective Date, substantially in the form of EXHIBIT C, which
certificate shall include information required to establish that the Borrower
will be in compliance with the covenants set forth in this Agreement, after
giving effect to the transactions contemplated herein.
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(q) LEGAL OPINIONS. The Agent shall have received a favorable opinion
of Rich, May, Bilodeau & Flaherty, P.C., counsel to the Borrower, dated the
Amendment Effective Date, in substantially the form set forth in EXHIBIT D.
(r) SATISFACTION OF AGENT. All corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated by
this Agreement shall be satisfactory in form and substance to the Agent and the
Agent shall have received any and all other information and documents with
respect to the Borrower which it may reasonably request.
Section 3.2. ADDITIONAL CONDITIONS PRECEDENT TO EACH LOAN. The
obligation of each Bank to make Revolving Loans pursuant to a Borrowing
(including any Borrowing on the Amendment Effective Date), unless waived by the
Required Banks, shall be subject to the further conditions precedent that on the
date of such Revolving Loan:
(a) each of the representations and warranties made by the Borrower and
each Subsidiary in or pursuant to the Loan Documents are true and correct in all
material respects on and as of the date of such Revolving Loan as though made on
and as of such date (or, if such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date);
(b) there does not exist any Default or Event of Default under this
Agreement;
(c) there has been no material adverse change in the financial
condition, operations, Properties, business or prospects of the Borrower and its
Subsidiaries, if any, taken as a whole, since the date of the last Borrowing
under this Agreement (or if no Borrowing has occurred, since the date of this
Agreement); and
(d) the Agent shall have received a Notice of Borrowing in the form of
EXHIBIT B-1, except to the extent otherwise provided in Section 2.6.
Section 3.3. DEEMED REPRESENTATIONS. Each Notice of Borrowing hereunder
and acceptance by the Borrower of the proceeds of such Borrowing shall
constitute a representation and warranty that the statements contained in
Section 3.2(a) are true and correct both on the date of such Notice of Borrowing
and, unless the Borrower otherwise notifies the Agent prior to such Borrowing,
as of the date of such Borrowing.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants the following:
Section 4.1. INCORPORATION, GOOD STANDING AND DUE QUALIFICATION. The
Borrower and each Subsidiary is duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, has the power
and authority to own its assets and to transact the business in which it is now
engaged, and is duly qualified as a foreign corporation and in good standing
under the laws of each other jurisdiction in which such qualification is
required, except where the failure to be so qualified would not have a
Materially Adverse Effect. The Borrower
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has all requisite power and authority to execute and deliver and to perform this
Agreement, the Revolving Notes and the other Loan Documents to which it is a
party, to borrow hereunder and to grant the Liens pursuant to the Security
Documents to which it is a party and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement and the
Revolving Notes, the grant of the Liens pursuant to the Security Documents to
which it is a party and the execution, delivery and performance of this
Agreement, the Revolving Notes and each other Loan Document to which it is a
party. Each Subsidiary has all requisite power and authority to execute and
deliver the Loan Documents to which it is a party and has taken all necessary
corporate action to authorize the grant of the Liens pursuant to the Security
Documents to which it is a party and the execution, delivery and performance of
each Loan Document to which it is a party.
Section 4.2. CORPORATE POWER AND AUTHORITY; NO CONFLICTS. The
execution, delivery and performance by the Borrower and each Subsidiary of each
of the Loan Documents to which it is a party have been duly authorized by all
necessary corporate action and do not and will not (a) require any consent or
approval of its shareholders; (b) violate any provisions of its articles of
incorporation or by-laws; (c) violate any provision of, or require any filing,
registration, consent or approval under, any law, rule, regulation (including
without limitation, Regulation U and X), order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to and
binding upon the Borrower or any Subsidiary; (d) result in a breach of or
constitute a default or require any consent under any indenture, mortgage or
loan or credit agreement or any other material agreement, lease or instrument to
which the Borrower or any Subsidiary is a party or by which it or its Properties
may be bound; or (e) result in, or require, the creation or imposition of any
Lien upon or with respect to any of the Properties now owned or hereafter
acquired by the Borrower or any Subsidiary, except as created by the Security
Documents.
Section 4.3. LEGALLY ENFORCEABLE AGREEMENTS. This Agreement and each
other Loan Document to which the Borrower or a Subsidiary is a party constitute
the legal, valid and binding obligations of the Borrower or such Subsidiary, as
the case may be, enforceable against the Borrower or such Subsidiary, as the
case may be, in accordance with their respective terms, except to the extent
that such enforcement may be limited by applicable bankruptcy, insolvency and
other similar laws affecting creditors' rights generally and by general
principles of equity.
Section 4.4. LITIGATION. Except as disclosed on Schedule 4.4, there are
no actions, suits or proceedings or investigations pending or, as far as the
Borrower can reasonably foresee, threatened against or affecting the Borrower or
any of its Subsidiaries, or any Property of any of them before any court,
governmental agency or arbitrator, which (i) relate to any past proposed or
consummated acquisition by the Borrower or any Subsidiary or (ii) if determined
adversely to the Borrower or any such Subsidiary would in any one case or in the
aggregate have a Materially Adverse Effect.
Section 4.5. FINANCIAL STATEMENTS.
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(a) The consolidated balance sheets of the Borrower and its
Subsidiaries as of December 31, 1996, December 31, 1997 and December 31, 1998
and the related consolidated statements of operations, stockholders' equity, and
cash flows of the Borrower and its Subsidiaries for the fiscal years then ended,
and the accompanying footnotes, together with the opinion thereon of Ernst &
Young LLP, independent certified public accountants, and the unaudited interim
consolidated balance sheet of the Borrower and its Subsidiaries as at June 30,
1999 and the related consolidated statements of operations, stockholders' equity
and cash flows for the six-month period then ended, copies of which have been
furnished to the Agent, fairly present the financial condition of the Borrower
and its Subsidiaries, taken as a whole, as at such dates and the results of the
operations of the Borrower and its Subsidiaries, taken as a whole, for the
periods covered by such statements, all in accordance with GAAP consistently
applied (subject to year-end accruals and audit adjustments and the absence of
footnotes in the case of the interim financial statements). There are no
liabilities of the Borrower or any Subsidiary, fixed or contingent, which are
material but are not reflected in the financial statements or in the notes
thereto, other than liabilities arising in the ordinary course of business since
June 30, 1999 and other than this Agreement and the other Loan Documents. No
written information, exhibit or report furnished by the Borrower to the Agent or
any Bank in connection with the negotiation of this Agreement contained any
material misstatement of fact or omitted to state any fact necessary to make the
statements contained therein not materially misleading. Since June 30, 1999 no
event or circumstance has occurred that would have a Materially Adverse Effect.
(b) The Acquisition Pro-Formas were prepared in good faith and were
based on reasonable assumptions.
(c) The balance sheets of DRMS as of December 31, 1996 and December 31,
1997 and the related consolidated statements of income, retained earnings and
cash flows of DRMS for the fiscal years then ended, and the accompanying
footnotes, the audited interim balance sheet of DRMS as at June 30, 1998 and the
related statement of income, retained earnings and cash flows for the six-month
period then ended and the unaudited interim balance sheet of DRMS as at July 31,
1998 and the related statement of income for the seven-month period then ended,
copies of which have been furnished to the Agent, fairly presented the financial
condition of DRMS as at such dates and the results of the operations of DRMS for
the periods covered by such statements, all in accordance with GAAP consistently
applied (subject to year-end accruals and audit adjustments and the absence of
footnotes in the case of the interim financial statements). There were no
liabilities of DRMS, fixed or contingent, which were material but were not
reflected in the financial statements or in the notes thereto, other than
liabilities arising in the ordinary course of business since June 30, 1998.
Section 4.6. OWNERSHIP AND LIENS. Each of the Borrower and its
Subsidiaries has good and valid title to, or valid leasehold interests in, its
material Properties and assets, real and personal, including the material
Properties and assets, and leasehold interests reflected in the financial
statements referred to in Section 4.5 (other than any Properties or assets
disposed of in the ordinary course of business of the Borrower and its
Subsidiaries), and none of the material Properties and assets owned by the
Borrower or its Subsidiaries, and none of its leasehold
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interests is subject to any Lien other than the Lien created by the Security
Documents, except as disclosed in such financial statements or in SCHEDULE 4.6,
or as may be permitted hereunder.
Section 4.7. TAXES. Each of the Borrower and its Subsidiaries has filed
all federal and state tax returns and all other material local tax returns
required to be filed, has paid all due and payable taxes, assessments and
governmental charges and levies, including interest and penalties, imposed upon
it or upon its Properties, and has made adequate provision for the payment of
such taxes, assessments and other charges accruing but not yet due and payable,
except with respect to taxes which are being contested in good faith by the
Borrower or its Subsidiaries and for which the Borrower or its Subsidiaries has
established and maintains adequate reserves for payment. To the best knowledge
of the Borrower, there is no tax assessment contemplated or proposed by any
governmental agency against the Borrower or any of its Subsidiaries that would
have a Materially Adverse Effect.
Section 4.8. ERISA. Each of the Borrower and its Subsidiaries is in
compliance in all material respects with all applicable provisions of ERISA.
Within the three-year period prior to the date hereof, neither a Reportable
Event nor a Prohibited Transaction has occurred with respect to any Plan; no
notice of intent to terminate a Plan has been filed nor has any Plan subject to
Title IV of ERISA been terminated; no circumstance exists which constitutes
grounds under Section 4042 of ERISA entitling the PBGC to institute proceedings
to terminate, or appoint a trustee to administer, a Plan, nor has the PBGC
instituted any such proceedings; neither the Borrower nor any ERISA Affiliate
has completely or partially withdrawn under Sections 4201 or 4204 of ERISA from
a Multiemployer Plan; each of the Borrower and its ERISA Affiliates has met its
minimum funding requirements under ERISA with respect to all of its Plans and
there are no Unfunded Vested Liabilities and neither the Borrower nor any ERISA
Affiliate has incurred any material liability to the PBGC under ERISA other than
for premium payments incurred in the normal course of operating the Plans.
Section 4.9. SUBSIDIARIES AND OWNERSHIP OF STOCK. SCHEDULE 4.9
correctly sets forth the names of all Subsidiaries of the Borrower as of the
date of this Agreement. All of the outstanding shares of capital stock, or all
of the units of equity interest, as the case may be, of each Subsidiary are
owned of record and beneficially by the Borrower or a Subsidiary of the
Borrower, as disclosed on said Schedule; there are no outstanding options,
warrants or other rights to purchase capital stock of any such Subsidiary; and
all such shares or equity interests so owned are duly authorized, validly
issued, fully paid, non-assessable, and were issued in compliance with all
applicable state and federal securities and other laws, and are free and clear
of all Liens, except for Liens arising under the CORE Pledge Agreement or for
such Liens which otherwise may be permitted hereunder.
Section 4.10. CREDIT ARRANGEMENTS. SCHEDULE 4.10 is a complete and
correct list of all credit agreements, indentures, guaranties, Capital Leases,
mortgages, and other instruments, agreements and arrangements presently in
effect providing for or relating to extensions of credit (including agreements
and arrangements for the issuance of letters of credit or for acceptance
financing) in respect of which the Borrower or any of its Subsidiaries is in any
manner directly or contingently obligated, other than trade payables in the
ordinary course of business of the
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Borrower and its Subsidiaries and the obligations under the Loan Documents; and
the maximum principal or face amounts of the credit in question, which are
outstanding and which can be outstanding, are therein set forth and are
correctly stated as of the date hereof, and all Liens given or agreed to be
given as security therefor are therein set forth and are correctly described or
indicated in such Schedule.
Section 4.11. OPERATION OF BUSINESS. Each of the Borrower and its
Subsidiaries possesses all licenses, permits and franchises, or rights thereto,
necessary to conduct its business as now conducted and as presently proposed to
be conducted, the absence of which would have a Materially Adverse Effect, and
neither the Borrower nor any of its Subsidiaries is in violation in any material
respect of any valid rights of others with respect to any of the foregoing.
Section 4.12. NO DEFAULT ON OUTSTANDING JUDGMENTS OR ORDERS. Each of
the Borrower and its Subsidiaries has satisfied all material judgments and
neither the Borrower nor any Subsidiary is in default with respect to any
judgment, writ, injunction, decree, rule or regulation of any court, arbitrator
or federal, state, municipal or other governmental authority, commission, board,
bureau, agency or instrumentality, domestic or foreign, which would, in any one
case or in the aggregate, have a Materially Adverse Effect.
Section 4.13. NO DEFAULTS ON OTHER AGREEMENTS. Neither the Borrower nor
any of its Subsidiaries is a party to any indenture, mortgage or loan or credit
agreement or any lease or other agreement or instrument or subject to any
charter or corporate restriction which would have a Materially Adverse Effect.
Neither the Borrower nor any of its Subsidiaries is in default in any material
respect in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument, including
prospectuses and investment policies, material to its business to which it is a
party.
Section 4.14. GOVERNMENTAL REGULATION. Neither the Borrower nor any of
its Subsidiaries is subject to regulation under the Investment Company Act of
1940, as amended, or any statute or regulation limiting its ability to incur
indebtedness for money borrowed as contemplated hereby.
Section 4.15. CONSENTS AND APPROVALS. No authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, or any other Person, is required to
authorize, or is required in connection with the execution, delivery and
performance by the Borrower or any of its Subsidiaries of, or the legality,
validity, binding effect or enforceability of, any Loan Document to which the
Borrower or a Subsidiary is a party, or the Acquisition Agreement, except the
consents, approvals or other similar actions listed on SCHEDULE 4.15 attached
hereto. SCHEDULE 4.15 describes those consents, approvals or other similar
actions which have been duly and properly obtained or which may have to be
obtained by the Bank in order to enforce its rights under this Agreement and the
other Loan Documents or the Acquisition Agreement. Except as disclosed on said
Schedule, such consents, approvals or other similar actions have been obtained
and have not been modified, amended, rescinded or revoked, and are in full force
and effect.
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Section 4.16. PARTNERSHIPS. Except as set forth in SCHEDULE 4.16,
neither the Borrower nor any of its Subsidiaries is a partner in any
partnership.
Section 4.17. ENVIRONMENTAL PROTECTION. Each of Borrower and its
Subsidiaries has obtained all permits, licenses and other authorizations which
are required under all environmental laws, including laws relating to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes into the
environment (including without limitation, ambient air, surface water, ground
water, or land), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes, except to the extent failure to have any such permit,
license or authorization would not reasonably be expected to have a Materially
Adverse Effect. Each of the Borrower and its Subsidiaries is in compliance with
all terms and conditions of the required permits, licenses and authorizations,
and is also in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in the environmental laws or contained in any regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply would
not reasonably be expected to have a Materially Adverse Effect. None of the
Properties of the Borrower or its Subsidiaries, either owned or leased, have
been included or, as far as the Borrower can reasonably foresee, proposed for
inclusion on the National Priorities List adopted pursuant to the Comprehensive
Environmental Response Compensation and Liability Act, as amended, or on any
similar list or inventory of sites requiring response or cleanup actions adopted
by any other federal, state or local agency.
Section 4.18. COPYRIGHTS, PATENTS, TRADEMARKS, ETC. Each of the
Borrower and its Subsidiaries owns or is duly licensed or otherwise entitled to
use all patents, trademarks, service marks, trade names, and copyrighted
materials ("Intellectual Property") which are used in the operation of its
business as presently conducted, except where the failure to be so licensed or
entitled would not have a Materially Adverse Effect. SCHEDULE 4.18 sets forth a
listing of all Intellectual Property that is material to the operation of the
business of the Borrower and its Subsidiaries as presently and proposed to be
conducted. No claim is pending or, as far as the Borrower can reasonably
foresee, threatened against the Borrower or any of its Subsidiaries contesting
the use of any such Intellectual Property, nor does the Borrower know of any
valid basis for any such claims, other than claims which, if adversely
determined, would not have a Materially Adverse Effect. To the best of the
Borrower's knowledge, the use of such Intellectual Property by the Borrower and
each Subsidiary does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not have a Materially
Adverse Effect.
Section 4.19. COMPLIANCE WITH LAWS. Neither the Borrower nor any of its
Subsidiaries is in violation of any laws, ordinances, rules or regulations,
applicable to it, of any federal, state or municipal governmental authorities,
instrumentalities or agencies, including without limitation, the United States
Occupational Safety and Health Act of 1970, as amended, except where such
violation would not have a Materially Adverse Effect. The Borrower and each
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Subsidiary is in compliance with all laws and other requirements applicable to
its business and has obtained all authorizations, consents, approvals, orders,
licenses, and permits from, and the Borrower and each Subsidiary has
accomplished all filings, registrations, and qualifications with, or obtained
exemptions from any of the foregoing from, any governmental or public agency
that are necessary for the transaction of its business, except where the failure
to be in such compliance, obtain such authorizations, consents, approvals,
orders, licenses, and permits, accomplish such filings, registrations, and
qualifications, or obtain such exemptions, would not have a Materially Adverse
Effect.
Section 4.20. EVENTS OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
Section 4.21. NO ADVERSE CHANGE. Since December 31, 1998, there has
occurred no event which has had or, as far as the Borrower can reasonably
foresee, could have a Materially Adverse Effect, except as is disclosed by the
Borrower's Quarterly Report on Form 10-Q for the quarterly period ended June 30,
1999.
Section 4.22. USE OF PROCEEDS. The Borrower shall use the proceeds of
any Revolving Loans made on or after the Amendment Effective Date for general
corporate purposes of the Borrower. No part of such proceeds shall be used to
purchase or carry, or to extend credit to others for the purpose of purchasing
or carrying, any "margin stock" (as such term is defined in Regulation U of the
Board of Governors of the Federal Reserve System) in violation of Regulations U
and X. Neither the Borrower nor any of its Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any such "margin stock".
Section 4.23. LOCATION OF BOOKS AND RECORDS. All of the books of
account and records of the Borrower and its Subsidiaries are located at the
Borrower's headquarters at 18881 Von Karman Avenue, Suite 1750, Irvine,
California 92612 except that the books of account and records of DRMS are
maintained at 178 Middle Street, Portland, Maine 04112-9546.
Section 4.24. SECURITY DOCUMENTS.
(a) The provisions of the CORE Pledge Agreement are effective to create
in favor of the Agent, for the benefit of the Agent and the ratable benefit of
the Banks, a legal, valid and enforceable security interest in all right, title
and interest of the pledgor in the Collateral as described therein. The CORE
Pledge Agreement constitutes a lien on and security interest in, all right,
title and interest of the pledgor in the Collateral described therein and upon
delivery to the Agent of the stock certificates evidencing such Collateral,
together with stock powers duly executed by the Borrower, the Agent will have a
fully perfected first priority security interest in such Collateral.
(b) The provisions of the CORE Security Agreement are effective to
create in favor of the Agent, for the benefit of the Agent and the ratable
benefit of the Banks, a legal, valid and enforceable security interest in all
right, title and interest of the Borrower in the Collateral as described
therein. Except where failure to file would not have a material effect on the
Agent's
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ability to realize effectively on the Collateral as described therein, as a
whole, the CORE Security Agreement constitutes a lien on and security interest
in, all right, title and interest of the Borrower in such Collateral and upon
filing of the Financing Statements in the locations set forth in the CORE
Security Agreement, the Agent will have a fully perfected first priority
security interest in such Collateral. No Uniform Commercial Code financing
statements have been filed by any other Person with respect to such Collateral
other than as may be filed in connection with this Agreement and except as
described in Schedule 4.24 hereto.
(c) The provisions of the Subsidiary Security Agreement are effective
to create in favor of the Agent, for the benefit of the Agent and the ratable
benefit of the Banks, a legal, valid and enforceable security interest in all
right, title and interests of each Subsidiary in the Collateral as described
therein. Except where failure to file would not have a material effect on the
Agent's ability to realize effectively on the Collateral described therein, as a
whole, the Subsidiary Security Agreement constitutes a lien on and security
interest in, all right, title and interest of each Subsidiary in such Collateral
and upon filing of the Financing Statements in the locations set forth in the
Subsidiary Security Agreement, the Agent will have a fully perfected first
priority security interest in such Collateral. No Uniform Commercial Code
financing statements have been filed by any other Person with respect to such
Collateral other than as may be filed in connection with this Agreement and
except as described in Schedule 4.24 hereto.
(d) The provisions of the Trademark Security Agreement are effective to
create in favor of the Agent, for the benefit of the Agent and the ratable
benefit of the Banks, a legal, valid and enforceable security interest in all
right, title and interest of the Borrower and its Subsidiaries in the Collateral
as described therein. Except where failure to file would not have a material
effect on the Bank's ability to realize effectively on the Collateral as
described therein, as a whole, the Trademark Security Agreement constitutes a
lien on and security interest in, all right, title and interest of the Borrower
and its Subsidiaries in such Collateral and upon the filing of the Financing
Statements and the Trademark Security Agreement in the locations set forth in
the Trademark Security Agreement, the Agent will have a fully perfected first
priority security interest in such Collateral. No Uniform Commercial Code
financing statements or filings with the United States Patent and Trademark
Office have been filed by any other Person with respect to such Collateral other
than as may be filed in connection with this Agreement and except as described
in Schedule 4.24 hereto.
Section 4.25. SOLVENCY. The Borrower and each Subsidiary is, and after
giving effect to the incurrence of all indebtedness and obligations being
incurred in connection herewith will be and will continue to be, Solvent.
Section 4.26 YEAR 2000 COMPATIBILITY. Substantially all programming
required to handle all material dates and date processing, in and following the
year 2000, of (i) the Borrower's and each of its Subsidiaries' computer systems
and (ii) equipment containing embedded microchips (including systems and
equipment supplied by others or with which the Borrower's or such Subsidiaries'
systems interface) and the testing of all such systems and equipment, as so
reprogrammed, was substantially completed on March 31, 1999. The expected cost
to the Borrower and its Subsidiaries of such reprogramming and testing and of
the
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reasonably foreseeable consequences of year 2000 to the Borrower and its
Subsidiaries (including, without limitation, reprogramming errors and the
failure of others' systems or equipment within the control of the Borrower or
its Subsidiaries) is not anticipated to result in a Default or have Material
Adverse Effect.
Section 4.27 CAPITALIZATION. The authorized capital stock of the
Borrower consists, as of December 31, 1999, of (i) an aggregate of 30,000,000
shares of common stock, par value $0.10 per share, of which 8,114,288 shares are
duly and validly issued and outstanding (and of which no shares are held in
treasury), each of which shares is fully paid and nonassessable and (ii) an
aggregate 500,000 shares of preferred stock, no par value, of which no shares
are issued and outstanding. As of the Amendment Effective Date, except for
Equity Rights arising under the Warrant, the Acquisition Agreement and the Asset
Purchase Agreement among the Borrower, TCM Services, Inc., Transcend Case
Management, Inc. and Transcend Services, Inc. dated March 17, 1998 and any stock
bonus awards, restricted stock awards, performance units, stock options or stock
appreciation rights heretofore issued thereunder, (x) there are no outstanding
Equity Rights with respect to the Borrower and (y) there are no outstanding
obligations of the Borrower or any of its Subsidiaries to repurchase, redeem, or
otherwise acquire any shares of capital stock of the Borrower nor are there any
outstanding obligations of the Borrower or any of its Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
the Borrower or any of its Subsidiaries.
Section 4.28 TRUE AND COMPLETE DISCLOSURE. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Borrower or any of its Subsidiaries to the Agent and the Banks in
connection with the negotiation, preparation or delivery of this Agreement and
the other Loan Documents or included herein or therein or delivered pursuant
hereto or thereto, when taken as a whole, do not, as of the Amendment Effective
Date, contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in light of
the circumstances under which they were made, not misleading. All written
information furnished after the Amendment Effective Date by the Borrower and its
Subsidiaries to the Agent and the Banks in connection with this Agreement and
the other Loan Documents and the transactions contemplated hereby and thereby
will be true, complete and accurate in every material respect, or (in the case
of projections) based on reasonable estimates, on the date as of which such
information is stated or certified. To the Borrower's knowledge, there is no
fact peculiar to the Borrower or any of its Subsidiaries (in contrast to
information of a general economic or industry nature) that could have a
Materially Adverse Effect that has not been disclosed herein, in the other Loan
Documents or in a report, financial statement, exhibit, schedule, disclosure
letter or other writing furnished to the Agent and the Banks for use in
connection with the transactions contemplated hereby or thereby.
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ARTICLE 5. AFFIRMATIVE COVENANTS
During the term of this Agreement, and until performance, payment
and/or satisfaction in full of the Obligations, the Borrower covenants and
agrees that it shall, and shall cause each of its Subsidiaries to, unless the
Required Banks otherwise consent in writing:
Section 5.1. MAINTENANCE OF EXISTENCE. Preserve and maintain its
corporate existence and good standing in the jurisdiction of its incorporation,
and qualify and remain qualified as a foreign corporation in each jurisdiction
in which such qualification is required from time to time, except where failure
to be so qualified would not have a Materially Adverse Effect; and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business. The Borrower shall not form any
new Subsidiary.
Section 5.2. CONDUCT OF BUSINESS. Continue to engage in a business of
the same general type as conducted by it on the date of this Agreement. Neither
the Borrower nor any Subsidiary shall engage, directly or indirectly, in the
business of underwriting insurance.
Section 5.3. MAINTENANCE OF PROPERTIES. Maintain, keep and preserve all
of its material Properties (tangible and intangible), necessary or useful in the
conduct of its business, in good working order and condition, ordinary wear and
tear excepted, EXCEPT that the failure to maintain, preserve and protect a
particular item of depreciable Property that is not of significant value, either
intrinsically or to the operations of the Borrower and its Subsidiaries, taken
as a whole, shall not constitute a violation of this covenant.
Section 5.4. MAINTENANCE OF RECORDS. Keep accurate and complete records
and books of account, in which complete entries will be made in accordance with
GAAP reflecting all financial transactions of the Borrower and its Subsidiaries,
and maintain a fiscal year that ends on December 31.
Section 5.5. MAINTENANCE OF INSURANCE. Maintain insurance (subject to
customary deductibles and retentions) with financially sound and reputable
insurance companies, in such amounts and with such coverages (including without
limitation public liability insurance, fire, hazard and extended coverage
insurance on all of its assets, necessary workers' compensation insurance and
all other coverages as are consistent with industry practice) as are maintained
by companies of established reputation engaged in similar businesses and
similarly situated and furnish to the Agent, upon written request, full
information as to the insurance carried.
Section 5.6. COMPLIANCE WITH LAWS. Comply in all respects with all
applicable laws, rules, regulations and orders, except where the failure to so
comply would not have a Materially Adverse Effect. Such compliance shall
include, without limitation, paying all taxes, assessments and governmental
charges imposed upon it or upon its Property (and all penalties and other costs,
if any, related thereto), unless contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside.
Section 5.7. RIGHT OF INSPECTION. From time to time upon prior notice
and in accordance with customary standards and practices within the banking
industry (including,
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without limitation, upon any Event of Default or whenever the Agent or any Bank
may have reasonable cause to believe that an Event of Default has occurred), the
Borrower shall permit the Agent or any Bank or any agent or representative
thereof, to examine and make copies and abstracts from the records and books of
account of, and visit the Properties of, the Borrower and its Subsidiaries to
discuss the affairs, finances and accounts of the Borrower and any such
Subsidiaries with any of their respective officers and directors and the
Borrower's independent accountants, and to make such verification concerning the
Borrower and its Subsidiaries as may be reasonable under the circumstances, and
furnish promptly to the Agent and the Banks true copies of all financial
information that may be reasonably requested by the Agent or any Bank; PROVIDED,
that the Agent and each Bank shall use reasonable efforts to not materially
interfere with the business of the Borrower and its Subsidiaries and to treat as
confidential any and all information obtained pursuant to this Section 5.7,
except to the extent disclosure is required by any law, regulation, order,
ruling, directive, guideline or request from any central bank or other
government authority (whether or not having the force of law).
Section 5.8. REPORTING REQUIREMENTS. The Borrower shall, and shall
cause each of its Subsidiaries, as applicable, to, furnish to the Agent and each
of the Banks:
(a) ANNUAL GAAP STATEMENTS. Within ninety (90) days following the end
of Borrower's fiscal year (or, if a registered company, such earlier
date as the Borrower's Form 10-K is filed with the Securities and
Exchange Commission) copies of:
(i) the consolidated and consolidating balance sheets of
the Borrower and its Subsidiaries as at the close of
such fiscal year, and
(ii) the consolidated and consolidating statements of
operations and consolidated statements of
stockholders' equity and cash flows, in each case of
the Borrower and its Subsidiaries for such fiscal
year,
in each case setting forth in comparative form the figures for the
preceding fiscal year and prepared in accordance with GAAP, all in
reasonable detail and accompanied by an opinion thereon of Ernst &
Young LLP or other firm of independent public accountants of recognized
national standing selected by the Borrower and reasonably acceptable to
the Required Banks, to the effect that the financial statements have
been prepared in accordance with GAAP (except for changes in
application in which such accountants concur) and present fairly in all
material respects in accordance with GAAP the financial condition of
the Borrower and its Subsidiaries as of the end of such fiscal year and
the results of its operations for the fiscal year then ended and that
the examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, included such tests of the accounting
records and such other auditing procedures as were considered necessary
under the circumstances.
(b) QUARTERLY GAAP STATEMENTS. As soon as available, and in any event
within forty-five (45) days after the end of each quarterly fiscal
period of the Borrower (other than the fourth fiscal quarter of any
fiscal year), copies of:
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(i) the consolidated and consolidating balance sheets of
Borrower and its Subsidiaries as at the end of such
fiscal quarter, and
(ii) the consolidated and consolidating statements of
operations and consolidated statements of
stockholders' equity and cash flows, in each case of
Borrower and its Subsidiaries for such fiscal quarter
and the portion of such fiscal year ended with such
fiscal quarter,
in each case setting forth in comparative form the figures for the
preceding fiscal year and prepared in accordance with GAAP all in
reasonable detail and certified as presenting fairly in accordance with
GAAP the financial condition of the Borrower and its Subsidiaries as of
the end of such period and the results of operations for such period by
a Senior Officer of such company, subject only to normal year-end
accruals and audit adjustments and the absence of footnotes.
(C) MONTHLY ACCOUNTS RECEIVABLE AGING REPORT AND FINANCIAL STATEMENTS.
As soon as available, and in any event within thirty (30) days
following the end of each month, copies of the following, certified by
a Senior Officer of the Borrower:
(i) a report in form satisfactory to the Agent of the age
of accounts receivable generated by the Borrower and
each of its Subsidiaries; and
(ii) the consolidated and consolidating balance sheet and
statements of operations of the Borrower and its
Subsidiaries as at the end of and for such month and,
with respect to the statements of operations, the
portion of the fiscal year ended with such month,
together with a report in form satisfactory to the
Agent showing a comparison of such results with the
Borrower's budget.
(D) ACTUAL AND PROJECTED QUARTERLY CAPITAL EXPENDITURES. As soon as
available, and in any event within forty-five (45) days after the end
of each quarterly fiscal period of the Borrower, a report in form
satisfactory to the Agent indicating (i) the actual Capital
Expenditures of the Borrower and its Subsidiaries for such fiscal
quarter and (ii) the projected Capital Expenditures for the remainder
of the fiscal year. The report shall also detail for both clauses (i)
and (ii) above that portion of Capital Expenditures which comprises
software development expenditures and shows both actual Capital
Expenditures and software development expenditures compared with the
budgeted amounts for such items.
(e) ANNUAL FORECASTS. On or before January 1 of each year, forecasts
for such year of the year-end balance sheet and statement of operations
of the Borrower and its Subsidiaries, on a consolidated and
consolidating basis and in form satisfactory to the Agent, together
with a certificate of a Senior Officer that such forecasts have been
prepared in good faith and on reasonable assumptions.
(f) MANAGEMENT LETTERS. Promptly upon receipt thereof, copies of any
reports or management letters relating to the internal financial
controls and procedures delivered to
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the Borrower or any of its Subsidiaries by any independent certified
public accountant in connection with examination of the financial
statements of the Borrower or any such Subsidiary.
(g) STOCKHOLDER COMMUNICATIONS AND SEC FILINGS. Promptly after the same
are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of
the Borrower and, if registered, copies of all annual, regular,
periodic and special reports and registration statements which the
Borrower may file or be required to file with the Securities and
Exchange Commission under Sections 13 and 15(d) of the Securities and
Exchange Act of 1934.
(h) NOTICE OF LITIGATION. Promptly after the commencement thereof,
notice of any action, suit and proceeding before any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, against the Borrower or any of
its Subsidiaries commenced by any creditor or lessor under any written
credit agreement with respect to borrowed money or any material
agreement, including any lease, which asserts a default thereunder on
the part of the Borrower or any of its Subsidiaries.
(i) NOTICES OF DEFAULT. As soon as practicable and in any event within
fifteen (15) days after the occurrence of each Default or Event of
Default, a written notice setting forth the details of such Default or
Event of Default and the action which is proposed to be taken by the
Borrower with respect thereto.
(j) OTHER FILINGS. At any time upon the reasonable request of the Agent
or any Bank, permit the Agent and each Bank the opportunity to review
copies of all reports, including annual reports, and notices which the
Borrower or any Subsidiary files with or receives from the PBGC or the
U.S. Department of Labor under ERISA; and as soon as practicable and in
any event within fifteen (15) days after the Borrower or any if its
Subsidiaries knows or has reason to know that any Reportable Event or
Prohibited Transaction has occurred with respect to any Plan or that
the PBGC or the Borrower or any such Subsidiary has instituted or will
institute proceedings under Title IV of ERISA to terminate any Plan,
the Borrower will deliver to the Agent and each Bank a certificate of a
Senior Officer of the Borrower setting forth details as to such
Reportable Event or Prohibited Transaction or Plan termination and the
action the Borrower proposes to take with respect thereto.
(k) QUARTERLY INVESTMENT REPORTS. Within forty-five (45) days after the
end of each quarterly fiscal period of the Borrower, a report from the
Borrower certifying as to the Investments of the Borrower and its
Subsidiaries, including the amount and rating thereof.
(l) ADDITIONAL INFORMATION. Such additional information as the Agent or
any Bank, through the Agent, may reasonably request concerning the
Borrower and its Subsidiaries and for that purpose all pertinent books,
documents and vouchers relating to its business,
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affairs and Properties, including Investments as shall from time to
time be designated by the Agent or any Bank.
(m) REPORT OF CUSTOMER FINANCINGS. Within five (5) days after the
occurrence of such event, a written notice detailing the substantive
terms of each agreement the Borrower or any Subsidiary has entered into
with a customer in which the Borrower or such Subsidiary has agreed to
finance more than $150,000 of the implementation costs of product sold
by the Borrower or such Subsidiary to such customer.
Section 5.9. CERTIFICATES.
(a) OFFICERS' CERTIFICATE. Simultaneously with each delivery of
financial statements pursuant to Section 5.8(a) and 5.8(b), the
Borrower shall deliver to the Agent and each Bank a certificate of its
Chief Financial Officer which will
(i) certify on behalf of the Borrower that such officer has
reviewed this Agreement and the condition and transactions of
the Borrower and its Subsidiaries for the period covered by
such financial statements, and state that to the best of his
knowledge the Borrower has observed or performed all of its
covenants and other agreements, and satisfied every condition,
contained in this Agreement and the other Loan Documents, and
no Default or Event of Default has occurred and is continuing
or, if a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof and the
action which is proposed to be taken with respect thereto, and
(ii) include information (with detailed calculations in the
form set out in EXHIBIT C) required to establish whether the
Borrower was in compliance with the covenants set forth in
this Agreement during the period covered by the financial
statements then being delivered.
(b) ACCOUNTANT'S CERTIFICATE. Simultaneously with each delivery of
financial statements pursuant to Section 5.8(a), the Borrower will
deliver to the Agent and each Bank a certificate of the independent
certified public accountants who certify such statements, stating
whether, in the course of their audit of the financial statements, they
obtained any knowledge of a condition or event which constitutes a
Default or Event of Default and the nature thereof.
Section 5.10. FURTHER ASSURANCES. The Borrower shall take or shall
cause its Subsidiaries to take all such further actions and execute and file or
record, at its own cost and expense, all such further documents and instruments
as the Agent may at any time reasonably determine may be necessary or advisable;
and shall do, execute, acknowledge, deliver, record, file, re-file, record,
register and re-register any and all such further acts, deeds, conveyances,
estoppel certificates, transfers, certificates, assurances and other instruments
as the Bank may reasonably require from time to time in order to carry out more
effectively the purposes of this Agreement and the other Loan Documents.
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Section 5.11. COMPLIANCE WITH AGREEMENTS. Promptly and fully comply
with all contractual obligations under all agreements, mortgages, indentures,
leases and/or instruments to which any one or more of the Borrower and its
Subsidiaries is a party, whether such agreements, mortgages, indentures, leases
or instruments are with the Agent, any Bank or another Person, except where such
failure to so comply would not have a Materially Adverse Effect.
Section 5.12. USE OF PROCEEDS. Use the proceeds of the Revolving Loans
only for the purposes described in Section 4.22.
Section 5.13. PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, including without limitation all
payroll and other tax obligations, except where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be or except where
the failure to pay, discharge or otherwise satisfy could not have a Materially
Adverse Effect.
Section 5.14. INTEREST RATE PROTECTION. Maintain interest rate
protection arrangements covering the aggregate amount of the Commitments of the
Banks, on terms and conditions satisfactory to the Agent.
ARTICLE 6. NEGATIVE COVENANTS.
During the term of this Agreement, and until performance, payment
and/or satisfaction in full of the Obligations, the Borrower covenants and
agrees that Borrower shall not, and shall not permit its Subsidiaries to, unless
the Required Banks otherwise consent in writing:
Section 6.1. DEBT. Create, incur, assume or suffer to exist any Debt,
except:
(a) Debt of the Borrower under this Agreement and the Revolving
Notes;
(b) Debt permitted under Section 6.2 hereof;
(c) Capital Leases of the Borrower and its Subsidiaries permitted
by Section 6.9; and
(d) Debt described in Section 4.10.
Section 6.2. GUARANTIES, ETC. Assume, guarantee, endorse or otherwise
be or become directly or contingently responsible or liable (including, but not
limited to, an agreement to purchase any obligation, or to supply or advance any
funds, or an agreement to cause such Person to maintain a minimum working
capital or net worth or otherwise to assure the creditors of any Person against
loss) for the obligations of any Person, except guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business and the Subsidiary Guaranty.
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Section 6.3. LIENS. Create, incur, assume or suffer to exist any Lien,
upon or with respect to any of its Properties, now owned or hereafter acquired,
except:
(a) Liens for taxes or assessments or other government charges or
levies if not yet due and payable or if due and payable, if they are
being contested in good faith by appropriate proceedings and for which
appropriate reserves are maintained;
(b) Liens imposed by law, such as mechanic's, materialmen's,
landlord's, warehousemen's and carrier's Liens, and other similar
Liens, securing obligations incurred in the ordinary course of business
which are not past due for more than forty-five (45) days, or which are
being contested in good faith by appropriate proceedings and for which
appropriate reserves have been established;
(c) Liens under workers' compensation, unemployment insurance, social
security or similar legislation (other than ERISA);
(d) judgment and other similar Liens arising in connection with court
proceedings; PROVIDED that the execution or other enforcement of such
Liens is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings;
(e) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially interfere with
the occupation, use and enjoyment by the Borrower or any of its
Subsidiaries of the Property or assets encumbered thereby in the normal
course of its business or materially impair the value of the Property
subject thereto;
(f) Liens referred to in Schedule 4.6;
(g) Liens consisting of pledges or deposits of Property to secure
performance in connection with operating leases made in the ordinary
course of business to which the Borrower or a Subsidiary is a party as
lessee, PROVIDED the aggregate value of all such pledges and deposits
in connection with any such lease does not at any time exceed 10% of
the annual fixed rentals payable under such lease; and
(h) Any interest or title of a lessor under any lease permitted by this
Agreement, including any Lien granted by the lessee under any such
lease and any Lien arising from the filing of UCC financing statements
with respect to any such lease.
Section 6.4. INVESTMENTS. Permit any investment by the Borrower or its
Subsidiaries in an Investment other than
(a) Investments constituting (i) operating deposit accounts
with banks and (ii) accounts receivable arising in the ordinary course
of business on ordinary business terms that are not overdue; or
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(b) Investments constituting commercial paper rated at least
A-1 by Standard & Poor's Ratings Group, a Division of McGraw-Hill,
Inc., or P-l by Moody's Investors Service Inc.
Section 6.5. MERGERS AND CONSOLIDATIONS AND ACQUISITIONS OF ASSETS.
Merge or consolidate with any Person (whether or not the Borrower or any
Subsidiary is the surviving entity), or acquire all or substantially all of the
assets or any of the capital stock of any Person without the prior written
consent of the Required Banks, which consent may be withheld or granted in the
sole and absolute discretion of the Banks; PROVIDED that any Subsidiary may
merge into the Borrower or any other Subsidiary.
Section 6.6. SALE OF ASSETS. Sell, lease or otherwise dispose of any
material portion of its assets without the prior written consent of the Required
Banks, which consent may be withheld or granted in the sole and absolute
discretion of the Banks.
Section 6.7. STOCK OF SUBSIDIARIES, ETC. Pledge, assign, hypothecate,
transfer, convey, sell or otherwise dispose of, encumber or grant any security
interest in, or deliver to any other Person, any shares of capital stock of its
Subsidiaries, or permit any such Subsidiaries to issue any additional shares of
its capital stock to any Person other than the Borrower or any Subsidiaries,
except directors' qualifying shares and pursuant to the CORE Pledge Agreement.
Section 6.8. TRANSACTIONS WITH AFFILIATES. Enter into any transaction
of any kind with any Affiliate of the Borrower, or any Person that owns or holds
five percent (5%) or more of the outstanding common stock of the Borrower, OTHER
THAN (a) transactions between or among the Borrower and its wholly owned
Subsidiaries or between or among its wholly owned Subsidiaries, (b) transactions
on terms at least as favorable to the Borrower or its Subsidiaries as would be
the case in an arm's-length transaction between unrelated parties of equal
bargaining power or (c) as contemplated by the Acquisition Agreement.
Section 6.9. CAPITAL EXPENDITURES. Make or permit to be made any
Capital Expenditure in any fiscal year, or commit to make any Capital
Expenditure in any fiscal year, which when added to the aggregate Capital
Expenditures of the Borrower and its Subsidiaries theretofore made or committed
to be made in that fiscal year, would exceed the corresponding amount for such
year as set forth below:
<TABLE>
<CAPTION>
-------------------- -----------------------------------------
Year Permitted Capital Expenditures
-------------------- -----------------------------------------
<S> <C>
1999 $3,550,000
-------------------- -----------------------------------------
2000 $4,100,000
-------------------- -----------------------------------------
2001 $4,720,000
-------------------- -----------------------------------------
2002 $5,750,000
-------------------- -----------------------------------------
2003 $5,950,000
-------------------- -----------------------------------------
2004 $5,950,000
-------------------- -----------------------------------------
</TABLE>
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<PAGE>
Section 6.10. MINIMUM CONSOLIDATED GAAP NET WORTH. As of the end of any
fiscal quarter, permit Consolidated GAAP Net Worth of the Borrower and its
Subsidiaries to be less than an amount equal to (a) for the period to and
including December 31, 1999, $26,000,000, PLUS 75% of cumulative positive net
income for each fiscal quarter following the fiscal quarter ending December 31,
1998, PLUS the amount of paid-in-capital resulting from any issuance by the
Borrower of its capital stock after August 31, 1998 to and including December
31, 1999 and (b) for all fiscal quarters after December 31, 1999, commencing
with the fiscal quarter ended March 31, 2000, $33,900,000, PLUS 75% of
cumulative positive net income for each fiscal quarter following the fiscal
quarter ending December 31, 1999, PLUS the amount of paid-in-capital resulting
from any issuance by the Borrower of its capital stock after March 31, 2000.
Section 6.11. MINIMUM INTEREST COVERAGE. As of the end of any fiscal
quarter, permit the Interest Coverage Ratio to be less than 3.5 to 1.
Section 6.12. MINIMUM DEBT SERVICE COVERAGE. As of the end of each
fiscal quarter, permit the Debt Service Coverage Ratio for the immediately
preceding four fiscal quarters (ending on such date) to be less than 1.5 to 1.
Section 6.13. MINIMUM FIXED CHARGE COVERAGE. During any fiscal year,
permit the Fixed Charge Coverage Ratio to be less than the corresponding amount
for such fiscal year as set forth below:
<TABLE>
<CAPTION>
Minimum Permissible
Year Fixed Charge Coverage Ratio
---- ---------------------------
<S> <C>
1999 1.25 to 1
2000 1.5 to 1
2001 2.0 to 1
2002 2.0 to 1
</TABLE>
Section 6.14. DISTRIBUTIONS. Make any Distributions from Net Income of
the Borrower without the prior written consent of the Required Banks, which
consent may be withheld or granted in the sole and absolute discretion of the
Banks.
Section 6.15. NO LIMIT ON UPSTREAM PAYMENTS BY SUBSIDIARIES. Permit any
of its Subsidiaries to enter into or agree, or otherwise become subject, to any
agreement, contract or other arrangement with any Person pursuant to the terms
of which (a) such Subsidiary is or would be prohibited from declaring or paying
any cash dividends or Distributions or making any other payment to the Borrower,
or (b) such dividends, distributions or other payments are, or would be, limited
or restricted on an annual or cumulative basis or otherwise. The Borrower shall
cause its Subsidiaries, to the extent permitted by applicable law, to make such
distributions of funds, including dividends, as may be necessary to meet in a
timely manner all of the Borrower's obligations under this Agreement.
Section 6.16. EARNINGS. As of the end of the fiscal quarter ended June
30, 1999 and each fiscal quarter thereafter, permit consolidated Net Income of
the Borrower and its Subsidiaries for
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the immediately preceding four fiscal quarters (ending on such date and
excluding the effect of any Restructuring Charges) on a cumulative basis to be
less than zero dollars ($0).
Section 6.17. LIMITATION ON NEGATIVE PLEDGES. Enter into any agreement
with any other Person (other than any agreement existing on the date hereof and
other than this Agreement) restricting its ability to create or incur Debt
hereunder or to secure Debt hereunder.
Section 6.18. INCONSISTENT AGREEMENTS. Enter into any indenture,
agreement, instrument or other arrangement which (a) directly or indirectly
prohibits or restrains, or has the effect of prohibiting or restraining, or
imposes materially adverse conditions upon, the incurrence of the obligations,
the amending of the Loan Documents or the ability of any Subsidiary to (i) pay
dividends or make other distributions on its capital stock, (ii) make loans or
advances to the Borrower or (iii) repay loans or advances from the Borrower or
(b) contains any provision which would be violated or breached by the making of
Revolving Loans or by the performance by the Borrower or any Subsidiary of any
of its obligations under any Loan Document.
ARTICLE 7. EVENTS OF DEFAULT.
Section 7.1. EVENTS OF DEFAULT. Any of the following events shall be an
"Event of Default":
(a) (i) the Borrower shall fail to pay any principal amount of any
Revolving Loan when due, whether at stated maturity, by acceleration,
by notice of prepayment or otherwise, or (ii) the Borrower shall fail
to pay any premium or interest, or any fees or other amounts payable
hereunder, when due whether at stated maturity, by acceleration, by
notice of prepayment or otherwise;
(b) any written statement, representation or warranty made by the
Borrower or any Subsidiary in any Loan Document to which the Borrower
or such Subsidiary is party, or which is contained in any certificate,
document, financial or other written statement furnished at any time
under or in connection with this Agreement or any other Loan Document
shall prove to have been incorrect in any material respect on or as of
the date made;
(c) the Borrower shall (i) fail to perform or observe any term,
covenant, or agreement contained in Section 4.21, Section 5.1, Section
5.8(i), Section 5.14 or Article 6; or (ii) fail to perform or observe
any term, covenant, or agreement on its part to be performed or
observed (other than the obligations specifically referred to elsewhere
in this Section 7.1) in this Agreement (including without limitation
any such term, covenant or agreement contained in Article 5 hereof) or
any other Loan Document and such failure shall continue unremedied for
thirty (30) consecutive days;
(d) any Subsidiary shall default in the observance or performance of
any agreement contained in any Loan Document to which it is a party,
and such default shall continue unremedied for a period of thirty (30)
days after the earlier of (i) a Senior Officer of such
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Subsidiary becomes aware of such default or (ii) notice of such default
to such Subsidiary by the Agent;
(e) the Borrower or any Subsidiary shall (i) fail to pay any
indebtedness, including but not limited to Debt (other than the payment
Obligations described in (a) above), of the Borrower or such
Subsidiary, as the case may be, or any interest or premium thereon,
when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise); or (ii) fail to perform or observe
any term, covenant or condition on its part to be performed or observed
under any agreement or instrument relating to any such Debt, when
required to be performed or observed and such failure continues after
any applicable notice and grace period, if the effect of such failure
to perform or observe is to accelerate, or to permit the acceleration
of the maturity of such Debt, or (iii) any such Debt shall be declared
to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the stated maturity
thereof; PROVIDED, HOWEVER, that it shall not be a Default or Event of
Default under this Section 7.1(e) unless the aggregate principal amount
of all such Debt as described in clauses (i) through (iii) above shall
exceed $100,000;
(f) the Borrower or any Subsidiary (i) shall generally not, or be
unable to, or shall admit in writing its inability to, pay its debts as
such debts become due; or (ii) shall make an assignment for the benefit
of creditors or petition or apply to any tribunal for the appointment
of a custodian, receiver or trustee for it or a substantial part of its
assets; or (iii) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; or (iv) shall have had any such petition or
application filed or any such proceeding shall have been commenced
against it in which an adjudication or appointment is made or order for
relief is entered, or which petition, application or proceeding remains
undismissed for a period of sixty (60) days or more; or (v) shall be
the subject of any proceeding under which its assets may be subject to
seizure, forfeiture or divestiture (other than a proceeding in respect
of a Lien permitted under Section 6.3(a)); or (vi) by any act or
omission shall indicate its consent to, approval of or acquiescence in
any such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or trustee for all or any
substantial part of its Property; or (vii) shall suffer any such
custodianship, receivership or trusteeship to continue undischarged for
a period of sixty (60) days or more;
(g) one or more judgments, decrees or orders for the payment of money
in excess of $100,000 in the aggregate shall have been rendered against
the Borrower or any of its Subsidiaries (excluding judgments which are
covered by insurance other than self-insurance) and such judgments,
decrees or orders shall continue unsatisfied and in effect for a period
of sixty (60) consecutive days without being vacated, discharged,
satisfied or stayed or, if required, bonded pending appeal;
(h) any of the following events shall occur or exist with respect to
the Borrower or any ERISA Affiliate: (i) any Prohibited Transaction
involving any Plan; (ii) any
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Reportable Event shall occur with respect to any Plan; (iii) the filing
under Section 4041 of ERISA of a notice of intent to terminate any Plan
or the termination of any Plan subject to Title IV of ERISA (other than
in a "standard termination" referred to in Section 4041 of ERISA); (iv)
any event or circumstance exists which would constitute grounds
entitling the PBGC to institute proceedings under Section 4042 of ERISA
for the termination of, or for the appointment of a trustee to
administer any Plan, or the institution by the PBGC of any such
proceedings; (v) complete or partial withdrawal under Section 4201 or
4204 of ERISA from a Multiemployer Plan or the reorganization,
insolvency or termination of any Multiemployer Plan; and in each case
above, such event or condition, together with all other such events or
conditions, if any, would in the reasonable opinion of the Agent
subject the Borrower to any tax, penalty or other liability to a Plan,
Multiemployer Plan, the PBGC or otherwise (or any combination thereof)
which in the aggregate exceed or may exceed $100,000 or;
(i) this Agreement or any of the other Loan Documents shall at any time
after its execution and delivery and for any reason cease to be in full
force and effect or shall be declared null and void, or the validity or
enforceability thereof shall be contested by the Borrower or the
Borrower shall deny it has any further liability or obligation
hereunder.
Section 7.2. REMEDIES. Without limiting any other rights or remedies of
the Agent or the Banks provided for elsewhere in this Agreement or any other
Loan Document, or by applicable law, or in equity, or otherwise, if any Event of
Default shall occur and be continuing, the Agent may, and if requested by the
Required Banks shall, by notice to the Borrower, (i) declare the Commitment of
each Bank to be terminated, whereupon the same shall forthwith terminate, (ii)
declare all amounts owing under this Agreement and the Revolving Notes (whether
or not such Obligations be contingent or unmatured) to be forthwith due and
payable, whereupon all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; PROVIDED that, in the case
of an Event of Default referred to in Section 7.1(f) above with respect to the
Borrower, the Commitment of each Bank shall be immediately automatically
terminated, and all such amounts shall be immediately due and payable without
notice, presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE 8. THE AGENT.
Section 8.1. AUTHORIZATION AND ACTION.
(a) Each Bank hereby irrevocably appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
the Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement and the other Loan Documents, 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
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be fully protected in so acting or refraining from acting) upon the instructions
of the Required Banks, and such instructions shall be binding upon all Banks;
PROVIDED, HOWEVER, that the Agent shall not be required to take any action which
exposes the Agent to liability or which is contrary to this Agreement, the Loan
Documents or applicable law.
(b) The Banks agree to cooperate in good faith and in a commercially
reasonable manner in connection with the exercise by the Agent of the rights
granted to the Banks by law, this Agreement and the other Loan Documents,
including, but not limited to, providing necessary information to the Agent with
respect to the Obligations and preparing and executing necessary affidavits,
certificates, notices, instruments and documents. Subject to the authority of
the Required Banks or other applicable number of Banks as provided in this
Agreement to direct the Agent in writing when such direction by the Banks is
required by this Agreement for such action, the Agent is hereby authorized to
act for and on behalf of the Banks in all day-to-day matters with respect to the
exercise of rights described herein, such as the supervision of attorneys,
accountants, appraisers or others in connection with litigation or other similar
actions.
Section 8.2. EXCULPATORY PROVISIONS; AGENT'S RELIANCE, ETC. Neither the
Agent, nor its directors, officers, agents, employees or Affiliates shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement and the other Loan Documents, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent (i) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to any Bank and
shall not be responsible to any Bank for any statements, warranties or
representations made in or in connection with this Agreement or the other Loan
Documents; (iii) shall have no duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement and the other Loan Documents on the part of the Borrower, (iv) shall
not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement and the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; and (v) shall incur no liability under or in respect of this
Agreement and the other Loan Documents by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telegram, cable,
telex or telecopy) purported to be genuine and signed or sent by the proper
party or parties. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement in accordance with a request of
the Required Banks, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks.
Section 8.3. NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or the Borrower,
describing 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, the
Agent shall give prompt notice thereof to the Banks. The Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Banks, PROVIDED that unless and until the Agent shall
have received such directions, the Agent
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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 interests of the Banks; PROVIDED FURTHER, that Agent shall
not be required to take any action which exposes the Agent to liability or which
is contrary to this Agreement, the other Loan Documents or applicable law.
Section 8.4. FLEET AND AFFILIATES. With respect to its Commitment and
the Revolving Loans made by it, the Agent shall have the same rights and powers
with respect to this Agreement or the Revolving Notes as any other Bank and may
exercise the same as though it were not the Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include Fleet in its
individual capacity. Fleet and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrower and its Affiliates and any of their respective
Affiliates and any Person who may do business with or own securities of the
Borrower or its Affiliates all as if Fleet were not the Agent, and without any
duty to account therefor to the Banks.
Section 8.5. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other bank and based on
such information as it deems necessary (the receipt of which such Bank
acknowledges), made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.
Section 8.6. INDEMNIFICATION. The Banks severally and ratably agree to
indemnify the Agent (to the extent not reimbursed by the Borrower), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement and the other Loan
Documents, or any action taken or omitted by the Agent under this Agreement and
the other Loan Documents, provided that no Bank shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including reasonable counsel fees) incurred
by the Agent in connection with the preparation, execution, administration, or
enforcement of, or legal advice in respect of rights or responsibilities under,
this Agreement and the other Loan Documents, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
Section 8.7. SUCCESSOR AGENT. The Agent may not resign as Agent under
this Agreement without the prior written consent of the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent hereunder with the approval of the Borrower, which shall not be
unreasonably withheld. If no successor Agent shall have been so appointed by the
Required Banks and shall have accepted such appointment within 30 days after the
retiring Agent's resignation, then the retiring Agent may, on behalf of the
Banks,
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appoint a successor Agent with the approval of the Borrower, which shall not be
unreasonably withheld, which shall be a commercial bank organized under the laws
of the United States of America or of any state thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent under this Agreement by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement arising from and
after the date of resignation. After any retiring Agent's resignation as Agent
under this Agreement, the provisions of this Article 8 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
Section 8.8. APPLICATION OF THIS ARTICLE TO THE BORROWER.
Notwithstanding anything to the contrary in this Article 8, the provisions of
Sections 8.1, 8.2, 8.3, 8.5 and 8.6 shall be deemed to govern the rights and
obligations as among the Banks and the Agent only, and shall not be construed to
affect any rights or obligations of the Borrower with respect to the Banks and
the Agent.
ARTICLE 9. MISCELLANEOUS.
Section 9.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document nor consent to any
departure by the Borrower or any Subsidiary therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Agent, the
Borrower or the applicable Subsidiary, and the Required Banks and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. Notwithstanding the foregoing, the written
consent of all of the Banks shall be required for any amendment or waiver having
the effect of (i) extending the Revolving Loan Termination Date (except as
expressly provided for herein), extending the time of payment of principal,
interest or fees on any Revolving Loans or reducing or forgiving the principal
amount thereof (other than by repayment), decreasing the interest rate borne by
any Revolving Loans, increasing the amount of any Bank's Commitment over the
amount then in effect (it being understood that a waiver of any Default or Event
of Default or a mandatory reduction in the Commitment shall not constitute an
increase in any Commitment of any Bank), or postponing or reducing any scheduled
reduction of the Commitment (except as set forth herein), (ii) reducing the
percentage specified in the definition of Required Banks, (iii) amending or
waiving any provision of this Section 9.1, (iv) releasing any guaranty or any
collateral under the Security Documents or (v) consenting to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement or any other Loan Agreement. No failure on the part of the Agent or
any Bank to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof or preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 9.2. USURY. Anything herein to the contrary notwithstanding,
the Obligations of the Borrower with respect to this Agreement and the Revolving
Notes shall be subject to the limitation that payments of interest shall not be
required to the extent that receipt thereof would
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be contrary to provisions of law applicable to the Banks limiting rates of
interest which may be charged or collected by the Banks.
Section 9.3. EXPENSES; INDEMNITIES.
(a) Unless otherwise agreed in writing by all of the Banks, the
Borrower shall reimburse the Agent and the Banks on demand for all reasonable
out-of-pocket costs, expenses and charges (including without limitation,
reasonable fees and charges of counsel for the Agent and the Banks) incurred by
the Agent and the Banks in connection with any amendment or modification of this
Agreement and the other Loan Documents. The Borrower further agrees to pay on
demand all reasonable costs and expenses (including reasonable counsel fees and
expenses), if any, in connection with the enforcement, including without
limitation, the enforcement of judgments (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the other Loan Documents or any
other document to be delivered under this Agreement and all audits, all
insurance costs, and all other reasonable costs and expenses which the Agent or
any Bank has or shall have paid by reason of the Borrower's failure or refusal
to do so as and when required hereunder. The Borrower agrees to indemnify and
hold harmless the Agent and the Banks from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
costs, expenses, charges and fees, except to the extent caused by the Agent's or
such Bank's negligence or willful misconduct or breach of this Agreement. Until
paid, the amount of any cost, expense or charge shall constitute, together with
all accrued interest thereon, part of the Obligations, and shall accrue interest
from the date five days after demand at the Base Rate. Nothwithstanding anything
to the contrary which may be stated or implied herein or in the Existing Credit
Agreement, it is explicitly understood and agreed that the Borrower is not
responsible for reimbursing or paying any costs, expenses or charges of the
Agent or any Banks in connection with the negotiation and preparation of this
Agreement.
(b) The Borrower agrees to indemnify the Agent and each Bank, and their
directors, officers, employees, agents and Affiliates from, and hold each of
them harmless against, any and all claims, damages, losses, liabilities, costs
and expenses (including without limitation, reasonable fees and disbursements of
counsel) arising as a consequence of (i) any failure by the Borrower to pay the
Agent or any Bank, as required under this Agreement, punctually on the due date
thereof, any amount payable by the Borrower to the Agent or any Bank or (ii) the
acceleration, in accordance with the terms of this Agreement, of the time of
payment of any of the Obligations of the Borrower, except to the extent caused
by the Agent's or such Bank's negligence or willful misconduct or breach of this
Agreement. Such losses, costs or expenses may include, without limitation, (i)
any costs incurred by the Bank in carrying funds to cover any overdue principal,
overdue interest, or any other overdue sums payable by the Borrower to such Bank
or (ii) any losses incurred or sustained by any Bank in liquidating or
reemploying funds acquired by such Bank from third parties.
(c) The Borrower agrees to indemnify the Agent and the Banks, and their
directors, officers, employees, agents and Affiliates from, and hold each of
them harmless against, any and all claims, damages, liabilities, losses, costs
and expenses (including without limitation,
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reasonable fees and disbursements of counsel) arising out of or by reason of any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to any transaction
contemplated by this Agreement or any other Loan Document, any actions or
omissions of the Borrower or any Subsidiary or any of their respective
directors, officers, employees or agents in connection with this Agreement or
any other Loan Document, or any actual or proposed use by the Borrower or any
Subsidiary of the proceeds of the Revolving Loans, including without limitation,
the reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified).
(d) The Borrower agrees to indemnify the Agent and the Banks, and their
directors, officers, employees, agents and Affiliates from, and hold each of
them harmless against, any and all losses, liabilities, claims, damages, costs
and expenses (including without limitation, reasonable fees and disbursements of
counsel, engineers or similar professionals) which may be incurred by or
asserted against the Agent or any Bank or any such party in connection with or
arising out of or relating to (i) the Banks' compliance with any environmental
law with respect to the Properties or operations of the Borrower or its
Subsidiaries, (ii) any natural resource damages, governmental fines or penalties
or other amounts mandated by any governmental authority, court order, demand or
decree in connection with the disposal by the Borrower or its Subsidiaries
either on-site or off-site (including leakage or seepage from any such site
including third party treatment facilities) of pollutants, contaminants or
hazardous wastes and (iii) any personal injury or property damage to third
parties resulting from such pollutants, contaminants or hazardous wastes.
Section 9.4. TERM; SURVIVAL. This Agreement shall continue in full
force and effect as long as any Obligations are owing by the Borrower to the
Agent or any Bank. No termination of this Agreement shall in any way affect or
impair the rights and obligations of the parties hereto relating to any
transactions or events prior to such termination date, and all warranties and
representations of the Borrower shall survive such termination. All
representations and warranties made hereunder and in any document, certificate,
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the other Loan Documents. The
obligations of the Borrower under Sections 2.11, 2.12 and 9.3 shall survive the
repayment of the Revolving Loans and the termination of the Commitment of each
Bank.
Section 9.5. ASSIGNMENT; PARTICIPATIONS.
(a) Upon thirty (30) days prior notice to the Borrower and with the
written consent of the Agent and the Borrower (which consent shall not be
unreasonably withheld), each Bank may assign to one or more commercial banks or
financial institutions all or a portion of its rights and obligations under this
Agreement (including without limitation, all or a portion of its Commitment and
the amounts under the Revolving Loans owing to it); provided, however, that (i)
each such assignment shall be of a constant, and not a varying, percentage of
all of the assigning Bank's rights and obligations under this Agreement, (ii)
the amount of the
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Commitment of the assigning Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance) with respect to
such assignment shall in no event be less than $5,000,000 and shall be an
integral multiple of $500,000 (or in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Bank's rights and
obligations under this Agreement, any lesser increment), and (iii) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register (as defined in (c) below), an
Assignment and Acceptance and a $3,500 non-refundable processing fee from the
assigning Bank. Notwithstanding the foregoing, no written consent of the
Borrower shall be required in connection with any assignment by a Bank to an
Affiliate of such Bank of all or a portion of its rights and obligations under
this Agreement. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a Bank party hereto and, to the extent that
rights and obligations (including any portion of any Commitment) hereunder have
been assigned to it pursuant to such Assignment and Acceptance, shall have the
rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder
shall, to the extent that rights and obligations (including any portion of any
Commitment) hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights to indemnification
under Section 9.3) and be released from its obligations under this Agreement
arising after the date of assignment (and, in the case of an assignment covering
all or the remaining portion of an assigning Bank's rights and obligations under
this Agreement, such Bank shall cease to be a party hereto.)
(b) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the most recent financial statements referred to in Section 5.8
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the
Agent, such assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee appoints and authorizes the Agent to take such action as Agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto; (vi) such
assignee agrees that it will perform in accordance with the terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Bank; and (vii) such assignee represents that such assignment will not
result in any Prohibited Transaction.
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(c) The Agent shall maintain at its address set forth on the signature
pages hereto a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the Banks
and the Commitment of, and principal amount of the Revolving Loans owing to,
each Bank 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 Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and its assignee, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of EXHIBIT E, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including without limitation, all or a portion of its Commitment and
the amounts under the Revolving Loans owing to it); provided, however, that (i)
such Bank's obligations under this Agreement (including without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement; PROVIDED, that no Bank shall
transfer or grant any participation under which the participant shall have the
right to approve any amendment to or waiver of this Agreement or any Revolving
Note, except with respect to an extension of the final maturity of the Revolving
Loans or a reduction of the principal amount of or the rate of interest payable
on the Revolving Loans or any fees related thereto.
(f) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.5, disclose to
the assignee or participant or proposed assignee or participant any information
relating to the Borrower furnished to such Bank by or on behalf of the Borrower;
provided that, prior to any such disclosure, the assignee or participant or
proposed assignee or participant shall agree in writing to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Bank.
(g) Nothing herein shall prohibit any Bank from pledging or assigning
all or any portion of such Bank's rights under this Agreement and the other Loan
Documents to a Federal Reserve Bank; PROVIDED, HOWEVER, that no such pledge or
assignment or enforcement thereof shall release such Bank from its obligations
hereunder or under any other Loan Document.
Section 9.6. NOTICES. All notices, requests, demands and other
communications provided for herein shall be in writing and shall be (i) hand
delivered; (ii) sent by certified,
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registered or express United States mail, return receipt requested, or reputable
next-day courier service; or (iii) given by telex, telecopy, telegraph or
similar means of electronic communication. All such communications shall be
effective upon the receipt thereof. Notices shall be addressed to the Borrower,
the Agent and the Banks at their respective addresses set forth on, in the case
of the Borrower and the Agent, the signature pages of this Agreement or, in the
case of the Banks, Schedule 1.1 to this Agreement, or to such other address as
the Borrower, the Agent or the Banks shall theretofore have transmitted to the
other party in writing by any of the means specified in this Section.
Section 9.7. SETOFF. The Borrower agrees that, in addition to (and
without limitation of) any right of setoff, banker's lien or counterclaim the
Agent and each of the Banks may otherwise have, the Agent and each of the Banks
shall be entitled, at their option, to offset balances (general or special, time
or demand, provisional or final, and regardless of whether such balances are
then due to the Borrower) held by the Agent or any of the Banks for the account
of the Borrower at any of their offices, in Dollars or any other currency,
against any amount payable by the Borrower under this Agreement or any other
Loan Document which is not paid when due, taking into account any applicable
grace period, in which case the offsetting party shall promptly notify the
Borrower thereof; PROVIDED that failure to give such notice shall not affect the
validity thereof.
Section 9.8. JURISDICTION; IMMUNITIES.
(a) The Borrower hereby irrevocably submits to the jurisdiction of any
Massachusetts State or United States Federal court sitting in Massachusetts over
any action or proceeding arising out of or relating to this Agreement or any
other Loan Document, and the Borrower hereby irrevocably agrees that all claims
in respect of such action or proceeding may be heard and determined in such
Massachusetts State or Federal court. The Borrower irrevocably consents to the
service of any and all process in any such action or proceeding by the mailing
of copies of such process to the Borrower at its address specified in Section
9.6. The Borrower agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. The Borrower further waives any
objection to venue in such State and any objection to an action or proceeding in
such State on the basis of forum non conveniens. The Borrower further agrees
that any action or proceeding brought against the Bank shall be brought only in
Massachusetts State or United States Federal courts sitting in Massachusetts.
(b) Nothing in this Section shall affect the right of the Agent and
each Bank to serve legal process in any other manner permitted by law or affect
the right of the Agent and each Bank to bring any action or proceeding against
the Borrower or its Property in the courts of any other jurisdictions.
Section 9.9. TABLE OF CONTENTS; HEADINGS. Any table of contents and the
headings and captions hereunder are for convenience only and shall not affect
the interpretation or construction of this Agreement.
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Section 9.10. SEVERABILITY. The provisions of this Agreement are
intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity
or enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 9.11. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Agreement by signing any
such counterpart.
Section 9.12. INTEGRATION. This Agreement, the Revolving Notes, the
CORE Pledge Agreement, the CORE Security Agreement, the Subsidiary Guaranty, the
Subsidiary Security Agreement and the Trademark Security Agreement set forth the
entire agreement between the parties hereto relating to the transactions
contemplated hereby and thereby and supersede any prior oral or written
statements or agreements with respect to such transactions.
Section 9.13. GOVERNING LAW. This Agreement shall be governed by, and
interpreted and construed in accordance with, the laws of the Commonwealth of
Massachusetts.
Section 9.14. CONFIDENTIALITY. Subject to the following sentence, the
Agent, each Bank and any assignee of such Bank becoming a party to this
Agreement agrees to use its best efforts, consistent with its normal operating
procedures, to retain in confidence in accordance with each Bank's customary
procedures and not disclose without the prior written consent of the Borrower
any written information about the Borrower and its Subsidiaries obtained
pursuant to the requirements of this Agreement and identified in writing by the
Borrower as "confidential" or "non-public," except as permitted under Section
9.5 of this Agreement. Notwithstanding the foregoing, the Agent or any Bank (A)
may disclose or otherwise use such information to the extent that such
information is required in any application, report, statement or testimony
submitted to any governmental agency having or claiming to have jurisdiction
over the Agent or such Bank, (B) may disclose or otherwise use such information
to the extent that such information is required in response to any summons or
subpoena or in connection with any litigation affecting the Agent or such Bank,
(C) may disclose or otherwise use such information to the extent that such
information is reasonably believed by the Agent or such Bank (after notification
to the Borrower, unless such notification is prohibited by law) to be required
in order to comply with any law, order, regulation, or ruling applicable to the
Agent or such Bank, and (D) may disclose or otherwise use such information to
the extent that such information becomes publicly available through no breach of
the Agent's or such Bank's obligations hereunder.
Section 9.15. AUTHORIZATION OF THIRD PARTIES TO DELIVER OPINIONS, ETC.
The Borrower hereby authorizes and directs each Person whose preparation or
delivery to the Agent or any Bank of any opinion, report or other information is
a condition or covenant under this Agreement (including under Articles 4, 5 and
6) to so prepare or deliver such opinion, report or other information for the
benefit of the Agent and the Banks. The Borrower agrees to confirm such
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authorizations and directions provided for in this Section 9.15 from time to
time as may be requested by the Agent or any Bank.
Section 9.16. REPLACEMENT REVOLVING NOTE. Upon receipt of an affidavit
of an officer of any Bank as to the loss, theft, destruction or mutilation of
such Bank's Revolving Note or any other security document which is not of public
record, and, in the case of any such loss, theft, destruction or mutilation,
upon cancellation of such Revolving Note or other security document, the
Borrower will issue, in lieu thereof, a replacement Revolving Note or other
security document in the same principal amount thereof and otherwise of like
tenor.
SECTION 9.17. BORROWER'S WAIVERS. THE BORROWER ACKNOWLEDGES THAT IT HAS
BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION AND THIS
AGREEMENT AND THAT IT KNOWINGLY, VOLUNTARILY, INTELLIGENTLY AND IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY COURT AND IN ANY SUIT, ACTION OR PROCEEDING OR ANY
MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE REVOLVING NOTES, THE OTHER LOAN DOCUMENTS,
OR ANY OF THE BORROWER'S DOCUMENTS RELATED THERETO AND THE ENFORCEMENT OF ANY OF
THE AGENT'S OR ANY BANK'S RIGHTS AND REMEDIES OR ANY COURSE OF CONDUCT, COURSE
OF DEALINGS, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANKS TO MAKE THE REVOLVING
LOANS.
Section 9.18. LIMITATION OF LIABILITY. NONE OF THE AGENT'S OR ANY OF
THE BANKS' AFFILIATES OR THEIR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS SHALL
HAVE ANY LIABILITY WITH RESPECT TO, AND THE BORROWER HEREBY WAIVES, RELEASES AND
AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED
BY THE BORROWER IN CONNECTION WITH ANY CLAIM IN ANY WAY ARISING OUT OF, RELATED
TO OR CONNECTED WITH THE LOAN DOCUMENTS OR THE RELATIONSHIPS ESTABLISHED
THEREUNDER OR THE TRANSACTIONS CONTEMPLATED THEREBY, WHETHER SUCH CLAIM ARISES
OR IS ASSERTED BEFORE OR AFTER THE CLOSING DATE OR BEFORE OR AFTER THE MATURITY
DATE.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CORE, INC.
By: /s/ William E. Nixon
------------------------
Name: William E. Nixon
Title: EVP & CFO
Address for Notices:
18881 Von Karman Avenue
Suite 1750
Irvine, California 92612
Attn: Chief Financial Officer
Telephone No.: (714) 442-2149
Telecopier No.: (949) 442-2102
With a copy to:
Stephen M. Kane, Esq.
Rich, May, Bilodeau & Flaherty, P.C.
176 Federal Street
Boston, MA 02110
Telephone No.: (617) 556-3827
Telecopier No.: (617) 556-3890
FLEET NATIONAL BANK, as Agent
By: /s/ Holly A. O'Neill
----------------------------
Name: Holly A. O'Neill
Title: Bank Officer
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Address for Notices:
100 Federal Street
Mail Code MA BOS 01-10-07
Boston, MA 02110
Attn: Financial Institutions Group
Telephone No.: (617) 434-3816
Telecopier No.: (617) 434-1537
With a copy to:
William A. Hunter, Esq.
Day, Berry & Howard LLP
260 Franklin Street
Boston, MA 02110-3179
Telephone No.: (617) 345-4625
Telecopier No.: (617) 345-4745
BANKS:
FLEET NATIONAL BANK
By: /s/ Holly A. O'Neill
----------------------------
Name: Holly A. O'Neill
Title: Bank Officer
UNION BANK OF CALIFORNIA
By: /s/ Kim Ha
----------------------------
Name: Kim Ha
Title: Vice President
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EXHIBIT 10.2
AGREEMENT AND
AMENDMENT TO CAPITAL STOCK PURCHASE AGREEMENT
This AGREEMENT AND AMENDMENT TO CAPITAL STOCK PURCHASE AGREEMENT is
made and entered into this ___ day of March 2000 by and among CORE, INC., a
Massachusetts corporation ("CORE"), DISABILITY REINSURANCE MANAGEMENT SERVICES,
INC., a Delaware corporation ("DRMS"), and MICHAEL D. LACHANCE, JAMES T. FALLON,
LISA O. HANSEN, DAVID C. MITCHELL AND DAVID K. RICH (each a "Stockholder" and
collectively the "Stockholders").
WHEREAS, CORE, DRMS and the Stockholders are the parties to a certain
Capital Stock Purchase Agreements dated as of August 31, 1998 pursuant to which
CORE purchased all of the issued and outstanding shares of capital stock of DRMS
from the Stockholders (the "DRMS Stock Purchase Agreement"); and
WHEREAS, in connection with the DRMS Stock Purchase Agreement, each of
the Stockholders entered into a separate Employment Agreement with DRMS as of
August 31, 1998 (each an "Employment Agreement" and collectively, the
"Employment Agreements"), providing for, subject to the terms and conditions set
forth therein, the continued employment of each Stockholder for a certain Term
(as defined therein); and
WHEREAS, under Section 1.2(a)(ii) of the DRMS Stock Purchase Agreement,
the Stockholders were to receive certain Additional Consideration (consisting of
up to Three Hundred Seventy-Five Thousand (375,000) shares of Core Common
Stock), in the event DRMS was able to meet certain earnings levels for a
Measuring Period equal to the twelve (12) consecutive quarters following CORE's
purchase of the DRMS capital stock from the Stockholders (as described in
EXHIBIT A to the DRMS Stock Purchase Agreement); and
WHEREAS, in recognition of DRMS' favorable earnings performance to
date, the Stockholders' contribution to that performance and the willingness of
certain of the Stockholders to take on additional responsibilities under the
Employment Agreements, CORE is willing to pay the full Additional Consideration
to all the Stockholders prior to the end of the Measuring Period, subject to the
restrictions on transfer and other provisions hereof.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the receipt of which is
hereby acknowledged by all parties hereto, the parties hereto hereby agree as
follows:
1. PAYMENT OF ADDITIONAL CONSIDERATION IN FULL. Notwithstanding the provisions
of EXHIBIT A to the DRMS Stock Purchase Agreement, on April 1, 2000, CORE
shall pay to the Stockholders the full Additional Consideration of Three
Hundred Seventy-Five Thousand (375,000) shares of CORE Common Stock by
issuing said shares to the Stockholders in accordance with the allocation
set forth on SCHEDULE A hereto.
<PAGE>
2. AMENDMENT OF EMPLOYMENT AGREEMENTS. James T. Fallon, Lisa O. Hansen and
Michael D. Lachance, each agree to execute and deliver an amendment to his
or her Employment Agreement substantially in the form of EXHIBIT I hereto
expanding his or her duties thereunder.
3. STOCKHOLDER REPRESENTATIONS AND WARRANTIES. Each Stockholder acknowledges
that he or she made certain representations and warranties with respect to
the DRMS Stock Purchase Agreement and each is willing to make substantially
similar representations and warranties with respect to this Agreement.
Accordingly, each Stockholder represents and warrants (with respect to
himself or herself and not with respect to the other Stockholders) that:
(a) Such Stockholder is an individual whose residential
address is set forth on SCHEDULE A hereto. None of the
Stockholders are corporations, partnerships or any other type
of entity.
(b) Such Stockholder has full power and authority to execute
and deliver this Agreement and to perform his or her
obligations hereunder. This Agreement constitutes the valid
and legally binding obligation of such Stockholder,
enforceable in accordance with its terms and conditions. Such
Stockholder need not give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(c) Neither the execution and the delivery of this Agreement,
nor the consummation of the transactions contemplated hereby,
will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court
to which such Stockholder is subject, or (ii) conflict with,
result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license,
instrument, or other arrangement to which such Stockholder is
a party or by which he or she is bound or to which any of his
or her assets is subject.
(d) Such Stockholder (i) understands that the shares of CORE
Common Stock to be issued to him or her as provided in this
Agreement have not been, and will not be, registered under the
Securities Act, or under any state securities laws, and are
being offered and sold in reliance upon federal and state
exemptions for transactions not involving any public offering,
(ii) is acquiring such CORE Common Stock solely for his or her
own account for investment purposes, and not with a view to
the distribution thereof, (iii) is a sophisticated investor
with knowledge and experience in business and financial
matters who is capable of evaluating the merits and risks of
owning CORE Common Stock), (iv) has had the opportunity to
obtain information concerning CORE as desired, including the
opportunity to ask questions of CORE's management in order to
evaluate the merits and the risks inherent in holding CORE
Common Stock, (v) is able to bear the economic risk and lack
of liquidity inherent in holding CORE Common Stock, (vi)
understands that no federal or state agency has passed upon
the shares of CORE Common Stock to be issued as provided in
this Agreement or made any
2
<PAGE>
finding or determination as to the fairness of this
transaction, (vii) understands that there are substantial
risks incident to an investment in CORE Common Stock,
including, without limitation, those set forth in the document
entitled "CORE, Inc. Risk Factors" provided to each
Stockholder in August 1998 in connection with the DRMS Stock
Purchase Agreement, (viii) understands that the holders of
CORE Common Stock, including the Stockholders (as defined in
this Agreement) are not assured of any return on an investment
in CORE Common Stock, and (ix) is not relying on CORE with
respect to individual tax or other economic considerations
involved in this transaction.
(e) Such Stockholder has carefully reviewed and understands this
Agreement, the DRMS Stock Purchase Agreement and all documents
related thereto or provided in connection therewith
(including, without limitation, the document entitled "CORE,
Inc. Risk Factors").
(f) Such Stockholder is an "Accredited Investor" as such term is
defined under the Securities Act or 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated
thereunder, as he or she falls within at least one of the
following categories:
(i) a natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his or her
purchase exceeds $1,000,000; or
(ii) a natural person who had an individual income in excess
of $200,000 in each of the two most recent years or joint
income with that person's spouse in excess of $300,000 in each
of those years and who has a reasonable expectation of
reaching the same income level in the current year.
4. RESTRICTIONS ON TRANSFER. Each Stockholder further covenants and agrees (with
respect to himself or herself and not with respect to the other Stockholders)
that prior to September 30, 2001, he or she will not (i) directly or indirectly,
offer, sell, assign, transfer, encumber, pledge, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise dispose of, other
than by operation of law, any shares of CORE Common Stock to be issued
hereunder, or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the shares of CORE Common Stock to be issued hereunder.
In addition, with respect to the shares of CORE Common Stock to be issued
hereunder, each Stockholder hereby defers, from the date hereof until September
30, 2001, any and all rights that he or she would otherwise have under that
certain Registration Rights Agreement between CORE and the Stockholders dated
August 31, 1998 (the "Registration Rights Agreement"), said Registration Rights
Agreement being, in effect, suspended until September 30, 2001 with respect to
the shares of CORE Common Stock to be issued hereunder. However, there shall be
no suspension or diminution of Stockholders rights under the Registration Rights
Agreement with respect to the shares of CORE Common Stock issued to Stockholders
on August 31, 1998.
The restrictions set forth in the first paragraph of this Section and the waiver
set forth in the preceding paragraph shall be null, void and without effect in
the event there occurs a change in control of CORE prior to September 30, 2001.
For purposes of this Agreement, a "change in control of CORE" shall be deemed to
have occurred if:
3
<PAGE>
(a) there is a merger or consolidation of CORE in which CORE is
not the continuing or surviving corporation;
(b) CORE sells substantially all of its assets to a single
purchaser or to a group of associated purchasers;
(c) at least two-thirds of the outstanding common stock of CORE is
sold, exchanged or otherwise disposed of in one transaction or
in a series of related transactions;
(d) any person or entity becomes directly or indirectly the owner
or beneficial owner of 50% or more of CORE's outstanding
common stock;
(e) individuals who at the date hereof constitute the Board of
Directors of CORE cease to constitute a majority thereof,
PROVIDED THAT such change is the direct or indirect result of
a proxy fight and contested election for positions on the
Board; or
(f) the Board of Directors of CORE determines in its sole and
absolute discretion that there has been a change in control of
CORE.
4A. Notwithstanding any provision of this Agreement to the contrary, if
otherwise permissible under securities laws and other laws, the provisions of
Section 4 shall not restrict any Stockholder's ability to:
(a) transfer CORE Common Stock to his or her spouse or children or
to a testamentary or INTER VIVOS trust created for the benefit
of his or her spouse, children or other heirs, provided such
transferee shall agree in writing to the restrictions on
transfer set forth in Section 4;
(b) transfer CORE Common Stock after his or her death or
disability;
(c) transfer CORE Common Stock at any time after either CORE or
DRMS terminates the Stockholder's employment other than for
cause;
(d) vote to approve, or dissent from, any merger, consolidation or
substantial sale of assets by CORE;
(e) transfer CORE Common Stock pursuant to any offer by CORE to
redeem CORE Common Stock; or
(f) transfer CORE Common Stock pursuant to any tender offer for
CORE Common Stock subject to Regulations 14D and 14E.
5. AFFECT ON OTHER PROVISIONS OF DRMS STOCK PURCHASE AGREEMENT OR
RELATED AGREEMENTS.
(a) Other than as set forth above, the parties are not amending or
revising any continuing obligations under the DRMS Stock
Purchase Agreement, the
4
<PAGE>
Employment Agreements, the Registration Rights Agreement or
any other related agreements.
(b) Any capitalized term used but not defined herein shall have
the meaning as set forth in the DRMS Stock Purchase Agreement.
(c) The provisions of Article VI of the DRMS Stock Purchase
Agreement shall govern any and all breaches or violations or
alleged breaches or violations of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as
of the date first above written.
DISABILITY REINSURANCE
MANAGEMENT SERVICES, INC. CORE, INC.
By: /s/ George C. Carpenter IV By: /s/ George C. Carpenter IV
--------------------------- ---------------------------
Title: Vice President Title: Chairman and Chief
Executive Officer
/s/ Michael D. Lachance /s/ James T. Fallon
--------------------------- ---------------------------
MICHAEL D. LACHANCE JAMES T. FALLON
/s/ Lisa O. Hansen /s/ David C. Mitchell
-------------------------------- ---------------------------
LISA O. HANSEN DAVID C. MITCHELL
/s/ David K. Rich
------------------
DAVID K. RICH
ATTACHMENTS
Schedule A - Allocation of 375,000 shares of CORE Common Stock, including
addresses Exhibit I - Form of Amendment Number 1 to Employment Agreement
5
<PAGE>
SCHEDULE A
TO AGREEMENT AND AMENDMENT TO CAPITAL STOCK PURCHASE AGREEMENT
ALLOCATION OF 375,000 SHARES OF CORE COMMON STOCK
<TABLE>
<CAPTION>
NAME AND ADDRESSES NUMBER OF SHARES
<S> <C> <C>
James T. Fallon 101,250 (27.0%)
Essex Drive
Yarmouth, ME 04096
Lisa O. Hansen 101,250 (27.0%)
429 Old Ocean House Road
Cape Elizabeth, ME 04107
Michael D. Lachance 101,250 (27.0%)
8 Schooner Ridge Road
Cumberland Foreside, ME 04110
David C. Mitchell 24,375 (6.5%)
24 Cole Field Road
Cape Elizabeth, ME 04107
David K. Rich 46,875 (12.5%)
10 Long Sands Road
Center Ossipee, NH 03814
-------
TOTAL: 375,000 (100%)
</TABLE>
6
<PAGE>
AMENDMENT NUMBER 1
TO
EMPLOYMENT AGREEMENT
This AMENDMENT NUMBER 1 TO EMPLOYMENT AGREEMENT ("AMENDMENT") is made
and entered as of January 1, 2000 by and between DISABILITY REINSURANCE
MANAGEMENT SERVICES, INC., a Delaware corporation (the "Company") and Michael D.
Lachance (the "Executive").
WHEREAS, CORE, INC. ("CORE"), the Company, the Executive, and others
who held capital stock in the Company are the parties to a certain Capital Stock
Purchase Agreement dated as of August 31, 1998 pursuant to which, INTER ALIA,
CORE purchased all of the shares of capital stock of the Company held by the
Executive (the "the Stock Purchase Agreement"); and
WHEREAS, in connection with the Stock Purchase Agreement, the Executive
entered into a separate Employment Agreement with the Company, dated as of
August 31, 1998 (the "Employment Agreement"), providing for, subject to the
terms and conditions set forth therein, the continued employment of the
Executive for a certain Term (as defined therein); and
WHEREAS, the Executive is now willing to expand the duties the
Executive is required to perform under the Employment Agreement in exchange for
CORE's payment, prior to the time scheduled therefor, of certain Additional
Consideration (consisting of shares of CORE common stock and subject to certain
restrictions on the transfer thereof) under the Stock Purchase Agreement.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the receipt of which is
hereby acknowledged by both parties hereto, the Company and the Executive hereby
agree as follows:
1. AMENDMENT OF SECTION 2 OF THE EMPLOYMENT AGREEMENT. Section 2 of the
Employment Agreement, entitled "DUTIES," is hereby amended by inserting at the
end of said Section the following:
"In addition to the foregoing duties, the Executive, together with the
other Managing Directors of the Company, shall market and sell to
existing Company clients and other middle market insurance carriers
CORE's WorkAbility products, including WorkAbility products revised and
enhanced to better serve the middle market insurance carriers."
2. AFFECT ON OTHER PROVISIONS OF THE EMPLOYMENT AGREEMENT. Other than as set
forth above, the parties are not amending or revising any other provision of or
continuing obligation under the Employment Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
March ___, 2000 to be effective as of January 1, 2000.
DISABILITY REINSURANCE EXECUTIVE
MANAGEMENT SERVICES, INC.
By: /s/ George C. Carpenter IV /s/ Michael D. Lachance
---------------------------- -------------------------
Title: Vice President Michael D. Lachance
2
<PAGE>
EXHIBIT 10.4
AMENDMENT NUMBER 1
TO
EMPLOYMENT AGREEMENT
This AMENDMENT NUMBER 1 TO EMPLOYMENT AGREEMENT ("AMENDMENT") is made
and entered as of January 1, 2000 by and between DISABILITY REINSURANCE
MANAGEMENT SERVICES, INC., a Delaware corporation (the "Company") and James T.
Fallon (the "Executive").
WHEREAS, CORE, INC. ("CORE"), the Company, the Executive, and others
who held capital stock in the Company are the parties to a certain Capital Stock
Purchase Agreement dated as of August 31, 1998 pursuant to which, INTER ALIA,
CORE purchased all of the shares of capital stock of the Company held by the
Executive (the "the Stock Purchase Agreement"); and
WHEREAS, in connection with the Stock Purchase Agreement, the Executive
entered into a separate Employment Agreement with the Company, dated as of
August 31, 1998 (the "Employment Agreement"), providing for, subject to the
terms and conditions set forth therein, the continued employment of the
Executive for a certain Term (as defined therein); and
WHEREAS, the Executive is now willing to expand the duties the
Executive is required to perform under the Employment Agreement in exchange for
CORE's payment, prior to the time scheduled therefor, of certain Additional
Consideration (consisting of shares of CORE common stock and subject to certain
restrictions on the transfer thereof) under the Stock Purchase Agreement.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the receipt of which is
hereby acknowledged by both parties hereto, the Company and the Executive hereby
agree as follows:
1. AMENDMENT OF SECTION 2 OF THE EMPLOYMENT AGREEMENT. Section 2 of the
Employment Agreement, entitled "DUTIES," is hereby amended by inserting at the
end of said Section the following:
"In addition to the foregoing duties, the Executive, together with the
other Managing Directors of the Company, shall market and sell to
existing Company clients and other middle market insurance carriers
CORE's WorkAbility products, including WorkAbility products revised and
enhanced to better serve the middle market insurance carriers."
2. AFFECT ON OTHER PROVISIONS OF THE EMPLOYMENT AGREEMENT. Other than as set
forth above, the parties are not amending or revising any other provision of or
continuing obligation under the Employment Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
March ___, 2000 to be effective as of January 1, 2000.
DISABILITY REINSURANCE EXECUTIVE
MANAGEMENT SERVICES, INC.
By: /s/ George C. Carpenter IV /s/ James T. Fallon
--------------------------- ----------------------------
Title: Vice President James T. Fallon
2
<PAGE>
EXHIBIT 10.5
AMENDMENT NUMBER 1
TO
EMPLOYMENT AGREEMENT
This AMENDMENT NUMBER 1 TO EMPLOYMENT AGREEMENT ("AMENDMENT") is made
and entered as of January 1, 2000 by and between DISABILITY REINSURANCE
MANAGEMENT SERVICES, INC., a Delaware corporation (the "Company") and Lisa O.
Hansen (the "Executive").
WHEREAS, CORE, INC. ("CORE"), the Company, the Executive, and others
who held capital stock in the Company are the parties to a certain Capital Stock
Purchase Agreement dated as of August 31, 1998 pursuant to which, INTER ALIA,
CORE purchased all of the shares of capital stock of the Company held by the
Executive (the "the Stock Purchase Agreement"); and
WHEREAS, in connection with the Stock Purchase Agreement, the Executive
entered into a separate Employment Agreement with the Company, dated as of
August 31, 1998 (the "Employment Agreement"), providing for, subject to the
terms and conditions set forth therein, the continued employment of the
Executive for a certain Term (as defined therein); and
WHEREAS, the Executive is now willing to expand the duties the
Executive is required to perform under the Employment Agreement in exchange for
CORE's payment, prior to the time scheduled therefor, of certain Additional
Consideration (consisting of shares of CORE common stock and subject to certain
restrictions on the transfer thereof) under the Stock Purchase Agreement.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the receipt of which is
hereby acknowledged by both parties hereto, the Company and the Executive hereby
agree as follows:
1. AMENDMENT OF SECTION 2 OF THE EMPLOYMENT AGREEMENT. Section 2 of the
Employment Agreement, entitled "DUTIES," is hereby amended by inserting at the
end of said Section the following:
"In addition to the foregoing duties, the Executive, together with the
other Managing Directors of the Company, shall market and sell to
existing Company clients and other middle market insurance carriers
CORE's WorkAbility products, including WorkAbility products revised and
enhanced to better serve the middle market insurance carriers."
2. AFFECT ON OTHER PROVISIONS OF THE EMPLOYMENT AGREEMENT. Other than as set
forth above, the parties are not amending or revising any other provision of or
continuing obligation under the Employment Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
March ___, 2000 to be effective as of January 1, 2000.
DISABILITY REINSURANCE EXECUTIVE
MANAGEMENT SERVICES, INC.
By: /s/ George C. Carpenter IV /s/ Lisa O. Hansen
--------------------------- ----------------------------
Title: Vice President Lisa O. Hansen
2
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 15,906,497
<ALLOWANCES> 505,045
<INVENTORY> 0
<CURRENT-ASSETS> 13,946,570
<PP&E> 21,413,025
<DEPRECIATION> 11,998,777
<TOTAL-ASSETS> 52,966,254
<CURRENT-LIABILITIES> 6,122,995
<BONDS> 0
0
0
<COMMON> 863,783
<OTHER-SE> 31,763,419
<TOTAL-LIABILITY-AND-EQUITY> 52,966,254
<SALES> 0
<TOTAL-REVENUES> 17,146,044
<CGS> 0
<TOTAL-COSTS> 8,806,127
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 64,975
<INTEREST-EXPENSE> 428,994
<INCOME-PRETAX> 526,559
<INCOME-TAX> 160,000
<INCOME-CONTINUING> 366,559
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 366,559
<EPS-BASIC> 0.04
<EPS-DILUTED> 0.04
</TABLE>
