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EXHIBIT 10.1
FIRST AMENDMENT
TO AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of June 30, 2000
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of
June 30, 2000 (this "First Amendment") is among CORE, INC., a Massachusetts
corporation (the "Borrower"), FLEET NATIONAL BANK ("Fleet"), UNION BANK OF
CALIFORNIA ("Union Bank" and, collectively with Fleet, 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").
PRELIMINARY STATEMENTS. Fleet and the Borrower entered into a Credit
Agreement dated as of August 31, 1998, which Credit Agreement was amended by a
First Amendment to the Credit Agreement dated as of December 31, 1998, a Second
Amendment to the Credit Agreement dated as of February 19, 1999, and a Third
Amendment to the Credit Agreement dated as of April 27, 1999, and amended and
restated by an Amended and Restated Credit Agreement dated as of February 28,
2000 (as so amended, the "Existing Credit Agreement"). The Borrower has now
requested that the Banks and the Agent amend the Existing Credit Agreement to
provide for (a) a reduction in the amount of each Bank's Commitment to an
aggregate amount of $6,000,000 and (b) the extension of a Term Loan in the
aggregate principal amount of $14,500,000, the proceeds of which shall be used
to retire a portion of those Revolving Loans which are currently outstanding.
The Banks and the Agent have agreed to such request upon certain terms and
conditions.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, the Borrower, the Agent and the Banks agree as follows:
Section 1.1 AMENDMENTS TO THE EXISTING CREDIT AGREEMENT. Effective as of
the effective date hereof and subject to the satisfaction of the conditions
precedent set forth in Section 2 hereof, the Existing Credit Agreement is
amended as follows:
(a) SECTION 1.1 (DEFINITIONS) of the Existing Credit Agreement is
amended as follows:
(i) The definition of "Applicable Interest Rate" is hereby
deleted and replaced with the following:
"Applicable Interest Rate" means (a) with respect to any Revolving Loan,
the Base Rate or Eurodollar Rate for such Revolving Loan, plus the Applicable
Margin, (b) with respect to any portion of the Term Loan which bears interest at
the Base Rate, the Base Rate plus the Applicable Margin, and (c) with respect to
any portion of the Term Loan which bears interest at the Eurodollar Rate, the
Eurodollar Rate plus the Applicable Margin.
(ii) The definition of "Base Rate Loan" is hereby deleted and
replaced with the following:
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"Base Rate Loan" means (a) with respect to the Revolving Loans, a
Revolving Loan which bears interest at the Base Rate, plus the Applicable
Margin, and (b) with respect to the Term Loan, any portion of the Term Loan
which bears interest at the Base Rate, plus the Applicable Margin.
(iii) The definition of "Continue", "Continuation", and
"Continued" is hereby deleted and replaced with the following:
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Sections 2.5 or 2.6 hereof of a Eurodollar Rate Loan
from one Interest Period to the next Interest Period.
(iv) The definition of "Convert", "Conversion" and
"Converted" is hereby deleted and replaced with the following:
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Sections 2.5 or 2.6 hereof of Base Rate Loans into Eurodollar Rate
Loans or of Eurodollar Rate Loans into Base Rate Loans.
(v) The definition of "Debt Service Coverage Ratio" is
hereby deleted and replaced with the following:
"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 principal payments on the Term
Loan 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, (x) with respect to the Revolving Loans, 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, (y) with respect to any
portion of the Term Loan which the Borrower has elected to have treated as a
Eurodollar Rate Loan, that such Eurodollar Rate Loan will have an Interest
Period of six (6) months and will remain outstanding for the succeeding four
fiscal quarters and (z), with respect to the Revolving Loans and the Term Loan,
the Base Rate or Eurodollar Rate, as the case may be, in effect on such date
will remain in effect during such period.
(vi) The definition of "EBITDA" is hereby deleted and
replaced and replaced with the following:
"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) amortization for such
period, all of which shall be determined in accordance with GAAP; PROVIDED,
HOWEVER, that (1) 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,
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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, (2) 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, and (3) for
purposes of testing the covenants in Sections 6.11, 6.12 and 6.13, settlement
charges in the amount of $1,700,000 with respect to the TCM Services, Inc.
arbitration shall be added to Net Income with respect to the fiscal quarters
ended March 31, 2000, June 30, 2000 and September 30, 2000.
(vii) The definition of "Eurodollar Rate" is hereby deleted
and replaced with the following:
"Eurodollar Rate" means, for the Interest Period for each Eurodollar Rate
Loan comprising part of the same Borrowing, with respect to the Revolving Loans,
and for the Interest Period for each portion of the Term Loan which the Borrower
elects to bear interest at the Eurodollar Rate, with respect to the Term Loan,
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 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
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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.
(viii) The definition of "Eurodollar Rate Loan" is hereby
deleted and replaced with the following:
"Eurodollar Rate Loan" means (a) with respect to the Revolving Loans, a
Revolving Loan which bears interest at the Eurodollar Rate, plus the Applicable
Margin, and (b) with respect to the Term Loan, any portion of the Term Loan
which the Borrower has elected to have bear interest at the Eurodollar Rate,
plus the Applicable Margin.
(ix) The definition of "Fixed Charge Coverage Ratio" is
hereby deleted and replaced with the following:
"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, (x) with respect to the Revolving Loans, 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, (y) with respect to any
portion of the Term Loan which the Borrower has elected to have treated as a
Eurodollar Rate Loan, that such Eurodollar Rate Loan will have an Interest
Period of six (6) months and will remain outstanding for the succeeding four
fiscal quarters and (z), with respect to the Revolving Loans and the Term Loan,
the Base Rate or Eurodollar Rate, as the case may be, in effect on such date
will remain in effect during such period.
(x) The definition of "Interest Coverage Ratio" is hereby
deleted and replaced with the following:
"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, (x) with respect to the Revolving Loans, 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, (y) with respect to any
portion of the Term Loan which the Borrower has elected to have treated as a
Eurodollar Rate Loan, that such Eurodollar Rate Loan will have an Interest
Period of six (6)
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months and will remain outstanding for the succeeding four
fiscal quarters and (z), with respect to the Revolving Loans and the Term Loan,
the Base Rate or Eurodollar Rate, as the case may be, in effect on such date
will remain in effect during such period.
(xi) The definition of "Interest Period" is hereby deleted
and replaced with the following:
"Interest Period" means (a) for each Eurodollar Rate Loan comprising part
of the same Borrowing, with respect to the Revolving Loans, and for each portion
of the Term Loan which the Borrower elects to have bear interest at the
Eurodollar Rate, with respect to the Term Loan, 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, with
respect to the Revolving Loans, and for each portion of the Term Loan which
bears interest at the Base Rate, with respect to the Term Loan, 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:
(a) with respect to the Revolving Loans, all
Eurodollar Rate Loans or comprising part of the same Borrowing shall be of the
same duration;
(b) 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;
(c) 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
(d) no Interest Period for any Revolving Loan shall
extend beyond the Revolving Loan Termination Date, and no Interest Period for
the Term Loan shall extend beyond the Term Loan Maturity Date.
(xii) The definition of "Lending Office" is hereby deleted and
replaced with the following:
"Lending Office" means, for each Bank and for the Term Loan and each type
of Revolving Loan, the lending office of such Bank (or of an affiliate of such
Bank) designated as such for such Term Loan and 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
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Borrower as the office through which the Term Loan and its Revolving Loans of
such type are to be made and maintained.
(xiii) The definition of "Loan Documents" is hereby deleted
and replaced with the following:
"Loan Documents" mean, collectively, this Agreement, the Revolving Notes,
the Term 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.
(xiv) The definition of "Required Banks" is hereby deleted and
replaced with the following:
"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 sum of (a) the aggregate principal amount of the
Revolving Loans outstanding and (b) that portion of the Term Loan which remains
outstanding.
(xv) The definition of "Revolving Loan Termination Date" is
hereby deleted and replaced with the following:
"Revolving Loan Termination Date" means December 31, 2004.
(xvi) The following definition of "Term Loan" is hereby added:
"Term Loan" means the term loan made by the Banks pursuant to Section 2.5.
(xvii) The following definition of "Term Loan Eurodollar
Election" is hereby added:
"Term Loan Eurodollar Election" means the certificate, in the form of
EXHIBIT L hereto, to be delivered by the Borrower to the Agent and shall include
any accompanying certifications or documents.
(xviii) The following definition of "Term Loan Maturity Date"
is hereby added:
"Term Loan Maturity Date" means December 31, 2004.
(xix) The following definition of "Term Notes" is hereby
added:
"Term Notes" means the promissory notes of the Borrower, in the form of
EXHIBIT K hereto, evidencing the Term Loan made by the Banks hereunder,
including any partial or total amendment, restatement, replacement, extension or
substitution of or for such Term Notes.
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(b) SECTION 2.5 of the Existing Credit Agreement is hereby deleted
in its entirety and replaced with the following:
Section 2.5. THE TERM LOAN.
(a) Subject to the terms and conditions of this Agreement, the Banks
severally agree to extend a term loan to the Borrower (hereinafter collectively
referred to as the "Term Loan") in the aggregate principal amount of Fourteen
Million Five Hundred Thousand Dollars ($14,500,000), with each Bank to lend a
pro rata portion of such amount based upon the "Percentage of Aggregate
Commitments" listed for such Bank on Schedule 1.1 hereto. The Term Loan shall be
advanced to the Borrower in a single disbursement, with such disbursement to be
made as of the Amendment Effective Date. The proceeds of the Term Loan shall be
used by the Borrower to repay a portion of the Revolving Loans currently
outstanding.
(b) The Term Loan shall be evidenced by a single promissory note in
favor of each Bank in the form of EXHIBIT K, dated as of the Amendment Effective
Date, and duly completed and executed by the Borrower. Principal payments shall
be payable on the Term Loan in accordance with the following schedule:
<TABLE>
<CAPTION>
DATE PRINCIPAL PAYMENT DUE
---- ---------------------
<S> <C>
September 30, 2000 $750,000
December 31, 2000 $750,000
March 31, 2001 $750,000
June 30, 2001 $750,000
September 30, 2001 $750,000
December 31, 2001 $750,000
March 31, 2002 $750,000
June 30, 2002 $750,000
September 30, 2002 $750,000
December 31, 2002 $750,000
March 31, 2003 $750,000
June 30, 2003 $750,000
September 30, 2003 $750,000
December 31, 2003 $750,000
March 31, 2004 $1,000,000
June 30, 2004 $1,000,000
September 30, 2004 $1,000,000
December 31, 2004 $1,000,000
</TABLE>
(c) The Term Loan shall be treated as a Base Rate Loan hereunder,
PROVIDED that, subject to the terms and conditions hereof, the Borrower may
elect amounts of the Term Loan, each such amount to be equal to $250,000 or any
greater amount which is an integral multiple thereof, for treatment as a
Eurodollar Rate Loan for an available Interest Period selected by the Borrower,
PROVIDED FURTHER that such amounts may not exceed, in the aggregate, the
principal amount of the Term Loan scheduled to be outstanding as of the end of
the desired Interest Period, after taking into account the principal payments
required under Section 2.5(b).
To elect such treatment, the Borrower shall give the Agent a Term Loan
Eurodollar Election, in the form of EXHIBIT L hereto, prior to 11:00 a.m.
(California time), on the date at
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least three (3) Business Days prior to the first day of the Interest Period for
which the Borrower desires to treat all or a portion of the Term Loan as a
Eurodollar Rate Loan, specifying:
(i) the amount of the Term Loan that the Borrower wishes to
borrow on, Convert to or Continue as a Eurodollar Rate Loan; and
(ii) the Interest Period to be applicable thereto,
PROVIDED, that the Borrower shall not be entitled to (A) treat any portion of
the Term Loan as a Eurodollar Rate Loan (including the Continuation of a prior
election for such treatment as a Eurodollar Rate Loan into a subsequent Interest
Period) if at the time there exists a Default or an Event of Default, or (B)
request any Interest Period which would extend beyond the Term Loan Maturity
Date.
Unless the Borrower, at least three Business Days prior to the end of an
Interest Period for which the Borrower has elected to treat all or a portion of
the Term Loan as a Eurodollar Rate Loan, gives the Agent a Term Loan Eurodollar
Election specifying that it desires to Continue to treat such portion of the
Term Loan as a Eurodollar Rate Loan for a subsequent Interest Period in
accordance with the procedure set forth above, the treatment of such portion of
the Term Loan shall automatically revert to a Base Rate Loan. There shall not be
more than four (4) Interest Periods relating to the Term Loan outstanding at any
time.
(c) SECTION 2.7(b) of the Existing Credit Agreement is hereby
deleted and replaced with the following:
(b) The Borrower may, upon at least three (3) Business Days' notice to
the Agent, prepay the Eurodollar Rate Loans (including Revolving Loans made as
Eurodollar Rate Loans and any portion of the Term Loan which the Borrower may
elect to have treated as a Eurodollar Rate Loan), 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 (or such portion of the Term Loan
which the Borrower has elected to treat as a Eurodollar Rate 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
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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 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 and the Term 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.
(d) SECTION 2.8 of the Existing Credit Agreement is hereby deleted
and replaced with the following:
Section 2.8. INTEREST ON THE REVOLVING LOANS AND THE TERM LOAN.
(a) Each Base Rate Loan (including those Revolving Loans made as Base
Rate Loans and any portion of the Term Loan which is treated as a Base Rate Loan
hereunder) 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 (including those Revolving Loans made as
Eurodollar Loans and any portion of the Term Loan which the Borrower elects to
have treated as a Eurodollar Loan hereunder) 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 and the Term Loan shall bear interest for each day until
paid at a rate per annum equal to the Default Rate.
(e) SECTION 2.10 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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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 Term Loan and 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 (1) 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.
(f) SECTION 2.11 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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 Term Loan hereunder, 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, order, ruling,
interpretation, directive, guideline or request, to the
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extent that such Bank reasonably determines such increase in capital to be
allocable to the existence of such Bank's Term Loan hereunder, 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.
(g) SECTION 2.13 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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 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 and no portion of
the Term Loan shall be treated as a Eurodollar Rate Loan 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
-11-
<PAGE>
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
and no portion of the Term Loan shall be treated as a Eurodollar Rate Loan
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.
(h) SECTION 2.15 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
Section 2.15. COMPUTATIONS. All computations of interest and like payments
hereunder on the Revolving Loans and the Term Loan 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.
(i) SECTION 2.16 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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 Term Loan or 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 the outstanding amount of the Term Loan
and/or the outstanding Revolving Loans obtained by all the Banks, such Bank
shall forthwith purchase from the other Banks such participations in the Term
Loan and/or 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 2.16 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.
(j) SECTION 4.1 of the Existing Credit Agreement is hereby deleted
and replaced with 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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<PAGE>
has all requisite power and authority to execute and deliver and to perform this
Agreement, the Term Notes, 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, the Term Notes 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 Term Notes, 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.
(k) SECTION 4.22 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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, and shall use the proceeds of the Term Loan
to repay a portion of the outstanding Revolving Loans. 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".
(l) SECTION 5.12 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
Section 5.12. USE OF PROCEEDS. Use the proceeds of the Term Loan and the
Revolving Loans only for the purposes described in Section 4.22.
(m) SECTION 5.14 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
Section 5.14. INTEREST RATE PROTECTION. Maintain interest rate protection
arrangements covering an amount acceptable to the Agent, on terms and conditions
satisfactory to the Agent.
(n) SECTION 6.1(a) of the Existing Credit Agreement is hereby
deleted and replaced with t he following:
(a) Debt of the Borrower under this Agreement, the Term Notes and the
Revolving Notes;
(o) SECTION 6.9 of the Existing Credit Agreement is hereby deleted
and replaced with the following:
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
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<PAGE>
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 $5,750,000
2001 $6,500,000
2002 $9,000,000
2003 $12,500,000
2004 $15,000,000
</TABLE>
(p) SECTION 6.10 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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 the corresponding amount for each year as set forth
below:
<TABLE>
<CAPTION>
MINIMUM CONSOLIDATED GAAP
YEAR NET WORTH
---- ------------------------------
<S> <C>
2000 $31,000,000
2001 $32,000,000
2002 $35,000,000
2003 $40,000,000
2004 $45,000,000
</TABLE>
(q) SECTION 6.13 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
Section 6.13. MINIMUM FIXED CHARGE COVERAGE. As of the end of any fiscal
quarter, permit the Fixed Charge Coverage Ratio for such quarter to be less than
the corresponding amount for such fiscal quarter as set forth below:
<TABLE>
<CAPTION>
MINIMUM PERMISSIBLE
QUARTER ENDING DATE FIXED CHARGE COVERAGE RATIO
------------------- ---------------------------
<S> <C>
6/30/00 1.15 to 1
9/30/00 1.15 to 1
12/31/00 and all fiscal
quarters thereafter 1.3 to 1
</TABLE>
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<PAGE>
(r) SECTION 6.18 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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, the Term Loan or by the performance by the Borrower or any
Subsidiary of any of its obligations under any Loan Document.
(s) SECTION 7.1(a) of the Existing Credit Agreement is hereby
deleted and replaced with the following:
(a) (i) the Borrower shall fail to pay any principal amount of the Term
Loan or 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;
(t) SECTION 7.2 of the Existing Credit Agreement is hereby deleted
and replaced with the following:
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, the Term Notes 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.
(u) SECTION 8.4 of the Existing Credit Agreement is hereby deleted
and replaced with the following:
Section 8.4. FLEET AND AFFILIATES. With respect to the Term Loan and its
Commitment and the Revolving Loans made by it, the Agent shall have the same
rights and powers with respect to this Agreement, the Term Notes and 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
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<PAGE>
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.
(v) SECTION 9.1 of the Existing Credit Agreement is hereby deleted
and replaced with the following:
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 Term Loan Maturity Date, extending the Revolving
Loan Termination Date (except as expressly provided for herein), extending the
time of payment of principal, interest or fees on the Term Loan or any Revolving
Loans or reducing or forgiving the principal amount thereof (other than by
repayment), decreasing the interest rate borne by the Term Loan or 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.
(w) SECTION 9.2 of the Existing Credit Agreement is hereby deleted
and replaced with the following:
Section 9.2. USURY. Anything herein to the contrary notwithstanding, the
Obligations of the Borrower with respect to this Agreement, the Term Notes 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 be contrary to
provisions of law applicable to the Banks limiting rates of interest which may
be charged or collected by the Banks.
(x) SECTION 9.3(c) of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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<PAGE>
(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, 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 Term Loan
or 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).
(y) SECTION 9.4 of the Existing Credit Agreement is hereby deleted
and replaced with the following:
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 Term Loan,
the repayment of the Revolving Loans and the termination of the Commitment of
each Bank.
(z) SECTION 9.5(a) of the Existing Credit Agreement is hereby
deleted and replaced with the following:
(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 the amounts under the
Term Loan owing to it, 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 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 $2,500,000 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
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<PAGE>
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.)
(aa) SECTION 9.5(c) of the Existing Credit Agreement is hereby
deleted and replaced with the following:
(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, and
the principal amount of the Term Loan 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.
(bb) SECTION 9.5(e) of the Existing Credit Agreement is hereby
deleted and replaced with the following:
(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 the Term Loan owing
to it, 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, any Term Note or any Revolving Note, except with
respect to an extension of the final maturity of Term Loan, 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 Term Loan or the Revolving Loans or any
fees related thereto.
(cc) SECTION 9.12 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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<PAGE>
Section 9.12. INTEGRATION. This Agreement, the Term Notes, 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.
(dd) SECTION 9.16 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
Section 9.16. REPLACEMENT TERM NOTE OR 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 Term Note or 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 Term Note, Revolving
Note or other security document, the Borrower will issue, in lieu thereof, a
replacement Term Note, Revolving Note or other security document in the same
principal amount thereof and otherwise of like tenor.
(ee) SECTION 9.17 of the Existing Credit Agreement is hereby
deleted and replaced with the following:
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 TERM NOTES, 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.
(ff) SCHEDULE 1.1 ("Commitments and Lending Offices") to the
Existing Credit Agreement is hereby deleted and replaced with Schedule 1.1
hereto.
(gg) EXHIBIT C ("Officer's Certificate") to the Existing Credit
Agreement is hereby deleted and replaced with Exhibit C hereto.
(hh) EXHIBIT E ("Acceptance and Assignment") to the Existing Credit
Agreement is hereby deleted and replaced with Exhibit E hereto.
(ii) EXHIBIT K hereto ("Term Note") is added to the Existing Credit
Agreement as Exhibit K thereto.
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<PAGE>
(jj) EXHIBIT L hereto ("Term Loan Eurodollar Election") is added to
the Existing Credit Agreement as Exhibit L thereto.
Section 1.2 CONDITIONS OF EFFECTIVENESS. This First Amendment shall become
effective as of June 30, 2000 (the "Amendment Effective Date") when, and only
if, the Agent shall have received on or before July 20, 2000 (the "Closing
Date") a counterpart of this First Amendment executed by the Borrower and the
Banks and the following other conditions shall have been satisfied on or before
said date:
(a) Fleet shall have received a duly completed and executed
Revolving Note of the Borrower in the amount of Fleet's Commitment in the form
of EXHIBIT A to the Existing Credit Agreement, and a duly completed and executed
Term Note of the Borrower in the amount of $8,621,627.50 in the form of EXHIBIT
L hereto;
(b) Union Bank shall have received a duly completed and executed
Revolving Note of the Borrower in the amount of Union Bank's Commitment in the
form of EXHIBIT A to the Existing Credit Agreement, and a duly completed and
executed Term Note of the Borrower in the amount of $5,878,372.50 in the form of
EXHIBIT L hereto;
(c) the Agent shall have received (with a copy for each of the
Banks) a certificate of a Senior Officer of the Borrower dated the Closing Date
and stating that:
(i) the representations and warranties contained in Article
4 of the Existing Credit Agreement and in the other Loan Documents are correct
on and as of the date of such certificate 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);
(ii) no Event of Default or Default has occurred and is
continuing or would result from the signing of this First Amendment or the
transactions contemplated hereby; and
(iii) there has been no material adverse change in the
financial conditions, operations, Properties, business or business prospects of
the Borrower and its Subsidiaries, since December 31, 1999, the date of the last
audited financial statements furnished to the Agent;
(d) the Agent shall have received amendments to each of the Security
Documents extending the security interest granted thereby to the indebtedness
owned under the Term Notes;
(e) the Agent shall have received the executed legal opinion of Rich,
May, Bilodeau & Flaherty, P.C., counsel to the Borrower, in a form acceptable to
the Agent and its special counsel;
(f) the Agent shall have received copies of any amendments to the
articles of incorporation and by-laws of the Borrower and each Subsidiary, which
have been authorized or became effective since February 28, 2000, certified as
complete and correct copies thereof by the Secretary or an Assistant Secretary
of the Borrower or such Subsidiary, as applicable;
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<PAGE>
(g) the Agent shall have received a copy of the resolutions, in form and
substance satisfactory to the Agent, of the Board of Directors of the Borrower,
authorizing the execution, delivery and performance by the Borrower of this
First Amendment and the amendments to the Security Documents to which the
Borrower is a party, certified by the Secretary or an Assistant Secretary of the
Borrower, which certificate shall be dated the Closing Date and shall state that
the resolutions thereby certified have not been amended, modified, revoked or
rescinded, and a copy of the resolutions, in form and substance satisfactory to
the Agent, of each of Board of Directors of each Subsidiary, authorizing the
execution, delivery and performance of the amendments to the Security Documents,
which certificate shall be dated the Closing Date and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded;
(h) all corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this First
Amendment 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;
(i) Fleet shall have received payment of an amendment fee in the amount
set forth in a letter agreement dated as of June 30, 2000 between Fleet and the
Borrower; and
(j) Union Bank shall have received payment of an amendment fee in the
amount set forth in a letter agreement dated as of June 30, 2000 between Fleet
and the Borrower; and
(k) Day, Berry & Howard LLP, special counsel to the Agent and Fleet,
shall have received payment of its legal fees and disbursements relating to this
First Amendment.
Section 1.3 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents as follows:
(a) The execution, delivery and performance by the Borrower of this
First Amendment and the amendments to the Security Documents to which the
Borrower 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 certificate 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.
(b) The representations and warranties contained in Article 4 of the
Existing Credit Agreement, as amended by this First Amendment, are correct in
all material respects on and as of the Closing Date as though made on and as of
the Closing Date.
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(c) No Event of Default or Default has occurred and is continuing or
would result from the signing of this First Amendment or the transactions
contemplated hereby.
(d) There has been no material adverse change in the financial
condition, operations, Properties, business or business prospects of the
Borrower and its Subsidiaries, if any, since the date of the last financial
statements furnished to the Agent.
(e) No actions, suits or proceedings or investigations are pending or,
as far as the Borrower can reasonably foresee, threatened against or affecting
the Borrower or any Subsidiary, or any Property of any of them before any court,
governmental agency or arbitrator, which if determined adversely to the Borrower
or any Subsidiary would in any one case or in the aggregate have a Materially
Adverse Effect.
(f) No information, exhibit or report furnished in writing by or on
behalf of the Borrower or any officer or director of the Borrower to the Agent
in connection with the negotiation of, or pursuant to the terms of this First
Amendment, contained when made any material misstatement of fact or omitted to
state a material fact necessary to make the statements contained therein not
misleading.
Section 1.4 Reference to and Effect on the Existing Credit Agreement.
(a) Upon the effectiveness of this First Amendment, on and after the
date hereof, each reference in the Existing Credit Agreement to "this Credit
Agreement", "hereunder", "hereof", "herein" or words of the like import shall
mean and be a reference to the Existing Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Existing Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this First Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Agent or the Banks under the Existing Credit
Agreement, nor constitute a waiver of any provision of the Existing Credit
Agreement.
Section 1.5 COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses of the Agent and the Banks in connection with the
preparation, execution and delivery of this First Amendment including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent and Fleet with respect thereto.
Section 1.6 EXECUTION IN COUNTERPARTS. This First Amendment may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
Section 1.7 GOVERNING LAW. This First Amendment shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts.
Section 1.8 DEFINED TERMS. Capitalized terms used herein which are not
expressly defined herein shall have the meanings ascribed to them in the
Existing Credit Agreement.
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Section 1.9 CANCELLATION OF EXISTING NOTES. Upon receipt of the Revolving
Notes and the Term Notes described in Section 1.2(a) and (b) hereof, the Banks
shall return to the Borrower the Revolving Notes previously delivered to them
pursuant to the Existing Credit Agreement (the "Existing Revolving Notes"), and
such Existing Revolving Notes shall be marked "CANCELLED."
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CORE, INC.
By /s/ William E. Nixon
------------------------------------------
Name: William E. Nixon
Title: EVP & CFO
FLEET NATIONAL BANK, AS AGENT
By /s/ Holly A. O'Neill
------------------------------------------
Name: Holly A. O'Neill
Title: Bank Officer
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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