FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 For the quarterly period ended September 30, 1999
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 For the transition period from ________ to ___________
Commission file number: 0-24484
Modis Professional Services, Inc.
(Exact name of Registrant as specified in its charter)
Florida 59-3116655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Independent Drive
Jacksonville, Florida
32202
(Address of principal executive offices) (Zip code)
(904) 360-2000
(Registrant's telephone
number including area code)
Indicate by check mark 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 ____
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date. October 29, 1999.
Common Stock, $0.01 par value Outstanding: 96,040,657 (No. of shares)
<PAGE>
FORWARD LOOKING STATEMENTS
This report on Form 10-Q contains forward-looking statements, including but not
limited to all of the information under Part I, Item 3, under 'Quantitative and
Qualitative Disclosures About Market Risk' (except for historical data). These
forward-looking statements are subject to risks, uncertainties or assumptions
and may be affected by other factors, including but not limited to: the matters
discussed in Part I, Item 2, under 'Three months ended September 30, 1999
compared to three months ended September 30, 1998 - Revenue,' and under 'Nine
months ended September 30, 1999 compared to nine months ended September 30, 1998
- - Revenue,' under Part 1, Item 2 'Other Matters - Year 2000 Compliance,' under
Part 1, Item 2 'Factors Which May Impact Future Results and Financial
Information,' fluctuations in the economy and financial markets in general and
in the Company's industry in particular, industry trends towards consolidating
vendor lists, the demand for the Company's services, including the impact of
changes in utilization rates and effects of the Year 2000 on spending for
non-Year 2000 related items, consolidation of major customers, the effect of
competition, including the Company's ability to expand into new markets and to
maintain profit margins in the face of pricing pressures and wage inflation, the
Company's ability to retain significant existing customers or obtain new
customers, the Company's ability to recruit, place and retain consultants and
professional employees, the Company's ability to identify and complete
acquisition targets and to successfully integrate acquired operations into the
Company, possible changes in governmental regulations affecting the Company's
operations, including possible changes to regulations relating to benefits for
consultants and temporary personnel, unexpected fluctuations in interest rates
or foreign currency exchange rates, exposure to Year 2000 liability from the
Company's Year 2000 remediation and other IT services, loss of key employees,
the ability of the Company to successfully complete its previously announced
Integration and Strategic Repositioning Plan, and other factors discussed in the
Company's previous filings with the Securities and Exchange Commission under the
Securities Exchange Act of 1934. Should one or more of these risks,
uncertainties or other factors materialize, or should underlying assumptions
prove incorrect, actual results, performance or achievements of the Company may
vary materially from any future results, performance or achievements expressed
or implied by the forward-looking statements. Forward-looking statements are
based on beliefs and assumptions of the Company's management and on information
then currently available to management. Forward-looking statements speak only as
of the date they are made, and the Company undertakes no obligation to update
publicly any of them in light of new information or future events. Undue
reliance should not be placed on such forward-looking statements.
Forward-looking statements are not guarantees of performance.
<PAGE>
<TABLE>
<CAPTION>
Modis Professional Services, Inc. and Subsidiaries
Index
<S> <C> <C>
Part I Financial Information
Item 1 Financial Statements
Condensed Consolidated Balance Sheets as of September 30, 1999 and December 31, 1998................... 3
Condensed Consolidated Statements of Income for the Three and Nine Months
ended September 30, 1999 and 1998.................................................................. 4
Condensed Consolidated Statements of Cash Flows for the Nine Months ended September 30, 1999 and 1998.. 5
Notes to Condensed Consolidated Financial Statements................................................... 6
Item 2 Management's Discussion and Analysis of Financial Condition and Results of Operations.................. 10
Item 3 Quantitative and Qualitive Disclosure About Market Risks............................................... 21
Part II Other Information
Item 1 Legal Proceedings...................................................................................... 24
Item 2 Changes in Securities and Use of Proceeds.............................................................. 24
Item 3 Defaults Upon Senior Securities........................................................................ 24
Item 4 Submission of Matters to a Vote of Security Holders.................................................... 24
Item 5 Other Information...................................................................................... 24
Item 6 Exhibits and Reports on Form 8-K....................................................................... 24
Signatures............................................................................................. 25
Exhibits
</TABLE>
2
<PAGE>
Part I. Financial Information
Item 1. Financial Statements
Modis Professional Services, Inc. and Subsidiaries
Condensed Consolidated Balance Sheets
(dollar amounts in thousands except per share amounts)
<TABLE>
<CAPTION>
September 30, 1999 December 31, 1998
------------------- -------------------
(unaudited)
Assets
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 24,941 $ 105,816
Accounts receivable, net 383,379 327,185
Prepaid expenses 9,239 11,219
Deferred income taxes 13,393 16,858
Other 10,418 28,460
------------------- -------------------
Total current assets 441,370 489,538
Furniture, equipment and leasehold improvements, net 41,977 37,577
Goodwill, net 1,082,716 1,025,240
Other assets 18,467 19,526
------------------- -------------------
Total assets $ 1,584,530 $ 1,571,881
=================== ===================
Liabilities and Stockholders' Equity
Current liabilities:
Notes payable $ 6,217 $ 15,988
Accounts payable and accrued expenses 69,152 396,568
Accrued payroll and related taxes 76,642 60,844
------------------- -------------------
Total current liabilities 152,011 473,400
Notes payable, long-term portion 244,819 15,525
Deferred income taxes 18,959 12,846
------------------- -------------------
Total liabilities 415,789 501,771
------------------- -------------------
Commitments and contingencies
Stockholders' equity:
Preferred stock, $.01 par value; 10,000,000 shares authorized;
no shares issued and outstanding - -
Common stock, $.01 par value; 400,000,000 shares authorized
96,031,850 and 96,306,323 shares issued and outstanding on
September 30, 1999 and December 31, 1998, respectively 960 963
Additional contributed capital 582,270 563,728
Retained earnings 585,782 504,899
Accumulated other comprehensive income (271) 520
------------------- -------------------
Total stockholders' equity 1,168,741 1,070,110
------------------- -------------------
Total liabilities and stockholders' equity $ 1,584,530 $ 1,571,881
=================== ===================
See accompanying notes to condensed consolidated financial statements.
</TABLE>
3
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<TABLE>
<CAPTION>
Modis Professional Services, Inc. and Subsidiaries
Condensed Consolidated Statements of Income
(unaudited)
(dollar amounts in thousands except per share amounts)
Three Months Ended Nine Months Ended
------------------------------- -------------------------------
(unaudited) (unaudited) (unaudited) (unaudited)
September 30, September 30, September 30, September 30,
1999 1998 1999 1998
------------- ------------- -------------- -------------
<S> <C> <C> <C> <C>
Revenue $ 500,062 $ 441,580 $ 1,484,607 $ 1,241,455
Cost of Revenue 362,229 320,880 1,081,629 898,502
------------- ------------- -------------- -------------
Gross Profit 137,833 120,700 402,978 342,953
------------- ------------- -------------- -------------
Operating expenses:
General and administrative 79,034 69,464 238,232 189,862
Depreciation and amortization 11,403 10,053 33,293 26,925
Restructuring charge (3,250) - (3,250) -
Asset write-down related to sale of
discontinued operations 25,000 - 25,000 -
------------- ------------- -------------- -------------
Total operating expenses 112,187 79,517 293,275 216,787
------------- ------------- -------------- -------------
Income from operations 25,646 41,183 109,703 126,166
------------- ------------- -------------- -------------
Other income (expense):
Interest expense (3,800) (7,581) (7,860) (21,620)
Interest income and other, net 860 1,915 3,784 5,424
------------- ------------- -------------- -------------
Total other income (expense) (2,940) (5,666) (4,076) (16,196)
------------- ------------- -------------- -------------
Income from continuing operations before
provision for income taxes 22,706 35,517 105,627 109,970
Provision for income taxes 6,969 13,496 39,701 41,718
------------- ------------- -------------- -------------
Income from continuing operations 15,737 22,021 65,926 68,252
Income from discontinued operations, net of
income taxes - 6,907 - 30,020
Gain on sale of discontinued operations,
net of income taxes 14,955 216,365 14,955 216,365
------------- ------------- -------------- -------------
Net income $ 30,692 $ 245,293 $ 80,881 $ 314,637
============= ============= ============== =============
Basic income per common share:
from continuing operations $ 0.16 $ 0.20 $ 0.68 $ 0.63
============= ============= ============== =============
from discontinued operations $ - $ 0.06 $ - $ 0.28
============= ============= ============== =============
from gain on sale of discontinued operations $ 0.16 $ 1.94 $ 0.16 $ 1.98
============= ============= ============== =============
Basic net income per common share $ 0.32 $ 2.20 $ 0.84 $ 2.89
============= ============= ============== =============
Diluted income per common share:
from continuing operations $ 0.16 $ 0.19 $ 0.68 $ 0.59
============= ============= ============== =============
from discontinued operations $ - $ 0.06 $ - $ 0.25
============= ============= ============== =============
from gain on sale of discontinued operations $ 0.15 $ 1.79 $ 0.15 $ 1.80
============= ============= ============== =============
Diluted net income per common share $ 0.31 $ 2.04 $ 0.83 $ 2.64
============= ============= ============== =============
Average common shares outstanding, basic 96,313 111,412 96,252 109,085
============= ============= ============== =============
Average common shares outstanding, diluted 97,693 120,875 97,090 119,921
============= ============= ============== =============
See accompanying notes to consolidated financial statements.
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Modis Professional Services, Inc. and Subsidiaries
Condensed Consolidated Statements of Cash Flows
(dollar amounts in thousands except for per share amounts)
Nine Months Ended
-------------------------------
September 30, September 30,
1999 1998
(unaudited) (unaudited)
--------------- ---------------
<S> <C> <C>
Cash flows from operating activities:
Income from continuing operations $ 65,926 $ 68,252
Adjustments to income from continuing operations to net
cash provided by (used in) operating activities:
Restructuring and impairment charges (3,250) -
Depreciation and amortization 33,293 26,925
Asset write-down related to sale of
discontinued operations 25,000 -
Deferred income taxes 9,450 4,155
Changes in certain assets and liabilities:
Accounts receivable (42,224) (78,396)
Prepaid expenses and other assets 2,311 (11,876)
Accounts payable and accrued expenses (55,938) 3,018
Accrued payroll and related taxes 16,710 12,020
Other, net 1,964 157
--------------- ---------------
Net cash provided by operating activities 53,242 24,255
--------------- ---------------
Cash flows from investing activities:
Purchase of furniture, equipment and leasehold
improvements, net of disposals (13,230) (15,590)
Purchase of businesses, including additional earn-outs on
acquisitions, net of cash acquired (147,515) (135,111)
Income taxes and other cash expenses related to sale of
net assets of discontinued commercial operations (191,409) -
Advances associated with sale of assets of discontinued
health care operations, net of repayments (8,224) (12,382)
--------------- ---------------
Net cash used in investing activities (360,378) (163,083)
--------------- ---------------
Cash flows from financing activities:
Repurchases of common stock, net of refunds 11,871 -
Proceeds from stock options exercised 3,669 45,073
Borrowings on indebtedness 422,000 299,009
Repayments on indebtedness (209,196) (174,538)
Other - (357)
--------------- ---------------
Net cash provided by financing activities 228,344 169,187
--------------- ---------------
Effect of exchange rate changes on cash and cash equivalents (2,083) -
Net decrease in cash and cash equivalents (80,875) 30,359
Cash provided by discontinued operations - 26,475
Cash and cash equivalents, beginning of period 105,816 23,938
--------------- ---------------
Cash and cash equivalents, end of period $ 24,941 $ 80,772
=============== ===============
Supplemental noncash investing information:
During the first quarter of 1998, the Company issued 4,598,698 shares of its
common stock, with a fair value of $130,000 in exchange for all the outstanding
common stock of Actium, Incorporated.
See accompanying notes to condensed consolidated financial statements.
</TABLE>
5
<PAGE>
Modis Professional Services, Inc. and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
(dollar amounts in thousands except for per share amounts)
1. Basis of Presentation.
The accompanying condensed consolidated financial statements are unaudited and
have been prepared by the Company in accordance with the rules and regulations
of the Securities and Exchange Commission ("SEC"). Accordingly, certain
information and footnote disclosures usually found in financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted. The financial statements should be read in conjunction
with the consolidated financial statements and related notes included in the
Company's Form 10-K, as filed with the SEC on March 31, 1999.
The accompanying consolidated financial statements reflect all adjustments
(including normal recurring adjustments) which, in the opinion of management,
are necessary to present fairly the financial position and results of operations
for the interim periods presented. The results of operations for an interim
period are not necessarily indicative of the results of operations for a full
fiscal year.
2. Restructuring of Operations
In December 1998, the Company's Board of Directors approved an Integration and
Strategic Repositioning Plan (the "Plan") to strengthen the overall
profitability of the Company by implementing a back office integration program
and branch repositioning plan in an effort to consolidate or close branches
whose financial performance did not meet the Company's expectations. Pursuant to
the Plan, during the fourth quarter of 1998 the Company recorded a restructuring
and impairment charge of $34,759. The restructuring component of the Plan is
based, in part, on the evaluation of objective evidence of probable obligations
to be incurred by the Company or impairment of specifically identified assets.
The Plan calls for the consolidation or closing of 23 Professional Services
division branches, certain organizational improvements and the consolidation of
15 back office operations. This restructuring, which will result in the
elimination of approximately 290 positions, will be completed over a 12- to
18-month period, which began during the first quarter of 1999.
The major components of the restructuring and impairment charge include:(1)
costs of $7,494 to recognize severance and related benefits for the
approximately 290 employees to be terminated. The severance and related benefit
accruals are based on the Company's severance plan and other contractual
termination provisions. These accruals include amounts to be paid to employees
upon termination of employment. Prior to December 31, 1998, management had
approved and committed the Company to a plan that involved the involuntary
termination of certain employees. The benefit arrangements associated with this
plan were communicated to all employees in December 1998. The plan specifically
identified the number of employees to be terminated and their job
classifications; (2) costs of $2,476 to write down certain furniture, fixtures
and computer equipment to net realizable value at branches not performing up to
the Company's expectations; (3) costs of $9,936 to write down goodwill
associated with the acquisition of Legal Information Technology, Inc. which was
acquired in January 1997, calculated in accordance with Statement of Financial
Accounting Standards (SFAS) No. 121 in the fourth quarter of 1998; (4) costs of
$8,035 to terminate leases and other exit and shutdown costs associated with the
consolidated or closed branches, including closing the facilities; and (5) costs
of $6,818 to adjust accounts receivable due to the expected increase in bad
debts which results directly from the termination or change in client
relationships which results when branch and administrative employees, who have
the knowledge to effectively pursue collections, are terminated. These costs are
based upon management's best estimates. Based on efficiencies and lease
termination activities, the Company reduced the reserve for lease payments on
cancelled facility leases by $3,250 in the third quarter of 1999.
6
<PAGE>
The following table summarizes the restructuring activity through September 30
1999 (in millions):
<TABLE>
<CAPTION>
Payments To Write-Down Of Payments On
Employees Certain Property, Cancelled Write-Down Of
Involuntarily Plant and Facility Certain
Terminated (a) Equipment (b) Leases (a) Receivables (b) Total
----------------- ------------------ ---------------- ------------------ ---------------
<S> <C> <C> <C> <C> <C>
Balances as of
December 31, 1998 $ 7,494 $ 2,476 $ 8,035 $ 6,818 $ 24,823
Charges during the
three months ended
March 31, 1999 (1,959) (125) (308) - (2,392)
Charges during the
three months ended
June 30, 1999 (2,439) (1,876) (573) (990) (5,878)
Charges and write-down
during the three
months ended
September 30, 1999 (2,485) (238) (1,140) (1,910) (5,773)
Adjustment to estimated
payments on cancelled
facility leases - - (3,250)(b) - (3,250)
------- ------- ------- ------- -------
Balances as of
September 30, 1999 $ 611 $ 237 $ 2,764 $ 3,918 $ 7,530
======= ======= ======= ======= =======
(a): Cash; (b): Noncash
</TABLE>
As of September 30, 1999, the $7,530 balance in the restructuring accrual was
included in the balance sheet caption 'Accounts payable and accrued expenses'.
3. Segment Reporting
The Company discloses segment information in accordance with SFAS No. 131,
'Disclosure About Segments of an Enterprise and Related Information,' which
requires companies to report selected segment information on a quarterly basis
and to report certain entity-wide disclosures about products and services, major
customers, and the material countries in which the entity holds assets and
reports revenues.
The Company has two reportable segments: information technology and professional
services. The Company's reportable segments are strategic business units that
offer different services and are managed separately as each business unit
requires different resources and marketing strategies. The information
technology segment provides computer related consulting services. The
professional services segment provides personnel who perform specialized
services such as accounting, legal, technical, outplacement and scientific.
Discontinued operations of the Company are not contained within the scope of
this footnote.
The accounting policies of the segments are consistent with those described in
the summary of significant accounting policies in Note 2 to the Consolidated
Financial Statements on Form 10-K filed with the SEC on March 31, 1999 and all
intersegment sales and transfers are eliminated.
No one customer represents more than 5% of the Company's overall revenue.
Therefore, the Company does not believe it has a material reliance on any one
customer as the Company is able to provide services to numerous Fortune 1000 and
other leading businesses.
The Company evaluates segment performance based on revenues, gross margin and
pre-tax income from continuing operations. The Company does not allocate income
taxes or unusual items to the segments. The following table summarizes segment
and geographic information:
7
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
------------------------------- --------------------------------
September 30, September 30, September 30, September 30,
1999 1998 1999 1998
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue
IT $ 345,189 $ 300,994 $ 1,043,645 $ 846,707
Professional 154,873 140,586 440,962 394,748
------------ ------------ ------------ ------------
Total Revenue $ 500,062 $ 441,580 $ 1,484,607 $ 1,241,455
============ ============ ============ ============
Gross Profit
IT $ 86,218 $ 78,498 $ 257,310 $ 221,953
Professional 51,615 42,202 145,668 121,000
------------ ------------ ------------ ------------
Total Gross Profit $ 137,833 $ 120,700 $ 402,978 $ 342,953
============ ============ ============ ============
Pre-tax Income from Continuing Operations
IT $ 14,679 $ 25,300 $ 73,012 $ 78,682
Professional 8,027 10,217 32,615 31,288
------------ ------------ ------------ ------------
Total Pre-tax Income from
Continuing Operations $ 22,706 $ 35,517 $ 105,627 $ 109,970
============ ============ ============ ============
Geographic Areas
Revenues
United States $ 375,474 $ 381,242 $ 1,137,094 $ 1,078,223
U.K. 120,283 55,494 331,945 147,439
Other 4,305 4,844 15,568 15,793
------------ ------------ ------------ ------------
Total $ 500,062 $ 441,580 $ 1,484,607 $ 1,241,455
============ ============ ============ ============
September 30, December 31,
-------------------------------
1999 1998
- ----------------------------------------------------------------------------------------------
Assets
IT $ 1,035,040 $ 1,043,722
Professional 411,530 394,563
------------ ------------
1,446,570 1,438,285
Corporate 137,960 133,596
------------ ------------
Total Assets $ 1,584,530 $ 1,571,881
============ ============
Geographic Areas
Identifiable Assets
United States $ 1,170,978 $ 1,222,821
U.K. 407,907 345,182
Other 5,645 3,878
------------ ------------
Total $ 1,584,530 $ 1,571,881
============ ============
</TABLE>
8
<PAGE>
4. Comprehensive Income
The Company discloses other comprehensive income in accordance with SFAS No.
130, 'Reporting Comprehensive Income'. A summary of comprehensive income for the
three and nine months ended September 30, 1999 and 1998 is as follows:
<TABLE>
<CAPTION>
Foreign
Currency Total
Net Translation Comprehensive
Three Months Ended, Income Adjustments Income
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C>
September 30, 1998 $ 245,293 $ 1,335 $ 246,628
September 30, 1999 $ 30,692 $ 3,389 $ 34,081
</TABLE>
<TABLE>
Foreign
Currency Total
Net Translation Comprehensive
Nine Months Ended, Income Adjustments Income
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C>
September 30, 1998 $ 314,637 $ 2,041 $ 316,678
September 30, 1999 $ 80,881 $ (791) $ 80,090
</TABLE>
The currency translation adjustments are not adjusted for income taxes as they
relate to indefinite investments in non-U.S. subsidiaries.
9
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
During fiscal 1998, the Company sold its assets that were unrelated to its
Information Technology and Professional Services divisions. Effective March 30,
1998, the Company sold the Health Care division for consideration of $8.0
million, consisting of $3.0 million in cash and $5.0 million in a note
receivable due March 30, 2000 bearing interest at 2% in excess of the prime
rate. In addition, the Company retained the accounts receivable of the Health
Care division of approximately $28.2 million. On September 27, 1998, the Company
sold its Commercial operations and its Teleservices division for $850 million,
prior to any purchase price adjustments, for cash.
As a result of these transactions, the Company's Consolidated Financial
Statements and Management's Discussion and Analysis of Financial Condition and
Results of Operations have been reclassified to report the results of operations
of its Commercial, Teleservices and Health Care divisions as discontinued
operations for all periods presented.
The following detailed analysis of operations should be read in conjunction with
the 1998 Financial Statements and related notes included in the Company's Form
10-K filed on March 31, 1999.
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 1998
Results from Continuing Operations
Revenue. Revenue increased $58.5 million, or 13.2%, to $500.1 million in the
three months ended September 30, 1999, from $441.6 million in the year earlier
period. The increase was attributable by division to: Information Technology,
$44.2 million or an increase of 14.7%, and Professional Services, $14.3 million
or an increase of 10.2%. The increases in the Information Technology and
Professional Services divisions were due to both internal growth and to the
revenues of acquired companies. The revenue for the Company's Information
Technology division is obtained through the modis Solutions and modis Consulting
business units. modis Solutions provided approximately 32.8% and 29.2% of the
division's revenue for the three months ended September 30, 1999 and 1998, as
compared to 67.2% and 70.8% which was provided by the division's modis
Consulting unit during the same respective periods. The Company plans to
continue to expand the percentage of revenue contributed through its modis
Solutions unit as it expands that unit's offerings throughout the offices of the
modis Consulting unit through various cross-selling efforts.
Management has observed a current trend in the industry which may possibly
enhance the effectiveness of its strategy. This trend involves the movement of
large users of IT services to larger national and international providers of IT
services. The Company has seen a trend among large national and international
customers towards scaled-back, preferred vendor lists for supplying IT services.
The Company believes it is well positioned as one of the companies which can
successfully offer services to these customers and achieve selection as a
preferred provider. Approximately 3.2% of the Information Technology division's
total revenue is derived from two United Kingdom customers. If these or other
customers reduce spending on IT services or exclude the Company from their
vendor lists, then the fiscal 1999 IT division revenues may experience a
decrease if the revenue associated with such customers cannot be replaced.
During the three month period ended September 30, 1999, revenue was negatively
effected by reduced spending on non year 2000 items. During this period,
customers have begun to focus their IT efforts on testing and implementing
legacy systems which have undergone year 2000 remediation. Management expects
this year 2000 effect to extend into the fourth quarter of 1999 and, to some
extent, the first quarter of 2000.
The Company's Professional Services division consists of the accounting and
finance, legal, technical and engineering, career management and consulting and
scientific units which contributed 38.9%, 13.2%, 33.5%, 9.5% and 4.9%,
respectively, of the Professional Services division's revenues by group during
the three months ended September 30, 1999 as compared to 34.0%, 17.3%, 33.5%,
8.8% and 6.4%, respectively, during the year earlier period.
10
<PAGE>
Gross Profit. Gross profit increased $17.1 million, or 14.2%, to $137.8 million
in the three months ended September 30, 1999, from $120.7 million in the year
earlier period. Gross margin increased to 27.6% from 27.3% for the same
respective periods. The gross margin in the IT division decreased from 26.1% to
25.0% for the three months ended September 30, 1998 and 1999, respectively. The
overall decrease in the IT division's gross margin was mainly due to the
increased percentage of the Information Technology division's revenues generated
by the U.K. operations, which generally contribute a lower gross margin
percentage. In addition, as the division's Consulting Unit increases the amount
of revenue generated as a result of Preferred Vendor relationships, certain
gross margin concessions may be made in exchange for an increase in overall
gross profit. The gross margin in the Professional Services division increased
to 33.3% in the three months ended September 30, 1999 from 30.0% in the year
earlier period.
Operating Expenses. Operating expenses increased $32.7 million, or 41.1%, to
$112.2 million in the three months ended September 30, 1999, from $79.5 million
in the year earlier period. Operating expenses, before one-time income items, as
a percentage of revenue remained relatively constant at 18.1% in the three
months ended September 30, 1999, as compared to 18.0% in the year earlier
period. In the third quarter of 1999, the Company was informed by the purchaser
of its health care operations that the purchaser was going to default on its
obligation to the Company. This default was due to the purchaser's decision to
discontinue its efforts to refinance their indebtedness to the Company and to
subsequently exit the business. As a result, the Company recorded a charge of
$25.0 million related to the impairment of an asset (notesrecievable) generated
from the sale of the Company's discontinued health care operations due to a
change in the estimate of the recoverability of the collateral securing the
asset. See 'LIQUIDITY AND CAPITAL RESOURCES' below. In addition, the Company
reduced the lease component of the restructuring and impairment charge $3.3
million as a result of the Company not experiencing the expected levels of
payments on cancelled facility leases relating to the closing of Professional
Services divison branches and the consolidation of back office operations.
Additionally, the Company's general and administrative ("G&A") expenses
increased $9.5 million or 13.7% to $79.0 million in the three months ended
September 30, 1999, from $69.5 million in the year earlier period. The increase
in G&A expenses was primarily related to the effects of acquisitions made by the
Company, internal growth of operating companies post-acquisition, investments
made to improve infrastructure and to develop technical practices and increased
expenses at the corporate level to support the growth of the Company, including
sales, marketing and brand recognition. Included in G&A expenses during both the
three months ended September 30, 1999 and 1998 are the costs associated with
projects underway to ensure accurate date recognition and data processing with
respect to Year 2000 as it relates to the Company's business, operations,
customers and vendors. These costs have been immaterial to date and are not
expected to have a material impact on the Company's results of operations,
financial condition or liquidity in the future. See 'OTHER MATTERS - Year 2000
Compliance' below.
Income from Operations. Income from operations decreased $15.6 million, or
37.9%, to $25.6 million in the three months ended September 30, 1999, from $41.2
million in the year earlier period. Income from operations before one-time
income items increased $6.2 million or 15.0% to $47.4 million in the three
months ended September 30, 1999 from $41.2 million in the year earlier period.
Income from operations as a percentage of revenue decreased to 5.1% in the three
months ended September 30, 1999, from 9.3% in the year earlier period. Income
from operations, before one-time income items, as a percentage of revenue
increased to 9.5% in the three months ended September 30, 1999, from 9.3% in the
year earlier period.
Other Income (Expense). Interest expense decreased $3.8 million, or 50.0%, to
$3.8 million in the three months ended September 30, 1999, from $7.6 million in
the year earlier period. Interest expense was offset in the three months ended
September 30, 1999 by interest and other income of $0.9 million from (1)
investment income from certain investments owned by the Company and (2) interest
income earned from cash on hand at certain subsidiaries of the Company.
Income Taxes. The Company's effective tax rate was 30.7% in the three months
ended September 30, 1999, compared to 38.0% in the year earlier period. The
decrease in the effective tax rate was primarily due to the effect of foreign
tax credits resulting from tax strategies relating to foreign subsidiaries.
Income from Continuing Operations. As a result of the foregoing, income from
continuing operations decreased $6.3 million, or 28.6%, to $15.7 million in the
three months ended September 30, 1999, from $22.0 million in the year earlier
period. Income from continuing operations before one-time income items increased
$6.9 million, or 31.4%, to $28.9 million in the three months ended September 30,
1999, from $22.0 million in the year earlier period. Income from continuing
operations as a percentage of revenue decreased to 3.1% in the three months
ended September 30, 1999, from 5.0% in the year earlier period. Income from
continuing operations, before one-time income items, as a percentage of revenue
increased to 5.8% in the three months ended September 30, 1999, from 5.0% in the
year earlier period.
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Results from Discontinued Operations
Income from Discontinued Operations. Income from the discontinued commercial
operations, after tax, were $6.9 million for the three months ended September
30, 1998. Additionally, for the three months ended September 30, 1998, reported
revenues from discontinued operations were $287.8 million and operating income
for the discontinued operations were $ 13.0 million. Results of discontinued
operations include allocations of consolidated interest expense totaling $1.5
million for the three months ended September 30, 1998. The allocations were
based on the historic funding needs of the discontinued operations, including:
the purchases of property, plant and equipment, acquisitions, current income tax
liabilities and fluctuating working capital needs. Due to the sale of the
Commercial operations and Teleservices division on September 27, 1998, and the
sale of the Health Care division on March 30, 1998, the three months ended
September 30, 1999 results did not include any operations of the Commercial,
Teleservices or Health Care divisions. In the third quarter of 1999, the
Company, in conjunction with the purchaser of Strategix, finalized the joint
section 338(h)(10) election as required by the sales agreement. This final
allocation of the sales price resulted in an adjustment to the tax liability
recorded in discontinued operations from the sale of Strategix. As a result, the
Company has reduced its tax liability by approximately $14.9 million. This
adjustment increases the gain related to the sale of the discontinued commercial
operations and is reflected in the income statement line item 'Gain on sale of
discontinued operations'.
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NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO NINE MONTHS ENDED SEPTEMBER 30,
1998
From continuing operations
Revenue. Revenue increased $243.1 million, or 19.6%, to $1,484.6 million in the
nine months ended September 30, 1999 from $1,241.5 million in the year earlier
period. The increase was attributable by division to: Information Technology,
$196.9 million or an increase of 23.3%; and Professional Services, $46.2
million, or an increase of 11.7%. The increases in the Information Technology
and Professional Services divisions were due to both internal growth and to the
revenues of acquired companies. The revenue for the Company's Information
Technology division is obtained through the modis Solutions and modis Consulting
business units. modis Solutions provided approximately 32.2% and 26.5% of the
division's revenue for the nine months ended September 30, 1999 and 1998, as
compared to 67.8% and 73.5% which was provided by the division's modis
Consulting unit during the same respective periods. The Company plans to
continue to expand the percentage of revenue contributed through its modis
Solutions unit as it expands that unit's offerings throughout the offices of the
modis Consulting unit through various cross-selling efforts.
Management has observed a current trend in the industry which may possibly
enhance the effectiveness of its strategy. This trend involves the movement of
large users of IT services to larger national and international providers of IT
services. The Company has seen a trend among large national and international
customers towards scaled-back, preferred vendor lists for supplying IT services.
The Company believes it is well positioned as one of the companies which can
successfully offer services to these customers and achieve selection as a
preferred provider. Approximately 3.4% of the Information Technology division's
total revenue is derived from two United Kingdom customers. If these or other
customers reduce spending on IT services or exclude the Company from their
vendor lists, then the fiscal 1999 IT division revenues may experience a
decrease if the revenue associated with such customers cannot be replaced.
During the three month period ended September 30, 1999, revenue was negatively
effected by reduced spending on non year 2000 items. During this period,
customers have begun to focus their IT efforts on testing and implementing
legacy systems which have undergone year 2000 remediation. Management expects
this year 2000 effect to extend into the fourth quarter of 1999 and, to some
extent, the first quarter of 2000.
The Company's Professional Services division consists of the accounting and
finance, legal, technical and engineering, career management and consulting and
scientific units which contributed 38.4%, 13.6%, 32.7%, 10.1% and 5.2%,
respectively, of the Professional Services division's revenues by group during
the nine months ended September 30, 1999 as compared to 32.9%, 16.6%, 35.0%,
9.0% and 6.5%, respectively, during the year earlier period.
During the first quarter of 1999, the Company created and filled the position of
President and COO of the Professional Services division. This officer is
responsible for the operations of all business units of the Professional
Services division. The Company believes this position will create inertia to
improve the platform for better operational results throughout the entire
Professional Services division. Additionally, the Special Counsel unit of the
Professional Services division formed strategic alliance with International
Paper in the nine months ended September 30, 1999.
Gross Profit. Gross profit increased $60.0 million or 17.5% to $403.0 million in
the nine months ended September 30, 1999 from $343.0 million in the year earlier
period. Gross margin decreased to 27.1% in the nine months ended September 30,
1999 from 27.6% in the year earlier period. The gross margin in the IT division
decreased from 26.2% to 24.7% for the nine months ended September 30, 1998 and
1999, respectively. The overall decrease in the IT division's gross margin was
mainly due to the increased percentage of the Information Technology division's
revenues generated by the U.K. operations, which generally contribute a lower
gross margin percentage. In addition, as modis Consulting increases the amount
of revenue generated as a result of preferred vendor relationships, certain
gross margin concessions may be made in exchange for an increase in overall
gross profit. The gross margin in the Professional division increased to 33.0%
in the nine months ended September 30, 1999 from 30.7% in the year earlier
period.
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Operating Expenses. Operating expenses increased $76.5 million, or 35.3%, to
$293.3 million in the nine months ended September 30, 1999 from $216.8 million
in the year earlier period. Operating expenses, before one-time income items, as
a percentage of revenue increased to 18.3% in the nine months ended September
30, 1999 as compared to 17.5% in the year earlier period. In the third quarter
of 1999, the Company was informed by the purchaser of its health care operations
that the purchaser was going to default on its obligation to the Company. This
default was due to the purchaser's decision to discontinue its efforts to
refinance their indebtedness to the Company and to subsequently exit the
business. As a result, the Company recorded a charge of $25.0 million related to
the impairment of an asset (notes receivable)generated from the sale of the
Company's discontinued health care operations due to a change in the estimate of
the recoverability of the collateral securing the asset. See 'LIQUIDITY AND
CAPITAL RESOURCES' below. In addition, the Company adjusted the lease component
of the restructuring and impairment charge $3.3 million as a result of the
Company not experiencing the expected levels of payments on cancelled facility
leases relating to the closing of Professional Services divison branches and the
consolidation of back office operations. Additionally, the Company's general and
administrative ("G&A") expenses increased $48.3 million or 25.4% to $238.2
million in the nine months ended September 30, 1999, from $189.9 million in the
year earlier period. The increase in G&A expenses was primarily related to the
effects of acquisitions made by the Company, internal growth of operating
companies post-acquisition, investments made to improve infrastructure and to
develop technical practices and increased expenses at the corporate level to
support the growth of the Company, including sales, marketing and brand
recognition. Included in G&A expenses during both the nine months ended
September 30, 1999 and 1998 are the costs associated with projects underway to
ensure accurate date recognition and data processing with respect to Year 2000
as it relates to the Company's business, operations, customers and vendors.
These costs have been immaterial to date and are not expected to have a material
impact on the Company's results of operations, financial condition or liquidity
in the future. See 'OTHER MATTERS - Year 2000 Compliance' below.
Income from Operations. Income from operations decreased $16.5 million, or 13.1%
to $109.7 million in the nine months ended September 30, 1999 from $126.2
million in the year earlier period. Income from operations before one-time
income items increased $5.3 million, or 4.2% to $131.5 million in the nine
months ended September 30, 1999 from $126.2 million in the year earlier period.
Income from operations as a percentage of revenue decreased to 7.4% in the nine
months ended September 30, 1999 from 10.2% in the year earlier period. Income
from operations, before one-time income items, as a percentage of revenue
decreased to 8.9% in the nine months ended September 30, 1999 from 10.2% in the
year earlier period.
Other Income (Expense). Interest expense decreased $13.7 million, or 63.4%, to
$7.9 million in the nine months ended September 30, 1999, from $21.6 million in
the year earlier period. Interest expense was offset in the nine months ended
September 30, 1999 by interest and other income of $3.8 million from (1)
investment income from certain investments owned by the Company and (2) interest
income earned from cash on hand at certain subsidiaries of the Company. In
addition, immediately subsequent to the sale of the Company's Commercial
operations and Teleservices divisions in September 1998, the Company paid off
and terminated the Company's then existing credit facility. The new and
currently existing facility did not have a balance at December 31, 1998 and the
Company did not begin borrowing on the facility until late in the first quarter
of 1999.
Income Taxes. The Company's effective tax rate was 37.6% in the nine months
ended September 30, 1999, compared to 37.9% in the year earlier period. The
decrease in the effective tax rate was primarily due to the effect of foreign
tax credits recognized in the third quarter of 1999, resulting from tax
strategies relating to foreign subsidiaries.
Income from continuing operations. As a result of the foregoing, income from
continuing operations decreased $2.4 million, or 3.5%, to $65.9 million in the
nine months ended September 30, 1999 from $68.3 million in the year earlier
period. Income from continuing operations before one-time income items increased
$10.8 million, or 15.8%, to $79.1 million in the nine months ended September 30,
1999 from $68.3 million in the year earlier period. Income from continuing
operations as a percentage of revenue decreased to 4.4% in the nine months ended
September 30, 1999 from 5.5% in the year earlier period. Income from continuing
operations, before one-time income items, as a percentage of revenue decreased
to 5.3% in the nine months ended September 30, 1999 from 5.5% in the year
earlier period.
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From discontinued operations
Income from Discontinued Operations. Income from the discontinued commercial
operations, after tax, were $30.0 million for the nine months ended September
30, 1998. Additionally, for the nine months ended September 30, 1998, reported
revenues from discontinued operations were $919.4 million and operating income
for the discontinued operations were $ 54.2 million. Results of discontinued
operations include allocations of consolidated interest expense totaling $4.2
million for the nine months ended September 30, 1998. The allocations were based
on the historic funding needs of the discontinued operations, including: the
purchases of property, plant and equipment, acquisitions, current income tax
liabilities and fluctuating working capital needs. Due to the sale of the
Commercial operations and Teleservices division on September 27, 1998, and the
sale of the Health Care division on March 30, 1998, the six months ended
September 30, 1999 results did not include any operations of the Commercial,
Teleservices or Health Care divisions. In the third quarter of 1999, the
Company, in conjunction with the purchaser of Strategix, finalized the joint
section 338(h)(10) election as required by the sales agreement. This final
allocation of the sales price resulted in an adjustment to the tax liability
recorded in discontinued operations from the sale of Strategix. As a result, the
Company has reduced its tax liability by approximately $14.9 million. This
adjustment increases the gain related to the sale of the discontinued commercial
operations and is reflected in the income statement line item 'Gain on sale of
discontinued operations'.
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LIQUIDITY AND CAPITAL RESOURCES
The Company's capital requirements have principally related to the acquisition
of businesses, working capital needs and capital expenditures. These
requirements have been met through a combination of bank debt, issuances of
Common Stock and internally generated funds. The Company's operating cash flows
and working capital requirements are affected significantly by the timing of
payroll and by the receipt of payment from the customer. Generally, the Company
pays its Information Technology and Professional Services consultants
semi-monthly, and receives payments from customers within 30 to 80 days from the
date of invoice.
The Company had working capital of $289.4 million and $16.1 million as of
September 30, 1999 and December 31, 1998, respectively. The Company had cash and
cash equivalents of $24.9 million and $105.8 million as of September 30, 1999
and December 31, 1998, respectively. The principal reasons for the increase in
the Company's working capital is that included in current liabilities at
December 31, 1998 were (1) amounts related to determinable earn-out payments due
to the former owners of acquired companies and (2) a $175 million current tax
liability relating to the sale of its Commercial operations and Teleservices
division. The majority of these amounts were paid in the first quarter of fiscal
1999. The Company generated $53.2 million of cash flows from operations during
the nine months ended September 30, 1999 versus generating $24.3 million during
the same period in fiscal 1998. The cash flows from operations during the nine
months ended September 30, 1999 were off-set by cash expenditures related to the
Company's restructuring and repositioning plan $8.9 million. The increase in
cash flow from operations in the nine months ended September 30, 1999 is due to
the reduction in cash needed to fund accounts receivable and cash flows provided
from acquired companies.
The Company used $360.4 million for investing activities in the nine months
ended September 30, 1999 mainly as a result of the payment of the current tax
liability, net worth adjustment and certain transaction expenses relating to the
sale of the Company's Commercial operations and Teleservices division.
Additionally, the Company used $147.5 million for acquisitions and earn-out
payments and $8.2 million for capital expenditures. In the nine months ended
September 30, 1998, the Company used $163.1 million for investing activities, of
which $135.1 million was used for acquisitions and earn-out payments and $15.6
million was used for capital expenditures. For the nine months ended September
30, 1999, the Company did not pay any indemnification claims resulting from the
sale of the Company's Commercial, Teleservices and Health Care divisions in
1998. Although the Company has received certain claims for indemnification or
notices of possible claims pursuant to such obligations, the Company believes
that it has meritorious defenses against such claims and does not believe that
such claims, if successful, would have a material adverse effect on the
Company's financial condition or results of operations.
For the nine months ended September 30, 1999 and 1998, the Company generated
$228.3 million and $169.2 million of cash flows from financing activities,
respectively. For both the nine months ended September 30, 1999 and 1998, these
amounts primarily represent net borrowings from the Company's credit facility.
For the nine months ended September 30, 1999, these net borrowings were used
primarily to satisfy the current tax liability, net worth adjustment, business
acquisitions and related earn-outs, and certain transaction expenses relating to
the sale of the Company's Commercial operations and Teleservices division while
for the nine months ended September 30, 1998 these net borrowings were used
primarily to fund acquisitions and earn-out payments.
On October 31, 1998, the Company's Board of Directors authorized the repurchase
of up to $200.0 million of the Company's Common Stock pursuant to a share
buyback program. On December 4, 1998, the Company's Board of Directors increased
the authorized share buyback program by an additional $110.0 million, bringing
the total authorized repurchase amount to $310.0 million. As of December 31,
1998, the Company had repurchased approximately 21,751,000 shares under the
share buyback program. Included in the shares repurchased as of December 31,
1998 were approximately 6,150,000 shares repurchased under an accelerated stock
acquisition plan ("ASAP"). The Company entered into the ASAP with a certain
brokerage firm which agreed to sell to the Company shares of its Common Stock at
a certain cost. The brokerage firm borrowed these shares from its customers and
was required to enter into market transactions, subject to Company approval, and
purchase shares of Company Common Stock to return to its customers. The Company,
pursuant to the ASAP, agreed to compensate the brokerage firm for any increases
in the Company's stock price that would cause the brokerage firm to pay an
amount to purchase the stock over the ASAP price. Conversely, the Company would
receive a refund in the purchase price if the Company's stock price fell below
the ASAP price. Subsequent to December 31, 1998, the Company used refunded
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proceeds from the ASAP to complete the program during January and February 1999,
with the repurchase of approximately 597,000 shares, bringing the total shares
repurchased under the program to approximately 22,348,000 shares. All of these
shares were retired upon purchase. On November 5, 1999, the Company's Board of
Directors authorized the repurchase of up to $65.0 million of the Company's
Common Stock pursuant to a new share buyback program.
The Company is also obligated under various acquisition agreements to make
earn-out payments to former stockholders of acquired companies over the next
three years. The Company estimates that the amount of these payments will total
$54.6 million, $11.3 million and $1.3 million annually, for the next three
years. The Company anticipates that the cash generated by the operations of the
acquired companies will provide a substantial part of the capital required to
fund these payments.
The Company anticipates that capital expenditures for furniture and equipment,
including improvements to its management information and operating systems
during the remainder of 1999 will be approximately $5.0 million. The Company
anticipates recurring expenditures in future years to be approximately $15.0 to
$20.0 million per year.
In connection with the Company's sale of its health care operations, the Company
entered into an agreement with the purchaser of the health care assets whereby
the Company agreed to make advances to the purchaser to fund its working capital
requirements in an amount not to exceed the lesser of $30.0 million or 85% of
accounts receivable through March 31, 1999, which was later extended until
September 30, 1999. These advances are collateralized by the assets of the sold
operations, primarily the accounts receivable. As of September 30, 1999, the
Company had advanced approximately $24.1 million under this agreement.
Additionally, the Company has $5.0 million in notes receivable from the sale of
the health care operations, which are offset by a reserve of $1.5 million,
resulting in a total unreserved asset balance related to the sale of the
Company's discontinued health care operations of $27.6 million. In the third
quarter of 1999, the Company was informed by the purchaser of its health care
operations that the purchaser was going to default on its obligation to the
Company. This default was due to the purchaser's decision to discontinue its
efforts to refinance purchaser's indebtedness to the Company. Accordingly, the
purchaser of the Company's health care operations is attempting to enter into
agreements with its franchisees and potential acquirors of franchises and the
purchaser-owned locations, whereby net accounts receivable and any additional
amounts realized from the sale of purchaser-owned locations will, after
operating costs, be applied against the purchaser's debt to the Company.
Further, the purchaser, with the approval of the Company, has named an interim
CEO to operate the business in an effort to maximize debt reduction to the
Company. However, the Company believes that the collectibility of these assets
is uncertain enough that it is appropriate, in the third quarter of 1999, to
write-down the assets related to the sale of the Company's discontinued health
care operations by $25.0 million.
The Company believes that funds provided by operations, available borrowings
under its credit facilities, and current amounts of cash will be sufficient to
meet its presently anticipated needs for working capital, capital expenditures
and acquisitions for at least the next 12 months.
Indebtedness of the Company
On October 30, 1998, the Company entered into a $500 million revolving credit
facility which is syndicated to a group of 13 banks with NationsBank, N.A., as
principal agent. On October 27, 1999 the 364 day facility portion of the
original credit facility was replaced by a new $150.0 million 364 day credit
facility. The new facility expires in 364 days and the remaining $350.0 million
under the old credit facility expires on October 21, 2003. Pursuant to the 364
day credit facility, the Company has the option to term out the 364 day
component of the credit facility for up to one year. Outstanding amounts under
the credit facilities bear interest at certain floating rates as specified by
the applicable credit facility. The credit facilities contain certain financial
and non-financial covenants relating to the Company's operations, including
maintaining certain financial ratios. Repayment of the credit facilities are
guaranteed by the material subsidiaries of the Company. In addition, approval is
required by the majority of the lenders when the cash consideration of an
individual acquisition exceeds 10% of consolidated stockholders' equity of the
Company.
As of October 29, 1999, the Company had a balance of $243.0 million outstanding
under the old credit facility. The Company also had outstanding letters of
credit in the amount of $1.5 million, reducing the amount of funds available
under the credit facility to $255.5 million, as of October 29, 1999. There were
no amounts outstanding under the new credit facility as of October 29, 1999.
The Company also has certain notes payable to shareholders of acquired
companies. The notes payable bear interest at rates ranging from 4.3% to 8.0%
and have repayment terms from January 1999 to November 2004. As of October 29,
the Company owed approximately $19.0 million in such acquisition indebtedness.
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SEASONALITY
The company's quarterly operating results are affected primarily by the number
of billing days in the quarter and the seasonality of its customers' businesses.
Demand for services in the information technology and professional services
businesses is typically lower during the first quarter until customers'
operating budgets are finalized and the profitability of the Company's
consultants is generally lower in the fourth quarter due to fewer billing days
because of the higher number of holidays and vacation days.
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OTHER MATTERS
Year 2000 Compliance
During 1997 the Company began projects to address potential problems within the
Company's operations which could result from the century change in the Year
2000. In 1998, the Company created a Year 2000 Project Office to oversee Year
2000 related projects and to address potential problems within the Company's
operations, which could result from the century change in the Year 2000. The
Project Office reports to the Company's Board of Directors, is staffed primarily
with representatives of the Company's Information Systems Department and has
access to key associates in all areas of the Company's operations. The Project
Office also uses outside consultants on an as-needed basis.
A four-phase approach has been utilized to address the Year 2000 issues: (1) an
inventory phase to identify all computer-based systems and applications
(including embedded systems) which might not be Year 2000 compliant; (2) an
assessment phase to determine what revisions or replacements would be necessary
to achieve Year 2000 compliance and identification of remediation priorities
which would best serve the Company's business interests; (3) a conversion phase
to implement the actions necessary to achieve compliance and to conduct the
tests necessary to verify that the systems are operational; and (4) an
implementation phase to transition the compliant systems into the everyday
operations of the Company. Management believes that the four phases are
approximately 100%, 100%, 100%, and 98% complete, respectively.
The Company's corporate accounting, payroll and human resources systems are
recent implementations (installed since June 1997) of mainstream computer
products from vendors such as PeopleSoft, Informix, Microsoft, Digital Equipment
Corporation and Compaq. The Company has completed Year 2000 required upgrades
for corporate hardware systems, operating systems, network systems, database
systems and applications systems. The project to upgrade the Company's
PeopleSoft financial applications from version 6.1 to Year 2000 compliant
version 7.5 is complete.
The Company operates approximately 263 branches, primarily in the U.S., Canada
and the United Kingdom. The branch network relies on a variety of front office
automation systems to provide sales support for resume tracking and client
contact management. Because of the diverse architectural nature of these systems
together with the relative ease with which backup/contingency procedures can be
implemented in the event of an individual branch system outage, the Company does
not believe that these systems pose a material Year 2000 risk. Nevertheless, the
Company has completed inventory, assessment, and conversion phases for all
branch locations. In conjunction with other business related integration
projects, the Company has replaced noncompliant Year 2000 branch hardware and
software with Year 2000 compliant products.
Non-IT systems have also been assessed and inventoried. Potential Year 2000
risks in these systems include landlord-controlled systems, such as heating and
cooling systems, automated security systems, elevators, and office equipment,
phone systems, facsimile machines and copiers. The Company has requested
assessments of non-IT systems for Year 2000 compliance from landlords and office
equipment vendors. Based on these responses that the Company has received, the
Company believes that the Year 2000 risk of non-IT systems failure is not
material.
The Company budgeted $2.5 million to address the Year 2000 issues, which
includes the estimated cost of the salaries of associates and the fees of
consultants addressing the issue. This cost represents approximately 12% of the
Company's total MIS budget. Approximately $2.3 million has been incurred to date
for outside consultants, software and hardware applications, and dedicated
personnel. The Company does not separately track the internal costs incurred for
portions of the Year 2000 compliance project that are completed as a part of
other business related projects. Such costs are principally the related payroll
costs for the Company's information systems group. The Company believes that
cash flows from operations and funds available under the Company's credit
facility as well as cash on hand are sufficient to fund these costs.
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As a part of the Year 2000 review, the Company is examining its relationships
with certain key outside vendors and others with whom it has significant
business relationships to determine to the extent practical the degree of such
parties' Year 2000 compliance and to develop strategies and alternatives for
working with them through the century change. Other than its banking
relationships, which include only large, federally insured institutions, and
utilities (electrical power, telecommunications, water and related items), the
Company does not have a relationship with any third-party which is material to
the operations of the Company and, therefore, believes that the failure of any
such party to be Year 2000 compliant would not have a material adverse effect on
the Company. However, banking or utility failures at the Company's branches or
with its customers could have a material effect on the Company's revenue sources
and could disrupt the payment cycle of certain of the Company's customers.
Should the Company or a third party with whom the Company deals have a systems
failure due to the century change, the Company does not expect any such effect
to be material. The Company has developed contingency plans for addressing
issues, which may arise as a result of the century change in the year 2000.
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Item 3. Quantitative And Qualitative Disclosures About Market Risk
The following assessment of the Company's market risks does not include
uncertainties that are either nonfinancial or nonquantifiable, such as
political, economic, tax and other credit risks.
Interest Rates. The Company's exposure to market risk for changes in interest
rates relates primarily to the Company's short-term and long-term debt
obligations and to the Company's investments.
The Company's investment portfolio consists of cash and cash equivalents
including deposits in banks, government securities, money market funds, and
short-term investments with maturities, when acquired, of 90 days or less. The
Company is adverse to principal loss and ensures the safety and preservation of
its invested funds by placing these funds with high credit quality issuers. The
Company constantly evaluates its invested funds to respond appropriately to a
reduction in the credit rating of any investment issuer or guarantor.
The Company's short-term and long-term debt obligations totaled approximately
$251.0 million as of September 30, 1999 and the Company had $266.5 million
available under its current credit facility. The debt obligations consist of (1)
notes payable to former shareholders of acquired corporations, are at a fixed
rate of interest, and extend through 2004 and (2) amounts outstanding under the
credit facility which expires in 2003. The interest rate risk on the note
obligations is immaterial due to the dollar amount and fixed nature of these
obligations. The interest rate on the credit facility is variable, with the rate
on borrowings outstanding at September 30, 1999 being approximately 5.9%. As of
September 30, 1999, the Company has not entered into any interest rate
instruments to reduce its exposure to interest rate risk.
Foreign Currency Exchange Rates. Foreign currency exchange rate changes impact
translations of foreign denominated assets and liabilities into U.S. dollars and
future earnings and cash flows from transactions denominated in different
currencies. The Company generated approximately 24.9% and 23.4% of its
consolidated revenues for the three and nine months ended September 30, 1999
consolidated revenues from international operations, respectively, 96.5% and
95.5% of which were from the United Kingdom and 3.5% and 4.5% of which were from
other countries, respectively. Thus, 96.5% and 95.5%of international revenues
for the three and nine months ended September 30, 1999 were derived from the
United Kingdom, whose currency, has not fluctuated materially against the United
States dollar since the Company began operating in the United Kingdom. The
Company recorded unrealized cumulative foreign exchange translation losses of
$271 as of September 30, 1999, and unrealized cumulative foreign exchange
translation gains of $520 as of December 31, 1998. The cumulative amounts are
recorded as a separate component of stockholders' equity under the caption
'Accumulated other comprehensive income'. The Company did not hold and has not
entered into any foreign currency derivative instruments as of September 30,
1999.
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FACTORS WHICH MAY IMPACT FUTURE RESULTS AND FINANCIAL CONDITION
Effect of Fluctuations in the General Economy
Demand for the Company's information technology and professional business
services is significantly affected by the general level of economic activity in
the markets served by the Company. During periods of slowing economic activity,
companies may reduce the use of outside consultants and staff augmentation
services prior to undertaking layoffs of full-time employees. Also during such
periods, companies may elect to defer installation of new information technology
systems and platforms (such as Enterprise Resource Planning systems) or upgrades
to existing systems and platforms. Year 2000 remediation and testing for
existing information technology systems is having a similar effect. As a result,
any significant economic downturn or more pronounced Year 2000 impact could have
a material adverse effect on the Company's results of operations or financial
condition.
The Company may also be adversely effected by consolidations through mergers and
otherwise of main customers or between major customers with non-customers. These
consolidations as well as corporate downsizings may result in redundant
functions or services and a resulting reduction in demand by such customers for
the Company's services. Also, spending for outsourced business services may be
put on hold until the consolidations are completed.
Competition
The Company's industry segments are intensely competitive and highly fragmented,
with few barriers to entry by potential competitors. The Company faces
significant competition in the markets that it serves and will face significant
competition in any geographic market that it may enter. In each market and
industry segment in which the Company operates, it competes for both clients and
qualified professionals with other firms offering similar services. Competition
creates an aggressive pricing environment and higher wage costs, which puts
pressure on gross margins.
Ability to Recruit and Retain Professional Employees
The Company depends on its ability to recruit and retain employees who possess
the skills, experience and/or professional certifications necessary to meet the
requirements of the Company's clients. Competition for individuals possessing
the requisite criteria is intense, particularly in certain specialized IT and
professional skill areas. The Company often competes with its own clients in
attracting and retaining qualified personnel. There can be no assurance that
qualified personnel will be available and recruited in sufficient numbers on
economic terms acceptable to the Company.
The continuing shortage of qualified IT consultants may adversely affect the
Company's ability to increase revenue. This shortage may be exacerbated by the
difficulties of utilizing the services of qualified foreign nationals working in
the United States under H-1B visas. The use of these consultants requires both
the Company and these foreign nationals to comply with United States immigration
laws.
Ability to Continue Acquisition Strategy; Ability to Integrate Acquired
Operations
The Company has experienced significant growth in the past through acquisitions.
Although the Company continues to seek acquisition opportunities, there can be
no assurance that the Company will be able to negotiate acquisitions on economic
terms acceptable to the Company or that the Company will be able to successfully
identify acquisition candidates and integrate all acquired operations into the
Company.
Possible Changes in Governmental Regulations
From time to time, legislation is proposed in the United States Congress, state
legislative bodies and by foreign governments that would have the effect of
requiring employers to provide the same or similar employee benefits to
consultants and other temporary personnel as those provided to full-time
employees. The enactment of such legislation would eliminate one of the key
economic reasons for outsourcing certain human resources and could significantly
adversely impact the Company's staff augmentation business. In addition, the
Company's costs could increase as a result of future laws or regulations that
address insurance, benefits or other employment-related matters. There can be no
assurance that the Company could successfully pass any such increased costs to
its clients.
22
<PAGE>
Possible Year 2000 Exposure
The IT division performs both Year 2000 remediation services as well as system
upgrades and enhancements for clients. There is some possibility that customers
who experience system failures related to Year 2000 may institute actions
against their IT vendors, including the Company. There is no ability to quantify
the likelihood or merit of any such claims; but if a significant number of such
claims are asserted against the Company or if one or more customers assert
meritorious claims, such claims may result in material adverse effects on the
Company's results of operations and financial condition.
23
<PAGE>
Part II. Other Information
Item 1. Legal Proceedings
No disclosure required.
Item 2. Changes in Securities
No disclosure required.
Item 3. Defaults Upon Senior Securities
No disclosure required.
Item 4. Submission of Matters to a Vote of Security Holders
No disclosure required.
Item 5. Other Information
No disclosure required.
Item 6. Exhibits and Reports on Form 8-K
A. Exhibits
10.6(a) Amendment agreement No. 1 to revolving credit and
reimbursement agreement, Dated October 27, 1999.
10.6(b) 364 day credit agreement by and between the Company
and Bank of America. N.A. as administration agent and
certain lenders named therein dated October 27, 1999.
10.10(a) Award notification to Derek E. Dewan under Senior
executive annual incentive program.
10.11(a) Award notification to Michael D. Abney under Senior
executive annual incentive program.
10.12(a) Award notification to Marc M. Mayo under Senior
executive annual incentive program.
10.13(a) Award notification to Timothy D. Payne under Senior
executive annual incentive program.
10.14(a) Award notification to George A. Bajalia under Senior
executive annual incentive program.
10.15(a) Award notification to Robert P. Crouch under Senior
executive annual incentive program.
10.16 Modis Professional Services, Inc. Senior Executive
Annual Incentive Program
11 Calculation of Per Share Earnings.
27 Financial Data Schedule.
24
<PAGE>
SIGNATURES
Pursuant to the requirements of Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signatures Title Date
/s/ DEREK E. DEWAN President, Chairman November 15, 1999
- ---------------------- of the Board and Chief
Derek E. Dewan Executive Officer
/s/ MICHAEL D. ABNEY Senior Vice President, November 15, 1999
- ---------------------- Chief Financial Officer,
Michael D. Abney Treasurer, and Director
/s/ ROBERT P. CROUCH Vice President and November 15, 1999
- ---------------------- Chief Accounting Officer
Robert P. Crouch
25
AMENDMENT AGREEMENT NO. 1
TO REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 27th day of
October, 1999, by and among MODIS PROFESSIONAL SERVICES, INC., a Florida
corporation (herein called the "Borrower"), BANK OF AMERICA, N.A. (successor by
merger of NationsBank, National Association) (the "Agent"), as Administrative
Agent for the lenders (the "Lenders") party to the Revolving Credit and
Reimbursement Agreement dated October 30, 1998 among such Lenders, Borrower and
the Agent (the "Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the Agreement
pursuant to which the Lenders have agreed to make revolving loans to the
Borrower in the aggregate principal amount of up to $500,000,000 as evidenced by
the Notes (as defined in the Agreement) and to issue Letters of Credit for the
benefit of the Borrower; and
WHEREAS, as a condition to the making of the loans pursuant to the Agreement the
Lenders have required that all Material Subsidiaries of the Borrower guarantee
payment of all Obligations of the Borrower arising under the Agreement; and
WHEREAS, the 364 Day Facility provided for under the Agreement will terminate on
October 27, 1999 and the Borrower has requested that the Agreement be amended to
permit the creation of a new 364 day credit facility and to make the other
amendments described herein;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree as
follows:
1. Definitions. The term "Agreement" as used herein and in the Loan Documents
(as defined in the Agreement) shall mean the Agreement as hereinafter amended
and modified. Unless the context otherwise requires, all terms used herein
without definition shall have the definition provided therefor in the Agreement.
2. Amendment. The Agreement is amended, effective as of October 27, 1999, as
follows:
(a) Section 1.01 is hereby amended by adding a new definition "364 Day
Agreement" thereto immediately following the definition "Swing Line
Outstandings" which definition shall read as follows:
"'364 Day Agreement' means the 364 Day Credit Agreement dated as of October 27,
1999 among the Borrower, Bank of America, N.A., as Agent, and the Lenders party
thereto, providing loans of up to $150,000,000 to the Borrower;"
(b) The definition of "Authorized Representative" in Section 1.01 is hereby
amended by deleting the word "Controller" appearing therein and inserting in
lieu thereof the phrase "Chief Accounting Officer."
(c) Clause (g) of the definition of "Permitted Liens" in Section 1.01 is hereby
amended in its entirety so that as amended it shall read as follows:
"(g) Liens consisting of encumbrances in the nature of zoning restrictions,
easements, rights and restrictions of record on the use of real property on the
date of acquisition thereof and statutory or other contractual Liens of
landlords and lessors on personal property located on the premises to which such
lease relates, which in any case do not materially detract from the value of
such property or impair the use thereof;"
(d) Section 7.01(d) is hereby amended by adding the phrase "other than inactive
Subsidiaries" immediately following the word "hereto" and before the semi-colon
in the second line thereof.
(e) Section 9.04 is hereby amended by (i) deleting the word "and" at the end of
clause (e), (ii) relettering clause (f) to be clause (g), and (iii) adding a new
clause (f) thereto which shall read as follows:
"(f) Indebtedness of up to $150,000,000 arising under the 364 Day Agreement;
and"
(f) Section 9.06 is hereby amended by (i) deleting the figure "$5,000,000"
appearing in clause (vi) and inserting in lieu thereof the figure "$25,000,000
and (ii) deleting the figure "$500,000" appearing in clause (ix) and inserting
in lieu thereof the figure "$2,000,000".
(g) Section 9.08 is hereby amended in its entirety so that as amended it shall
read as follows:
"9.08. Restricted Payments. Make Restricted Payments during any Fiscal Year on a
non-cumulative basis (so that amounts not paid in one Fiscal Year may not be
carried forward to a subsequent Fiscal Year) in excess of five percent (5%) of
Consolidated Shareholders' Equity as at the end of such Fiscal Year; provided,
however, that the Borrower shall not make any Restricted Payment if either prior
to or after giving effect to such Restricted Payment a Default or Event of
Default shall exist, provided that in no event shall capital stock of the
Borrower owned by Borrower and its Subsidiaries represent at any time 25% or
more of Consolidated Shareholders' Equity."
(h) A new Section 9.17 is hereby added to the Agreement, which Section shall
read as follows:
"9.17. 364 Day Agreement. Permit at any time the 364 Day Agreement to contain
covenants or conditions more restrictive than those set forth in this
Agreement."
3. The Lenders, the Borrower and the Subsidiaries hereby acknowledge and agree
that the 364 Day Facility has terminated effective as of the date hereof and
that the Borrower no longer is entitled to receive any Advance pursuant to the
364 Day Facility.
4. Subsidiary Consents. Each Subsidiary of the Borrower that has delivered a
Guaranty to the Agent has joined in the execution of this Amendment Agreement
for the purpose of (i) agreeing to the amendment to the Agreement and (ii)
confirming its guarantee of payment of all the Obligations.
5. Representations and Warranties. The Borrower hereby represents and warrants
that:
(a) The representations and warranties made by Borrower in Article VII of the
Agreement are true on and as of the date hereof except that the financial
statements referred to in Section 7.01(f) shall be those most recently furnished
to each Lender pursuant to Section 8.01;
(b) There has been no material adverse change in the condition, financial or
otherwise, of the Borrower and its Subsidiaries since the date of the most
recent financial reports of the Borrower received by each Lender under Section
8.01 thereof, other than changes in the ordinary course of business, none of
which has been a material adverse change;
(c) The business and properties of the Borrower and its Subsidiaries are not and
have not been adversely affected in any substantial way as the result of any
fire, explosion, earthquake, accident, strike, lockout, combination of workers,
flood, embargo, riot, activities of armed forces, war or acts of God or the
public enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and no condition exists which, upon the consummation
of the transaction contemplated hereby, constitutes a Default or an Event of
Default on the part of the Borrower under the Agreement, the Notes or any other
Loan Document either immediately or with the lapse of time or the giving of
notice, or both.
6. Conditions. This Amendment Agreement shall become effective upon:
(a) execution by the Required Lenders and the Borrower delivering to the Agent
five (5) counterparts of this Amendment Agreement duly executed by the Borrower
and consented to by each of the Material Subsidiaries; and
(b) payment in full of all outstanding 364 Day Loans together with any accrued
and unpaid interest and fees relating thereto.
7. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties
hereto, specifying such change, modification, waiver or cancellation of such
terms or conditions, or of any proceeding or succeeding breach thereof.
8. Full Force and Effect of Agreement. Except as hereby specifically amended,
modified or supplemented, the Agreement and all of the other Loan Documents are
hereby confirmed and ratified in all respects and shall remain in full force and
effect according to their respective terms.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to
be duly executed by their duly authorized officers, all as of the day and year
first above written.
BORROWER:
MODIS PROFESSIONAL SERVICES, INC.
WITNESS:
/s/ Steve E. Marshall By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Michelle R. Sutch Title: Senior Vice President
& Treasurer
GUARANTORS:
ACCOUNTING PRINCIPALS, LTD.,
a Pennsylvania limited partnership
ACTIUM CORPORATION
AD L.L.C. I, a Delaware limited liability company
ADDITIONAL TECHNICAL SUPPORT OF
MASSACHUSETTS, INC.
AMPL INCORPORATED
AMICUS STAFFING, INC.
BC L.L.C. I, a Delaware limited liability company
BERGER IT CO.
CAREER HORIZONS, INC.
CONSULTING PARTNERS, INC.
DATA MANAGEMENT CONSULTANTS, INC.
DIVERSIFIED SEARCH, INC.
ENTEGEE,INC.
HEALTH FORCE, INC.
HEALTH FORCE OPERATING CORP.
LIT, INC.
MANAGEMENT PRINCIPALS, INC.
(f/k/a Keystone Consulting Group, Inc.)
MANCHESTER, INC.
MEDI-FORCE, INC.
MODIS, INC.
MODIS GP, INC.
MODIS LP-2, INC.
MODIS FACTORING CORPORATION
(f/k/a ASI Factoring Corporation)
MODIS LICENSING CORPORATION
MODIS OF GEORGIA, INC.
MODIS OF GEORGIA, LP,
a Georgia limited partnership MODIS OF PENNSYLVANIA, INC.
WITNESS:
/s/ Steve E. Marshall By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Michelle R. Sutch Title: Senior Vice President
& Treasurer
MODIS OF PENNSYLVANIA, LTD.,
a Pennsylvania limited partnership
MODIS/COMPUTER ACTION, INC.
OPEN MANAGEMENT SOFTWARE, INC.
SCIENTIFIC STAFFING, INC.
SPECIAL COUNSEL, INC.
SYSTEM PROS OF MASSACHUSETTS, INC.
UTEK, INC.
ZEAL, INC.
WITNESS:
/s/ Steve E. Marshall By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Michelle R. Sutch Title: Senior Vice President
& Treasurer
BANK OF AMERICA, N.A.,
as Agent for the Lenders
By: /s/ John E. Williams
Name: John E. Williams
Title: Managing Director
BANK OF AMERICA, N.A., as Lender
By: /s/ John E. Williams
Name: John E. Williams
Title: Managing Director
FIRST UNION NATIONAL BANK
By: /s/ R. Lea Williamson
Name: R. Lea Williamson
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ Deborah J. Lawrence
Name: Deborah J. Lawrence
Title: Senior Vice President
BANK ONE, NA, (Chicago Main Office)
as Documentation Agent
By: /s/ Dianna L. McCarthy
Name: Dianna L. McCarthy
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ William R. McCamey
Name: William R. McCamey
Title: Vice President
KBC BANK N.V.
By: /s/ Robert Snauffer /s/ Raymond F. Murray
Name: Robert Snauffer Raymond F. Murray
Title: First Vice President First Vice President
HSBC BANK USA
By: /s/ Jeremy P. Bollington
Name: Jeremy P. Bollington
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Angela Bentley
Name: Angela Bentley
Title: Portfolio Manager
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By: /s/ Warren Ross
Name: Warren Ross
Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ Minami Miura
Name: Minami Miura
Title: Vice President
BANK HAPOALIM B.M.
By: /s/ Laura Anne Raffa /s/ Shaun Breidbart
Name: Laura Anne Raffa Shaun Breidbart
Title: First Vice President & Vice President
Corporate Manager
364 DAY CREDIT AGREEMENT
by and among
MODIS PROFESSIONAL SERVICES, INC., as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK ONE, NA,
as Documentation Agent,
FLEET NATIONAL BANK,
as Syndication Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
October 27, 1999
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Terms
1.01 Definitions. 2
1.02 Accounting Terms 19
1.03 Cross References 19
1.04 Accounting and Financial Determinations 20
1.05 General Provisions Relating to Definitions20
1.06 Time 20
ARTICLE II The Loans
2.01 364 Day Facility 21
2.02 Payment of Interest 22
2.03 Payment of Principal 22
2.04 Non-Conforming Payments 23
2.05 Borrower's Account 23
2.06 Notes 23
2.07 Reductions 24
2.08 Conversions and Elections of
Subsequent Interest Periods 24
2.09 Pro Rata Payments 24
2.10 Unused Fee 25
2.11 Deficiency Advances 25
2.12 Intraday Funding 25
2.13 Use of Proceeds 26
2.14 364 Day Facility Extension and
Term Loan Option 26
ARTICLE III Change in Circumstances
3.01 Increased Cost and Reduced Return 29
3.02. Limitation on Types of Loans 30
3.03 Illegality 31
3.04 Treatment of Affected Loans 31
3.05 Compensation 31
3.06 Taxes 32
ARTICLE IV Guaranties
4.01 Guaranties 35
ARTICLE V Conditions to Making Loans
5.01 Conditions of Advance 36
5.02 Conditions of Loans 37
ARTICLE VI Representations and Warranties
6.01 Representations and Warranties 38
ARTICLE VII Affirmative Covenants
7.01 Financial Reports, Etc 45
7.02 Maintain Properties 46
7.03 Existence, Qualification, Etc 46
7.04 Regulations and Taxes 46
7.05 Insurance. 46
7.06 True Books 47
7.07 Year 2000 Compliance 47
7.08 Right of Inspection 47
7.09 Observe all Laws 47
7.10 Officer's Knowledge of Default 47
7.11 Suits or Other Proceedings 47
7.12 Notice of Discharge of Hazardous
Material or Environmental Complaint. 48
7.13 Environmental Compliance 48
7.14 Indemnification 48
7.15 Further Assurances 48
7.16 ERISA Requirement 48
7.17 Continued Operations 49
7.18 Use of Proceeds 49
ARTICLE VIII Negative Covenants
8.01 Consolidated Leverage Ratio 50
8.02 Consolidated Fixed Charge Ratio 50
8.03 Consolidated Capitalization Ratio 50
8.04 Indebtedness 50
8.05 Transfer of Assets 51
8.06 Investments; Acquisitions 51
8.07 Liens 52
8.08 Restricted Payments 52
8.09 Merger or Consolidation 53
8.10 Change in Control 53
8.11 Transactions with Affiliates 53
8.12 ERISA 53
8.13 Fiscal Year 54
8.14 Dissolution, etc 54
8.15 Rate Hedging Obligations 54
8.16 Negative Pledge Clauses 54
8.17 Existing Credit Agreement 54
ARTICLE IX Events of Default and Acceleration
9.01 Events of Default 55
9.02 Agent to Act 57
9.03 Cumulative Rights 57
9.04 No Waiver 58
9.05 Allocation of Proceeds 58
ARTICLE X The Agent
10.01 Appointment, Powers and Immunities 59
10.02 Reliance by Agent 59
10.03 Defaults 60
10.04 Rights as Lender 60
10.05 Indemnification 60
10.06 Non-Reliance on Agent and Other Lenders 61
10.07 Resignation of Agent 61
10.08 Fees 61
10.09 Other Agents 61
ARTICLE XI Miscellaneous
11.01 Assignments and Participations 62
11.02 Notices 63
11.03 Right of Setoff; Adjustments 64
11.04 Survival 65
11.05 Expenses 65
11.06 Amendments and Waivers 66
11.07 Counterparts 66
11.08 Waivers by Borrower 67
11.09 Termination 67
11.10 Replacement Lender 67
11.11 Governing Law 68
11.12 Headings and References 68
11.13 Severability 68
11.14 Entire Agreement 68
11.15 Agreement Controls 68
11.16 Usury Savings Clause 69
11.17 Confidentiality 69
EXHIBIT A Applicable Commitment Percentages A-1
EXHIBIT B Form of Assignment and Acceptance B-1
EXHIBIT C Notice of Appointment (or Revocation) of
Authorized Representative C-1
EXHIBIT D Form of Borrowing Notice D-1
EXHIBIT E Form of Interest Rate Selection Notice E-1
EXHIBIT F Form of 364 Day Note F-1
EXHIBIT G-1 Form of Opinion of Borrower's Counsel G-1-1
EXHIBIT G-2 Form of Opinion of Guarantors' Counsel G-2-1
EXHIBIT H Compliance Certificate H-1
EXHIBIT I Form of Subsidiary and Suretyship Guaranty I-1
Schedule 1.01 Material Subsidiaries S-1
Schedule 6.01(d) Subsidiaries and Investments S-2
Schedule 6.01(f) Contingent Liabilities S-3
Schedule 6.01(g) Liens S-4
Schedule 6.01(j) Litigation S-5
Schedule 6.01(t) Employment Matters S-6
Schedule 7.05 Existing Insurance S-7
Schedule 8.04 Indebtedness S-8
[NOTE: Exhibits and Schedules are not provided. Company undertakes to provide
copies of the Exhibits or Schedules to the Commission upon request.]
364 DAY CREDIT AGREEMENT
THIS 364 DAY CREDIT AGREEMENT, dated as of the 27th day of October, 1999 (the
"Agreement"), is made by and among:
MODIS PROFESSIONAL SERVICES, INC., a Florida corporation having its principal
place of business in Jacksonville, Florida (the "Borrower"); and
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States of America and having its principal place of
business in Charlotte, North Carolina ("Bank of America") and the other Lenders
whose names are subscribed hereto and each other financial institution which may
hereafter execute and deliver an instrument of assignment with respect to this
Agreement pursuant to Section 11.01 (hereinafter Bank of America and such other
lenders may be referred to individually as a "Lender" or collectively as the
"Lenders"); and
BANK OF AMERICA, N.A., in its capacity as agent for the Lenders (in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to the
Borrower a 364 day revolving credit facility (the "364 Day Facility"), the
proceeds of such revolving credit facilities to be used as provided in
Section 2.13 hereof; and
WHEREAS, the Lenders are willing to make the loans
with Bank of America to act as administrative agent for the Lenders;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as follows:
ARTICLE I
Definitions and Terms
1.01 Definitions. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquire" or "Acquisition", as applied to a Person, means the acquiring or
acquisition of a controlling interest in such Person by purchase (including all
or substantially all of the assets), exchange, issuance of stock or other
securities, or by merger, reorganization or other method;
"Adjusted Consolidated EBITDA" means Consolidated EBITDA; provided, however,
that with respect to an Acquisition which is accounted for as a "purchase", for
the Four-Quarter Period following the date of such Acquisition, the Consolidated
EBITDA shall include the results of operations of the Person or assets so
acquired which amounts shall be determined on a historical pro forma basis for
the Four-Quarter Period preceding or including the date of such Acquisition as
if such Acquisition had been consummated as a "pooling of interests", plus to
the extent applicable, any adjustments made in accordance with Securities and
Exchange Commission Rule 17 CFR 210.11-02;
"Advance" means a borrowing under the 364 Day Facility, consisting of the
aggregate principal amount of a Base Rate Loan or a Eurodollar Loan, as the case
may be;
"Affiliate" means a Person (i) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with
the Borrower; (ii) which beneficially owns or holds 25% or more of any class of
the outstanding voting stock (or in the case of a Person which is not a
corporation, 25% or more of the equity interest) of the Borrower; or (iii) 25%
or more of any class of the outstanding voting stock of which is beneficially
owned or held by the Borrower. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of voting stock, by contract
or otherwise;
"Applicable Commitment Percentage" means, with respect to each Lender at any
time, a fraction, the numerator of which shall be such Lender's 364 Day
Commitment and the denominator of which shall be the Total 364 Day Commitment,
which Applicable Commitment Percentage for each Lender as of the Closing Date is
as set forth in Exhibit A; provided that the Applicable Commitment Percentage of
each Lender shall be increased or decreased to reflect any assignments to or by
such Lender effected in accordance with Section 11.01;
"Applicable Lending Office" means, for each Lender and for each Type of Loan,
the "Lending Office" of such Lender (or of an affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of such Lender (or an affiliate of such Lender) as such Lender may from
time to time specify (subject to the provisions of this Agreement) to the Agent
and the Borrower by written notice in accordance with the terms hereof as the
office by which its Loans of such Type are to be made and maintained;
"Applicable Margin" means, with respect to each Eurodollar Loan and each
computation of the Unused Fee, respectively, that number of basis points per
annum set forth below, which number of basis points shall be the Applicable
Margin effective beginning on the first Business Day next following receipt by
the Agent of a Compliance Certificate pursuant to Section 7.01 hereof setting
forth the ratio of Net Funded Indebtedness to Adjusted Consolidated EBITDA, such
Applicable Margin to be that set forth opposite the appropriate ratio described
below:
Ratio of Net Funded Applicable Margin
Indebtedness to Adjusted Eurodollar Unused
Tier Consolidated EBITDA Loan Fee
I Equal to or Less than
1.25 to 1.00 87.5 bps 20 bps
II Greater than 1.25 to 1.00 but
Equal to or Less than
2.25 to 1.00 112.5 bps 25 bps
III Greater than 2.25 to 1.00 137.5 bps 30 bps
For a period from the Closing Date until the Business Day next following receipt
by the Agent of a Compliance Certificate for the fiscal quarter ended September
30, 1999, the Applicable Margin for Eurodollar Loans and the Unused Fee shall be
Tier I;
"Assignment and Acceptance" shall mean an Assignment and Acceptance
substantially in the form of Exhibit B (with blanks appropriately filled in)
delivered to the Agent in connection with an assignment of a Lender's interest
under this Agreement pursuant to Section 11.01;
"Authorized Representative" means any of the President, the Chief Financial
Officer or the Chief Accounting Officer of the Borrower or any other person
expressly designated by the Board of Directors of the Borrower (or the
appropriate committee thereof) as an Authorized Representative of the Borrower,
as set forth from time to time in a certificate in the form attached hereto as
Exhibit C;
"Base Loan" means any Loan for which the rate of interest is determined by
reference to the Base Rate;
"Base Rate" means, for any day, the rate per annum equal to the higher of
(a) the Federal Funds Rate for such day plus one-half of one percent (.5%)
and (b) the Prime Rate for such day. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on
the effective date of such change in the Prime Rate or Federal Funds Rate;
"Board" means the Board of Governors of the Federal Reserve System (or any
successor body);
"Borrower's Account" means a demand deposit account number 3750165027, or any
successor account with the Agent, which may be maintained at one or more offices
of the Agent or an agent of the Agent;
"Borrowing Notice" means the notice delivered by an Authorized Representative in
connection with an Advance under the 364 Day Facility in the form attached
hereto as Exhibit D;
"Business Day" means (i) any day excluding Saturday, Sunday and any day which is
a legal holiday under the laws of the States of New York, North Carolina or
Florida or is a day on which banking institutions located in such states are
authorized or required by law or other governmental action to close and (ii)
with respect to all notices, determinations, fundings and payments in connection
with any Eurodollar Loan, any day that is a Business Day described in clause (i)
above and that is also a day for trading by and between banks in Dollar deposits
in London, England, New York, New York and Charlotte, North Carolina;
"Capital Leases" means all leases which have been or should be capitalized in
accordance with Generally Accepted Accounting Principles as in effect from time
to time including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof;
"Closing Date" means the date as of which this Agreement is executed by the
Borrower, the Agent and the Lender and on which the conditions set forth in
Section 5.01 hereof have been satisfied;
"Code" means the Internal Revenue Code of 1986, as amended, any successor
provision or provisions and any regulations promulgated thereunder;
"Consistent Basis" in reference to the application of Generally Accepted
Accounting Principles means the accounting principles observed in the period
referred to are comparable in all material respects to those applied in the
preparation of the audited financial statements of the Borrower referred to as
of the Closing Date in Section 6.01(f)(i) hereof;
"Consolidated Capitalization Ratio" means the ratio of (a) Consolidated Funded
Indebtedness to (b) the sum of Consolidated Funded Indebtedness and
Consolidated Shareholders' Equity;
"Consolidated EBITDA" means, with respect to the Borrower and its Subsidiaries
for the Four-Quarter Period ending on the date of computation thereof, the sum
of, without duplication, (i) Consolidated Net Income, plus (ii) Consolidated
Interest Expense accrued during such period, plus (iii) taxes on income accrued
during such period, plus (iv) amortization accrued during such period, plus (v)
without duplication, any depreciation during such period, all determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
"Consolidated EBITDAR" means the sum of Consolidated EBITDA plus Consolidated
Rental Expense;
"Consolidated Fixed Charge Ratio" means, with respect to the Borrower and its
Subsidiaries for the Four-Quarter Period ending on the date of computation
thereof, the ratio of (a) Consolidated EBITDAR to (b) Consolidated Fixed
Charges;
"Consolidated Fixed Charges" means, with respect to Borrower and its
Subsidiaries, for the periods indicated, the sum of, without duplication, (i)
Consolidated Interest Expense, (ii) Consolidated Rental Expense, and (iii)
required principal payments of Consolidated Funded Indebtedness, including,
without duplication, payments made with respect to earn-out obligations, made
during the Four-Quarter Period ending on the date of computation thereof;
"Consolidated Funded Indebtedness" means Indebtedness for Money Borrowed of the
Borrower and its Subsidiaries and any liability associated with an earn-out
obligation arising in connection with an Acquisition which is recorded as a
liability on the consolidated balance sheet of the Borrower and its Subsidiaries
all as determined in accordance with Generally Accepted Accounting Principles;
"Consolidated Interest Expense" means, with respect to any period of computation
thereof, the gross interest expense of the Borrower and its Subsidiaries,
including without limitation (i) the amortization of debt discounts, (ii) the
amortization of all fees (including, without limitation, fees payable in respect
of a Swap Agreement and Letters of Credit) payable in connection with the
incurrence of Indebtedness to the extent included in interest expense, and (iii)
the portion of any liabilities incurred in connection with Capital Leases
allocable to interest expense, all determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis;
"Consolidated Leverage Ratio" means the ratio of Consolidated Funded
Indebtedness to Adjusted Consolidated EBITDA;
"Consolidated Net Income" means, for any period of computation thereof, the
gross revenues from operations of the Borrower and its Subsidiaries less all
operating and non-operating expenses of the Borrower and its Subsidiaries
including taxes on income, all determined on a consolidated basis in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis; but
excluding as income: (i) net gains on the sale, conversion or other disposition
of capital assets, (ii) net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or its
Subsidiaries, (iii) net gains on the collection of proceeds of life insurance
policies, (iv) any write-up of any asset, and (v) any other net gain or credit
of an extraordinary nature as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Consolidated Pre-Tax Income" means, for any period of computation thereof, the
gross revenues from operations of the Borrower and its Subsidiaries less all
operating and non-operating expenses of the Borrower and its Subsidiaries
excluding taxes on income, all determined on a consolidated basis in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis; but
excluding as income: (i) net gains on the sale, conversion or other disposition
of capital assets, (ii) net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or its
Subsidiaries, (iii) net gains on the collection of proceeds of life insurance
policies, (iv) any write-up of any asset, and (v) any other net gain or credit
of an extraordinary nature as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Consolidated Rental Expense" means and includes with respect to the period of
determination thereof, the aggregate amount of all fixed payments (including as
such all payments which the lessee is obligated to make to the lessor on
termination of the lease or surrender of the leased property) payable by the
Borrower or any of its Subsidiaries, as lessee or sublessee under any lease of
real or personal property and shall include any amounts required to be paid by
the Borrower or any of its Subsidiaries (whether or not designated as rents or
additional rents) on account of maintenance, repairs, insurance, taxes and
similar charges;
"Consolidated Shareholders' Equity" means, at any time as of which the amount
thereof is to be determined, the consolidated shareholders' equity as determined
in accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
"Consolidated Total Assets" means, as of any date on which the amount thereof is
to be determined, the net book value of all assets of the Borrower and its
Subsidiaries as determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Contingent Obligation" of any Person means all contingent liabilities required
(or which, upon the creation or incurring thereof, would be required) to be
included in the consolidated financial statements of such Person in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis, as
defined by Statement No. 5 of the Financial Accounting Standards Board, and any
obligation of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including obligations
of such Person however incurred:
(1) to purchase such Indebtedness or other obligation or any property or
assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for the purchase or payment
of such Indebtedness or other obligation, or (ii) to maintain a minimum working
capital, net worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest, pledge, charge or other
encumbrance on any property or assets of such Person to secure payment of such
Indebtedness or other obligation;
(4) to lease property or to purchase securities or other property or
services primarily for the purpose of assuring the owner or holder of such
Indebtedness or obligation of the ability of the primary obligor to make payment
of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness or such obligation of
the primary obligor against loss in respect thereof;
with respect to Contingent Obligations, such liabilities shall be computed at
the amount which, in light of all the facts and circumstances existing at the
time, represent the present value of the amount which can reasonably be expected
to become an actual or matured liability;
"Continue", "Continuation" and "Continued" shall refer to the continuation
pursuant to Section 2.08 hereof of a Eurodollar Loan from one Interest Period to
the next Interest Period;
"Convert", "Conversion" and "Converted" shall refer to a conversion pursuant to
Section 2.08 or Article III of one Type of Loan into another Type of Loan;
"Cost of Acquisition" means, as at the date of entering into any agreement to
Acquire any Person, the sum of the following without duplication: (i) any cash
or other property or the face amount of any debt instrument given as
consideration; (ii) any Indebtedness or liabilities assumed by the Borrower or
its Subsidiaries in connection with such Acquisition, including accounts payable
and other current liabilities and (iii) all amounts paid or payable in respect
of covenants not to compete, consulting agreements (either of which are required
to be capitalized in accordance with Generally Accepted Accounting Principles)
and other related contracts in connection with such Acquisition; provided,
however, that the Cost of Acquisition shall not include the value of the capital
stock of the Borrower or any Subsidiary to be transferred in connection
therewith;
"Default" means any event or condition which, with the giving or receipt of
notice or lapse of time or both, would constitute an Event of Default hereunder;
"Default Rate" means (i) with respect to each Eurodollar Loan, until the end of
the Interest Period applicable thereto, a rate of two percent (2%) above the
Eurodollar Rate applicable to such Loan, and thereafter at a rate of interest
per annum which shall be two percent (2%) above the Base Rate, (ii) with respect
to Base Rate Loans, a rate of interest per annum which shall be two percent (2%)
above the Base Rate and (iii) in any case, the maximum rate permitted by
applicable law, if lower;
"Dollars" and the symbol "$" means dollars constituting legal tender for the
payment of public and private debts in the United States of America;
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a Lender; and (iii)
any other financial institution approved by the Agent, such approval not to be
unreasonably withheld, and, unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with Section
11.01, the Borrower, such approval not to be unreasonably withheld or delayed by
the Borrower or the Agent and such approval to be deemed given by the Borrower
if no objection is received by the assigning Lender and the Agent from the
Borrower within five Business Days after written notice of such proposed
assignment has been provided by the assigning Lender to the Borrower; provided,
however, that neither the Borrower nor an affiliate of the Borrower shall
qualify as an Eligible Assignee; and provided, further, that Borrower may
withhold its consent if by reason of an assignment Borrower will incur any
increased costs or withholding of taxes under Article III;
"Eligible Securities" means the following obligations provided such securities
are authorized to be acquired under the Borrower's Cash Management Account
Investment Guidelines (the "Guidelines"):
(a) Government Securities;
(b) the following debt securities of the following agencies or
instrumentalities of the United States of America if at all times the full faith
and credit of the United States of America is pledged to the full and timely
payment of all interest and principal thereof:
(i) all direct or fully guaranteed obligations of the United States
Treasury; and
(ii) mortgage-backed securities and participation certificates guaranteed by the
Government National Mortgage Association;
(c) the following obligations of the following agencies or instrumentalities of
the United States of America:
(i) participation certificates and debt obligations of the Federal Home Loan
Mortgage Corporation;
(ii) consolidated debt obligations, and obligations secured by a letter of
credit, of the Federal Home Loan Banks; and
(iii) debt obligations and mortgage-backed securities of the Federal National
Mortgage Association which have not had the interest portion thereof severed
therefrom;
(d) obligations of any corporation organized under the laws of any state of
the United States of America or under the laws of any other nation, payable in
the United States of America, expressed to mature not later than 92 days
following the date of issuance thereof and rated in an investment grade rating
category by S&P and Moody's;
(e) interest bearing demand or time deposits issued by a Lender or
certificates of deposit maturing within one year from the date of acquisition
issued by a bank or trust company organized under the laws of the United States
or of any state thereof having capital surplus and undivided profits aggregating
at least $400,000,000 and being rated A- or better by S&P or A-3 or better by
Moody's;
(f) Repurchase Agreements;
(g) Pre-Refunded Municipal Obligations;
(h) shares of mutual funds which invest in obligations described in
paragraphs (a) through (g) above, the shares of which mutual funds are at all
times rated "AAA" by S&P;
(i) asset-backed remarketed certificates of participation representing a
fractional undivided interest in the assets of a trust, which certificates are
rated at least "A-1" by S&P and "P-1" by Moody's; and
(j) those securities which comply with the Borrower's Guidelines, so long as the
Agent shall have approved in writing such Guidelines.
Obligations listed in paragraphs (a), (b) and (c) above which are in book-entry
form must be held in a trust account with the Federal Reserve Bank or with a
clearing corporation or chain of clearing corporations which has an account with
the Federal Reserve Bank;
"Environmental Laws" means any federal, state or local statute, law, ordinance,
code, rule, regulation, order, decree, permit or license regulating, relating
to, or imposing liability or standards of conduct concerning, any environmental
matters or conditions, environmental protection or conservation, including
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as amended;
the Toxic Substances Control Act, as amended; the Clean Air Act, as amended; the
Clean Water Act, as amended; together with all regulations promulgated
thereunder, and any other "Superfund" or "Superlien" law.
"ERISA" means, at any date, the Employee Retirement Income Security Act of 1974,
as amended, and the regulations thereunder, all as the same shall be in effect
at such date;
"Eurodollar Loan" means a Loan for which the rate of interest is determined by
reference to the Eurodollar Rate;
"Eurodollar Rate" means, for the Interest Period for any Eurodollar Loan, the
rate of interest per annum determined pursuant to the following formula:
Eurodollar Interbank Offered Rate Applicable
Rate = 1-Eurodollar Reserve + Margin
Requirement
"Eurodollar Reserve Requirement" means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against in the case of
Eurodollar Loans, "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks with
respect to (i) any category of liabilities which includes deposits by reference
to which the Eurodollar Rate is to be determined, or (ii) any category of
extensions of credit or other assets which include Eurodollar Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the effective date
of any change in the Eurodollar Reserve Percentage;
"Event of Default" means any of the occurrences set forth as such in Section
10.01 hereof;
"Existing Credit Agreement" means the Revolving Credit and Reimbursement
Agreement dated October 30, 1998 among the Borrower, Bank of America, N.A.,
successor by merger of NationsBank, N.A., as Agent and the Lenders party
thereto, as amended from time to time;
"5 Year Facility" means the revolving credit facility providing for loans of up
to $350,000,000 to the Borrower pursuant to the Existing Credit Agreement;
"5 Year Termination Date" means (i) Stated 5 Year Termination Date or (ii) such
earlier date of termination of the Existing Credit Agreement whether upon the
occurrence of an Event of Default or such date as the Borrower may voluntarily
permanently terminate the Existing Credit Agreement;
"Federal Funds Rate" means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the agent (in its
individual capacity) on such day on such transactions as determined by the
Agent;
"Fiscal Year" means the twelve month period of the Borrower beginning January 1
and ending December 31 of the same calendar year;
"Foreign Benefit Law" means any applicable statute, law, ordinance, code, rule,
regulation, order or decree of any foreign nation or any province, state,
territory, protectorate or other political subdivision thereof regulating,
relating to, or imposing liability or standards of conduct concerning any
pension, retirement, healthcare, death, disability or other employee benefit
plan;
"Four-Quarter Period" means a period of four full consecutive fiscal quarter
periods, taken together as one accounting period;
"Generally Accepted Accounting Principles" means those principles of accounting
set forth in pronouncements of the Financial Accounting Standards Board, the
American Institute of Certified Public Accountants or which have other
substantial authoritative support and are applicable in the circumstances as of
the date of a report, as such principles are from time to time supplemented and
amended;
"Government Securities" means direct obligations of, or obligations the timely
payment of principal and interest on which are fully and unconditionally
guaranteed by, the United States of America;
"Governmental Authority" shall mean any Federal, state, municipal, national or
other governmental department, commission, board, bureau, agency or
instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative or judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether
of a state of the United States, the United States or a foreign governmental
entity;
"Guarantors" means each Material Subsidiary of the Borrower who shall deliver to
the Agent a Guaranty at the Closing Date and all Receivables Subsidiaries;
"Guaranty Agreement" means that certain Guaranty and Suretyship Agreement dated
as of even date hereof in favor of the Agent, for the benefit of the Lenders, as
the same may be amended, modified or supplemented;
"Hazardous Material" means and includes any pollutant, contaminant or hazardous,
toxic or dangerous waste, substance or material (including, without limitation
petroleum products, asbestos-containing material and lead), the generation,
handling, storage, disposal, treatment, release, discharge or emission of which
is subject to any Environmental Law;
"Indebtedness" means with respect to any Person, without duplication, all
Indebtedness for Money Borrowed, all indebtedness of such Person for the
acquisition of property, all indebtedness secured by any Lien on the property of
such Person whether or not such indebtedness is assumed, all liability of such
Person by way of endorsements (other than for collection or deposit in the
ordinary course of business), all Contingent Obligations, all letters of credit,
all Rate Hedging Obligations and other items which in accordance with Generally
Accepted Accounting Principles is classified as a liability on a balance sheet
other than accrued expenses and accrued taxes; but excluding all accounts
payable in the ordinary course of business so long as payment therefor is due
within one year; provided that in no event shall the term Indebtedness include
partners' capital, surplus and retained earnings, minority interest in Persons,
lease obligations (other than pursuant to Capital Leases), reserves for current
and deferred income taxes and investment credits, other deferred credits and
reserves, and deferred compensation obligations;
"Indebtedness for Money Borrowed" means all indebtedness in respect of money
borrowed, including without limitation all Capital Leases and the deferred
purchase price of any property or asset, evidenced by a promissory note, bond or
similar written obligation for the payment of money (including, but not limited
to, conditional sales or similar title retention agreements) and the undrawn
amount of all Letters of Credit;
"Interbank Offered Rate" means, with respect to any Eurodollar Loan, for the
Interest Period applicable thereto, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Dow Jones Telerate Page 3750
(or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period.
If for any reason such rate is not available, the term "Interbank Offered Rate"
shall mean, for any Eurodollar Loan for any Interest Period therefor, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100th of 1%);
"Interest Period" for each Eurodollar Loan means a period commencing on the date
such Eurodollar Loan is made or Converted and each subsequent period commencing
on the last day of the immediately preceding Interest Period for such Eurodollar
Loan, and ending, at the Borrower's option, on the date one, two, three or six
months thereafter as notified to the Agent by the Authorized Representative
three (3) Business Days prior to the beginning of such Interest Period;
provided, that,
(i) if the Authorized Representative fails to notify the Agent of the length
of an Interest Period three (3) Business Days prior to the first day of such
Interest Period, the Loan for which such Interest Period was to be determined
shall be deemed to be a Base Loan in Dollars as of the first day thereof;
(ii) if an Interest Period for a Eurodollar Loan would end on a day which is
not a Business Day such Interest Period shall be extended to the next Business
Day (unless such extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest Period shall end on
the next preceding Business Day); and
(iii) on any day, with respect to all 364 Day Loans, there shall not be in
effect more than five (5) Interest Periods;
"Interest Rate Selection Notice" means the telephonic or telefacsimile request
of an Authorized Representative to elect a subsequent Interest Period for or to
convert a Loan or Loans of any Type, as such election or conversion shall be
otherwise permitted herein. Any Interest Rate Selection Notice shall be binding
on and irrevocable by the Borrower and, if given by telephone, shall be
confirmed by facsimile transmission delivered to the Agent, effective upon
receipt, on the same Business Day upon
which the telephonic request is made, by the Authorized Representative in the
form attached hereto as Exhibit E and incorporated herein by reference;
"Lien" means any interest in property securing any obligation owed to, or a
claim by, a Person other than the owner of the property, whether such interest
is based on the common law, statute or contract, and including but not limited
to the lien or security interest arising from a mortgage, encumbrance, pledge,
security agreement, conditional sale or trust receipt or a lease, consignment
or bailment for security purposes. For the purposes of this Agreement, the
Borrower and its Subsidiaries shall be deemed to be the owners of any property
which any of them have acquired or hold subject to a conditional sale agreement,
financing lease, or other arrangement pursuant to which title to the property
has been retained by or vested in some other Person for security purposes;
"Loan" means a 364 Day Loan;
"Loan Documents" means this Agreement, the Notes, the Guaranty Agreements and
all other instruments and documents heretofore or hereafter executed or
delivered to and in favor of the Agent for the benefit of the Lenders in
connection with the Loans made under this Agreement as the same may be amended,
modified or supplemented from the time to time;
"Loan Parties" means the Borrower and the Guarantors;
"Material Adverse Effect" means a material adverse effect on (i) the business,
properties, operations or condition, financial or otherwise, of the Borrower and
its Subsidiaries, taken as a whole, (ii) the ability of the Borrower to pay or
perform its obligations, liabilities and indebtedness under the Loan Documents
as such payment or performance becomes due in accordance with the terms thereof,
or (iii) the rights, powers and remedies of the Agent or any Lender under any
Loan Document or the validity, legality or enforceability thereof (including for
purposes of clauses (ii) and (iii) the imposition of burdensome conditions with
respect to such Loan Documents);
"Material Subsidiary" means those Subsidiaries of Borrower listed on Schedule
1.01 other than those indicated as inactive and to be liquidated;
"Moody's" means Moody's Investors Service, Inc., a Delaware corporation;
"Multi-employer Plan" means an employee pension benefit plan covered by Title IV
of ERISA and in respect of which the Borrower or any Subsidiary is an "employer"
as described in Section 4001(b) of ERISA, which is also a multi-employer plan as
defined in Section 4001(a)(3) of ERISA;
"Net Funded Indebtedness" means Consolidated Funded Indebtedness less cash and
Eligible Securities (other than those described in clause (j) which are not
otherwise permitted in clauses (a) through (i) of the definition of Eligible
Securities) having a maturity of less than one year aggregating in excess of
$25,000,000;
"Notes" means, collectively, the 364 Day Notes which are to be delivered to the
Lenders;
"Obligations" means the obligations, liabilities and Indebtedness of the
Borrower with respect to (i) the principal and interest on the Loans as
evidenced by the Notes and (ii) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrower to the Lenders
hereunder, under any one or more of the other Loan Documents or with respect to
the Loans;
"Outstanding 364 Day Obligations" means the sum of all outstanding 364 Day Loans
as at the date of determination;
"Permitted Liens" means:
(a) Liens existing on the Closing Date set forth on Schedule 7.01(g);
(b) any Lien for taxes not yet due or taxes or assessments or other
governmental charges which are being actively contested in good faith by
appropriate proceedings;
(c) any Liens, pledges or deposits in connection with worker's compensation or
social security, assessments or other similar charges or deposits incidental to
the conduct of the business of the Borrower or any Subsidiary or the ownership
of any of their properties which were not incurred in connection with the
borrowing of money or the obtaining of advances or credit and which do not in
the aggregate materially detract from the value of their properties or
materially impair the use thereof in the operation of their businesses;
(d) any Lien existing on any properties of any corporation at the time it
becomes a Subsidiary, or existing prior to the time of acquisition upon any
properties acquired by the Borrower or any Subsidiary through purchase, merger,
consolidation or otherwise, whether or not assumed by the Borrower or such
Subsidiary;
(e) statutory Liens of carriers, warehousemen, mechanics, materialmen and
other Liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by appropriate
proceedings;
(f) pledges or deposits for the purpose of securing a stay or discharge in the
course of any legal proceeding;
(g) Liens consisting of encumbrances in the nature of zoning restrictions,
easements, rights and restrictions of record on the use of real property on the
date of the acquisition thereof and statutory Liens and other contractual Liens
of landlords and lessors on personal property located on the premises to which
such lease relates, which in any case do not materially detract from the value
of such property or impair the use thereof;
(h) any Lien in favor of the United States of America or any department or
agency thereof, or in favor of any state government or political subdivision
thereof, or in favor of a prime contractor under a government contract of the
United States, or of any state government or any political subdivision thereof,
and, in each case, resulting from acceptance of partial, progress, advance or
other payments in the ordinary course of business under government contracts of
the United States, or of any state government or any political subdivision
thereof, or subcontracts thereunder;
(i) any Lien renewing, extending, refinancing or refunding any Lien
permitted by clauses (a), (c), (d), (e), (f), (g) or (h) above; provided,
however, that the principal amount secured is not increased, and the Lien is not
extended to other properties.
"Person" means an individual, partnership, corporation, limited liability
company, trust, unincorporated organization, association, joint venture or a
government or agency or political subdivision thereof;
"Pre-Refunded Municipal Obligations" means obligations of any state of the
United States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated, based on the escrow,
in the highest investment rating category by both S&P and Moody's and which have
been irrevocably called for redemption and advance refunded through the deposit
in escrow of Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii) irrevocably
pledged solely to the payment of all principal and interest on such obligations
as the same becomes due and (iii) in a principal amount and bear such rate or
rates of interest as shall be sufficient to pay in full all principal of,
interest, and premium, if any, on such obligations as the same becomes due as
verified by a nationally recognized firm of certified public accountants;
"Prime Rate" means the per annum rate of interest established from time to time
by Bank of America as its prime rate, which rate may not be the lowest rate of
interest charged by Bank of America to its customers;
"Principal Office" means the office of the Agent presently located at 101 North
Tryon Street, 15th Floor, Charlotte, North Carolina 28255, Attention: Agency
Services or such other office and address as the Agent may from time to time
designate in writing to the Borrower;
"Rate Hedging Obligations" means any and all obligations of the Borrower,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (a) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions, including, but not
limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options, puts,
warrants and those commonly known as interest rate "swap" agreements; and (b)
any and all cancellations, buybacks, reversals, terminations or assignments of
any of the foregoing;
"Receivables Subsidiary" means a Subsidiary of the Borrower which principal
business is to acquire accounts receivable from the Borrower and/or its other
Subsidiaries;
"Regulation D" means Regulation D of the Board as the same may be amended or
supplemented from time to time;
"Repurchase Agreement" means a repurchase agreement entered into with any
financial institution whose debt obligations or commercial paper are rated "A"
by either of S&P or Moody's or "A-1" by S&P or "P-1" by Moody's;
"Required Lenders" means, as of any date, Lenders on such date having Credit
Exposures (as defined below) aggregating at least 51% of the aggregate Credit
Exposures of all the Lenders on such date. For purposes of the preceding
sentence, the amount of the "Credit Exposure" of each Lender shall be equal at
all times to its 364 Day Commitment; provided, however, that for purposes of
this definition only, if any Lender shall have failed to fund its Applicable
Commitment Percentage of any 364 Day Loan, then the 364 Day Commitment of such
Lender shall be deemed reduced by the amount it so failed to fund for so long as
such failure shall continue and such Lender's Credit Exposure attributable to
such failure shall be deemed held by any Lender making more than its Applicable
Commitment Percentage of such 364 Day Loan to the extent it covers such failure;
"Restricted Payment" means (a) any dividend or other distribution, direct or
indirect, on account of any shares of any class of stock of Borrower or any of
its Subsidiaries (other than those payable or distributable solely to the
Borrower or a Subsidiary) now or hereafter outstanding, except a dividend
payable solely in shares of a class of stock to the holders of that class; (b)
any redemption, conversion, exchange, retirement or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any class of
stock of the Borrower or any of its Subsidiaries (other than those payable or
distributable solely to the Borrower or a Subsidiary) now or hereafter
outstanding; (c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
stock of the Borrower or any of its Subsidiaries now or hereafter outstanding;
and (d) any issuance and sale of capital stock of any Subsidiary of the Borrower
(or any option, warrant or right to acquire such stock) other than to the
Borrower;
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.;
"Single Employer Plan" means any employee pension benefit plan covered by Title
IV of ERISA and in respect of which the Borrower or any Subsidiary is an
"employer" as described in Section 4001(b) of ERISA, which is not a
Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at the time of
determination:
(i) the fair value of its assets is in excess of the total amount of its
liabilities, including, without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay its debts as they mature; and
(iii) it has capital sufficient to carry on its business as conducted and as
proposed to be conducted;
"Stated 5 Year Termination Date" means October 27, 2003;
"Strategix Subsidiaries" means any corporation or other entity in which more
than 50% of its outstanding voting stock or more than 50% of all equity interest
was owned directly or indirectly by the Borrower and which were sold to Randstad
US, L.P. pursuant to an Acquisition Agreement dated as of August 27, 1998 among
the Borrower, Randstad US, L.P. and Randstad Holding, n.v.;
"Subsidiary" means any corporation or other entity in which more than 50% of its
outstanding voting stock or more than 50% of all equity interests is owned
directly or indirectly by the Borrower and/or by one or more of the Borrower's
Subsidiaries;
"364 Day Commitment" means, with respect to each Lender, the obligation of such
Lender to make Advances to the Borrower up to an aggregate principal amount at
any one time outstanding equal to such Lender's Applicable Commitment Percentage
of the 364 Day Facility;
"364 Day Extension Date" means October 25, 2000 and each date thereafter, if
any, to which the 364 Day Termination Date has been extended pursuant to Section
2.14, but in no event later than the Stated 5 Year Termination Date;
"364 Day Facility" means the revolving credit facility providing for Loans of up
to $150,000,000 to the Borrower described in Section 2.01;
"364 Day Loan" means a Loan or Advance made to the Borrower pursuant to a 364
Day Facility;
"364 Day Notes" means, collectively, the promissory notes of the Borrower
evidencing Loans executed and delivered to the Lenders as provided in Section
2.06 hereof substantially in the form attached hereto as Exhibit F, with
appropriate insertions as to amounts, dates and names of Lenders;
"364 Day Termination Date" means the earlier of (i) the 364 Day Extension Date
or (ii) the date of termination of Lenders' obligations pursuant to Section 9.01
upon the occurrence of an Event of Default, or (iii) such date as the Borrower
may voluntarily permanently terminate the 364 Day Facility by payment in full of
all outstanding 364 Obligations, or (iv) the occurrence of the 5 Year
Termination Date;
"Total 364 Day Commitment" means a principal amount equal to $150,000,000, as
reduced from time to time in accordance with Section 2.07;
"Type" shall mean any type of Loan (i.e., a Base Loan or Eurodollar Loan);
"Unused Fee" means the fee payable by Borrower to the Agent for the benefit of
the Lenders pursuant to Section 2.10, such fee to be determined as set forth
under the definition of Applicable Margin;
"Year 2000 Compliant" means all computer applications (including those affected
by information received from its suppliers and vendors) that are material to the
Borrower's or any of its Subsidiaries' business and operations will on a timely
basis be able to perform properly data-sensitive functions involving all dates
on and after January 1, 2000;
"Year 2000 Problem" means the risk that computer applications used by the
Borrower and any of its Subsidiaries (including those affected by information
received from its suppliers and vendors) may be unable to recognize and perform
properly data-sensitive functions involving certain dates on and after January
1, 2000.
1.02 Accounting Terms. All accounting terms not specifically defined herein
shall have the meanings assigned to such terms and shall be interpreted in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis.
1.03 Cross References. Unless otherwise specified, references in this
Agreement and in each Loan Document to any Article or Section are references to
such Article or Section of this Agreement or such Loan Document, as the case may
be, and, unless otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of such Section, Article
or definition.
1.04 Accounting and Financial Determinations. Where the character or amount
of any asset or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable, be made in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis except insofar as:
(a) the Borrower shall have elected (with the concurrence of its independent
public accountant and upon prior written notification to the Lenders) to adopt
more recently promulgated Generally Accepted Accounting Principles (which
election shall continue to be effective for subsequent years); and
(b) the Agent and the Required Lenders shall have consented to such election
(it being understood that such consent may be conditioned upon the
implementation of such changes to Article VIII as are appropriate to reflect
such adoption of more recently promulgated Generally Accepted Accounting
Principles and it being further understood that such consent shall be deemed to
have been given upon the implementation of such changes).
Upon a change in Generally Accepted Accounting Principles which becomes
effective after the Closing Date which would have a material effect on the
Company's consolidated financial statements and the assets and liabilities
reflected therein or otherwise affect the calculation or the application of the
covenants contained in Article VIII hereof or the calculation of the Applicable
Margin, such change shall not be given effect for purposes hereof until sixty
(60) days from the otherwise effective date of such change. Prior to such
effectiveness the Agent, the Lenders and the Borrower shall in good faith
negotiate to amend the pertinent provisions of this Agreement to account for
such change to the extent appropriate to effect the substance thereof as of the
Closing Date. If such an amendment is not entered into with respect to any such
change, such change shall not be given effect for purposes hereof.
1.05 General Provisions Relating to Definitions. Terms for which meanings
are defined in this Agreement shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The term
"including" means including, without limiting the generality of any description
preceding such term. Each reference herein to any Person shall include a
reference to such Person's successors and permitted assigns. References to
any instrument defined in this Agreement refer to such instrument as originally
executed or, if subsequently varied, replaced or supplemented from time to time,
as so varied, replaced or supplemented and in effect at the relevant time of
reference thereto.
1.06 Time. Unless otherwise indicated, all references to time are to Charlotte,
North Carolina time.
ARTICLE II
The Loans
2.01 364 Day Facility
(a) Subject to the terms and conditions of this Agreement, each Lender severally
agrees to make Advances to the Borrower, from time to time from the Closing Date
until the 364 Day Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower under the 364 Day Facility on any day determined by
its Applicable Commitment Percentage up to but not exceeding the 364 Day
Commitment of such Lender, provided, however, that the Lenders will not be
required and shall have no obligation to make any Advance (i) so long as a
Default or an Event of Default has occurred and is continuing or (ii) if the
Agent, in accordance with the terms of this Agreement, has accelerated the
maturity of the Notes as a result of an Event of Default; provided further,
however, that immediately after giving effect to each Advance, the principal
amount of Outstanding 364 Day Obligations shall not exceed the Total 364 Day
Commitment. Within such limits, the Borrower may borrow, repay and reborrow
hereunder, on a Business Day from the Closing Date until, but (as to borrowings
and reborrowings) not including, the 364 Day Termination Date; provided,
however, that (x) no Eurodollar Loan shall be made which has an Interest Period
that extends beyond the 364 Day Termination Date and (y) each Eurodollar Loan
may, subject to the provisions of Section 2.08, be repaid only on the last day
of the Interest Period with respect thereto unless such payment is accompanied
by the additional payment, if any, required by Section 3.05.
(b) Amounts. Except as otherwise permitted by the Lenders from time to time, the
aggregate unpaid principal amount of the Outstanding 364 Day Obligations shall
not exceed at any time the Total 364 Day Commitment, and, in the event there
shall be outstanding any such excess, the Borrower shall immediately make such
payments and prepayments as shall be necessary to comply with this restriction.
Each Loan hereunder shall be in an amount of at least $5,000,000, and, if
greater than $5,000,000, an integral multiple of $1,000,000.
(c) Advances and Rate Selection. (i) An Authorized Representative shall give the
Agent (A) at least three (3) Business Days' irrevocable written notice by
telefacsimile transmission of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions, effective upon receipt, of
each Eurodollar Loan (whether representing an additional borrowing hereunder or
the Conversion of a borrowing hereunder) prior to 10:30 A.M. and (B) irrevocable
written notice by telefacsimile transmission of a Borrowing Notice or Interest
Rate Selection Notice (as applicable) with appropriate insertions, effective
upon receipt, of each Loan that is a Base Loan (whether representing an
additional borrowing hereunder or the Conversion of borrowing hereunder) prior
to 10:30 A.M. on the day of such proposed Base Loan. Each such notice shall
specify the amount of the borrowing, the type of Loan (Base Rate or Eurodollar
Rate), the date of borrowing and, if a Eurodollar Loan, the Interest Period to
be used in the computation of interest. Notice of receipt of such Borrowing
Notice or Interest Rate Selection Notice, as the case may be, together with the
amount of each Lender's portion of an Advance requested thereunder, shall be
promptly provided by the Agent to each Lender by telefacsimile transmission, but
(provided the Agent shall have received such notice by 10:30 A.M.) not later
than 1:00 P.M. on the same day as the Agent's receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified for each borrowing under
this Section 2.01, each Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the Advance or Advances to be
made by it on such day available by wire transfer to the Agent in the amount of
its pro rata share, determined according to such Lender's Applicable Commitment
Percentage of the Loan or Loans to be made on such day. Such wire transfer shall
be directed to the Agent at the Principal Office and shall be in the form of
Dollars constituting immediately available funds. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower by delivery of the proceeds thereof to the Borrower's
Account or otherwise as shall be directed in the applicable Borrowing Notice by
the Authorized Representative and reasonably acceptable to the Agent.
(iii) The Borrower shall have the option to elect the duration of the initial
and any subsequent Interest Periods and to Convert the Loans in accordance with
Section 2.08. Eurodollar Loans and Base Loans may be outstanding at the same
time, provided, however, there shall not be outstanding at any one time
Eurodollar Loans having more than five (5) different Interest Periods.
If the Agent does not receive a Borrowing Notice or an Interest Rate Selection
Notice giving notice of election of the duration of an Interest Period or of
Conversion of any Loan to or Continuation of a Loan as a Eurodollar Loan by the
time prescribed by Section 2.01(b) or 2.08, the Borrower shall be deemed to have
elected to Convert such Loans to (or continue such Loan as) a Base Loan in
Dollars until the Borrower notifies the Agent in accordance with Section 2.08.
2.02 Payment of Interest. (a) The Borrower shall pay interest to the Agent at
the Principal Office for the account of each Lender on the outstanding and
unpaid principal amount of each 364 Day Loan made by such Lender in Dollars for
the period commencing on the date of such Loan until such Loan shall be due at
the Eurodollar Rate or the Base Rate, as elected or deemed elected by the
Borrower or otherwise applicable to such Loan as herein provided; provided,
however, that if any amount shall not be paid when due (at maturity, by
acceleration or otherwise), all amounts outstanding hereunder shall bear
interest thereafter at the Default Rate from the date such amount was due and
payable until the date such amount is paid in full.
(b) Interest on each 364 Day Loan shall be computed on the basis of a year of
360 days and calculated for the actual number of days elapsed. Interest on each
364 Day Loan shall be paid (i) quarterly in arrears on the last Business Day of
each March, June, September and December, commencing December 31, 1999, for each
Base Loan, (ii) on the last day of the applicable Interest Period for each
Eurodollar Loan and, if such Interest Period extends for more than three (3)
months, at intervals of three (3) months after the first day of such Interest
Period, and (iii) upon the 364 Day Termination Date. Interest payable at the
Default Rate shall be payable on demand.
2.03 Payment of Principal. The principal amount of the Outstanding 364 Day
Obligations shall be due and payable to the Agent for the benefit of each Lender
in full on the 364 Day Termination Date or earlier as specifically provided
herein. The principal amount of any Base Loan may be prepaid in Dollars in whole
or in part at any time. The principal amount of any Eurodollar Loan may be
prepaid only at the end of the applicable Interest Period unless the Borrower
shall pay to the Agent for the account of the Lenders the additional amount, if
any, required under Section 3.02. All prepayments of Loans made by the Borrower
shall be in the amount of $5,000,000 or such greater amount which is an integral
multiple of $1,000,000, or the amount equal to all outstanding 364 Day Loans or
such other amount as necessary to comply with Section 2.07.
2.04 Non-Conforming Payments. Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid to the Lenders with respect to the 364 Day Loans, shall be made to the
Agent at the Principal Office, for the account of each Lender, in Dollars in
immediately available funds before 12:30 P.M. on the date such payment is due.
The Borrower shall give the Agent one (1) Business Days prior written notice of
any payment of principal, such notice to be given prior to 10:00 A.M. and to
specify (i) the date the payment will be made and (ii) the Loan to which payment
relates. The Agent may, at the election of the Borrower, but shall not be
obligated to, debit the amount of any such payment which is not made by such
time to any ordinary deposit account, if any, of the Borrower with the Agent.
(b) The Agent shall deem any payment made by or on behalf of the Borrower
hereunder that is not made both (i) in Dollars in immediately available funds
and (ii) prior to 12:30 P.M. on the date payment is due to be a non-conforming
payment. Any such payment shall not be deemed to be received by the Agent until
the later of (i) the time such funds become available funds and (ii) the next
Business Day. Any non-conforming payment may constitute or become a Default or
Event of Default at the determination of the Agent. The Agent shall give prompt
telephonic or telefacsimile notice to the Borrower if a non-conforming payment
constitutes a Default or an Event of Default. Interest shall continue to accrue
on any principal as to which a non-conforming payment is made until the later of
(x) the date such funds become available funds or (y) the next Business Day at
the Default Rate from the date such amount was due and payable.
(c) In the event that any payment hereunder or under the Notes becomes due
and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day unless provided otherwise under
clause (ii) of the definition of "Interest Period"; provided that interest
shall continue to accrue during the period of any such extension and provided
further, that in no event shall any such due date be extended beyond the 364 Day
Termination Date.
2.05 Borrower's Account. The Borrower shall continuously maintain the Borrower's
Account for the purposes herein contemplated.
2.06 Notes. 364 Day Loans made by each Lender, shall be evidenced by, and be
repayable with interest in accordance with the terms of, the 364 Day Note
payable to the order of such Lender in the amount of its Applicable Commitment
Percentage of the Total 364 Day Commitment, which 364 Day Note shall be dated
the Closing Date or such later date pursuant to an Assignment and Acceptance and
shall be duly completed, executed and delivered by the Borrower.
2.07 Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time, upon not less than two (2)
Business Days' written notice to the Agent to reduce the Total 364 Day
Commitment without penalty or premium (other than amounts, if any, payable under
Section 3.05). Each such reduction shall be in the aggregate amount of
$1,000,000 or such greater amount which is in an integral multiple of
$1,000,000, or the entire remaining Total 364 Day Commitment and shall
permanently reduce the Total 364 Day Commitment; provided, that a reduction made
pursuant to Section 8.05 shall be in the amount of the balance of the net
proceeds received by the Borrower or its Subsidiaries, after payment to
permanently reduce the 5 Year Facility (to the extent required under the
Existing Credit Agreement). No such reduction shall result in the payment of any
Eurodollar Loan other than on the last day of the Interest Period of such Loan
unless such prepayment is accompanied by amounts due, if any, under Section
3.05. Each reduction of the Total 364 Day Commitment shall be accompanied by
payment of the Loans to the extent that the sum of the Outstanding 364 Day
Obligations exceed the Total 364 Day Commitment, after giving effect to such
reduction, together with accrued and unpaid interest on the amounts prepaid.
2.08 Conversions and Elections of Subsequent Interest Periods. Subject to the
limitations set forth below and in Article III hereof, the Borrower may:
(a) upon delivery, effective upon receipt, of a properly completed Interest
Rate Selection Notice to the Agent on or before 10:30 A.M. time on any Business
Day, Convert all or a part of Eurodollar Loans to Base Loans on the last day of
the Interest Period for such Eurodollar Loans; and
(b) provided that no Default or Event of Default shall have occurred and be
continuing upon delivery, effective upon receipt, of a properly completed
Interest Rate Selection Notice to the Agent on or before 10:30 A.M. three (3)
Business Days' prior to the date of such election or Conversion:
(i) elect a subsequent Interest Period for all or a portion of Eurodollar
Loans to begin on the last day of the then current Interest Period for such
Eurodollar Loans; and
(ii) Convert Base Loans to Eurodollar Loans on any Business Day.
Each election and Conversion pursuant to this Section 2.08 shall be subject to
the limitations on Eurodollar Loans set forth in the definition of "Interest
Period" herein and in Section 2.01 and Article IV. The Agent shall give written
notice to each Lender of such notice of election or Conversion prior to 2:00
P.M. on the day such notice of election or Conversion is received. All such
Continuations or Conversions of Loans shall be effected pro rata based on the
Applicable Commitment Percentages of the Lenders.
2.09 Pro Rata Payments. Except as otherwise provided herein, (a) each payment
and prepayment on account of the principal of and interest on the Loans and the
fees described in Section 2.10 hereof shall be made to the Agent in the
aggregate amount payable to the Lenders for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, (b) all payments to be made by
the Borrower for the account of each of the Lenders on account of principal,
interest and fees shall be made without set-off or counterclaim, (c) the Agent
will distribute such payments when received to the Lenders as provided for
herein.
2.10 Unused Fee. For the period beginning on the Closing Date and ending on the
364 Day Termination Date (or such earlier date on which the 364 Day Facility has
terminated), the Borrower agrees to pay to the Agent, for the pro rata benefit
of the Lenders based on their Applicable Commitment Percentages an Unused Fee
equal to the Applicable Margin per annum for the 364 Day Facility times the sum
of the daily amount by which the Total 364 Day Commitment exceeds the sum of the
average daily Outstanding 364 Day Obligations. Such payments of fees provided
for in this Section shall be due in arrears on the last Business Day of each
March, June, September and December beginning December 31, 1999 to and on the
364 Day Termination Date (or such earlier date on which such Facility has
terminated). Notwithstanding the foregoing, so long as any Lender fails to make
available any portion of its 364 Day Commitment when requested, such Lender
shall not be entitled to receive payment of its pro rata share of such fees
until such Lender shall make available such portion. Such fee shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
2.11 Deficiency Advances. No Lender shall be responsible for any default of any
other Lender in respect to such other Lender's obligation to make any Loan or
Advance hereunder nor shall the 364 Day Commitment of any Lender hereunder be
increased as a result of such default of any other Lender. Without limiting the
generality of the foregoing or the provisions of Section 2.12, in the event any
Lender shall fail to advance funds to the Borrower as herein provided, the Agent
may in its discretion, but shall not be obligated to, advance under the Note in
its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made such Advance under its Note; provided that, (i) such defaulting Lender
shall not be entitled to receive payments of principal, interest or fees with
respect to such deficiency advance until such deficiency advance (together with
interest thereon as provided in clause (ii)) shall be paid by such Lender and
(ii) upon payment to the Agent from such other Lender of the entire outstanding
amount of each such deficiency advance, together with accrued and unpaid
interest thereon, from the most recent date or dates interest was paid to the
Agent by the Borrower on each Loan comprising the deficiency advance at the
Federal Funds Rate, then such payment shall be credited against the applicable
Note of the Agent in full payment of such deficiency advance and the Borrower
shall be deemed to have borrowed the amount of such deficiency advance from such
other Lender as of the most recent date or dates, as the case may be, upon which
any payments of interest were made by the Borrower thereon.
2.12 Intraday Funding. Without limiting the provisions of Section 2.11, unless
the Borrower or any Lender has notified the Agent not later than 12:00 Noon of
the Business Day before the date any payment (including in the case of Lenders
any Advance) to be made by it is due, that it does not intend to remit such
payment, the Agent may, in its discretion, assume that Borrower or each Lender,
as the case may be, has timely remitted such payment in the manner required
hereunder and may, in its discretion and in reliance thereon, make available
such payment (or portion thereof) to the Person entitled thereto as otherwise
provided herein. If such payment was not in fact remitted to the Agent in the
manner required hereunder, then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Agent the amount of such assumed payment
made available to such Lender, together with interest thereon in respect of
each day from and including the date such amount was made available by the
Agent to such Lender to the date such amount is repaid to the Agent at the
Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Agent shall be entitled
to recover such corresponding amount forthwith upon the Agent's demand
therefor, the Agent promptly shall notify the Borrower, and the Borrower
shall promptly pay such corresponding amount to the Agent in immediately
available funds upon receipt of such demand.
The Agent also shall be entitled to recover interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Agent to the Borrower to the date such corresponding amount is
recovered by the Agent, (A) from such Lender, in the case of clause (ii) above,
at a rate per annum equal to the daily Federal Funds Rate or (B) from the
Borrower, in the case of clause (i) above, at a rate per annum equal to the
interest rate applicable to the Loan which includes such corresponding amount.
Until the Agent shall recover such corresponding amount together with interest
thereon, such corresponding amount shall constitute a deficiency advance within
the meaning of Section 2.11. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its commitments hereunder or to prejudice
any rights which the Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
2.13 Use of Proceeds. The proceeds of the Loans made pursuant to the 364
Day Facility hereunder shall be used by the Borrower for working capital,
capital expenditures and other lawful general corporate purposes including
Acquisitions to the extent permitted herein.
2.14 364 Day Facility Extension and Term Loan Option.
(a) With the consent of the Lenders (the "Consenting Lenders") having
seventy-five percent (75%) or more of the aggregate Credit Exposures of all
Lenders (any Lender not so consenting being referred to as a "Non-Consenting
Lender"), at each 364 Day Extension Date the Borrower can elect to extend the
364 Day Termination Date for an additional period of 364 days commencing on such
364 Day Extension Date; provided, however, that in no event shall the 364 Day
Termination Date be extended beyond the Stated 5 Year Termination Date.
(b) The Borrower shall notify the Lenders of its request for such an extension
by delivering to the Agent notice of such request signed by an Authorized
Representative not more than sixty (60) days nor less than forty-five (45) days
prior to the applicable 364 Day Extension Date. Notice of receipt of such
request shall be provided by the Agent to the Lenders. The Agent shall notify
the Borrower in writing not later than thirty (30) days nor more than forty-five
(45) days prior to the applicable 364 Day Extension Date of the decision of the
Lenders. Failure by any Lender to respond to a request for an extension shall
constitute a refusal of such Lender to give its consent to such extension.
Failure by the Agent to give such notice to the Borrower as a result of not
receiving the consent of Lenders having seventy-five percent (75%) or more of
the aggregate Credit Exposures of all Lenders to such extension shall constitute
refusal by the Lenders to extend the 364 Day Termination Date.
(c) If less than all of the Lenders consent to any such request which has been
approved pursuant to subsection (a) of this Section 2.14, the Borrower shall
arrange not less than fifteen (15) days prior to the 364 Day Termination Date
(the "Replacement Lender Date") for one or more Consenting Lenders, or for one
or more other banks or financial institutions complying with the requirements
set forth in Section 11.01 (any of the foregoing referred to as an "Assuming
Lender"), as of the 364 Day Extension Date to effect an assignment of all of the
364 Day Commitment of one or more Non-Consenting Lenders for a purchase price
equal to the aggregate principal balance of 364 Day Loans then owing to the
Non-Consenting Lender, plus accrued interest and fees owing to the
Non-Consenting Lender, as well as any amounts payable under Section 3.05. The
Borrower shall deliver written notice to the Agent and each Consenting Lender of
such arrangement with any Assuming Lender not less than fifteen (15) days prior
to the 364 Day Termination Date.
(d) On each 364 Day Extension Date, each Assuming Lender shall become a Lender
for all purposes under this Agreement and the other Loan Documents without any
further acknowledgment by or the consent of the other Lenders; provided,
however, that the Agent shall have received not less than ten (10) days prior to
such 364 Day Extension Date an Assignment and Acceptance, effective as of such
364 Day Extension Date, from each Assuming Lender duly executed by such Assuming
Lender and the applicable Non-Consenting Lender with respect to both the 364 Day
Facility. The Total 364 Day Commitment on the 364 Day Extension Date shall be
equal to the sum, without duplication, of the 364 Day Commitments of each
Assuming Lender and each Consenting Lender.
(e) If on any 364 Day Extension Date the Borrower has not so elected to extend
the 364 Day Termination Date then in effect, or if Consenting Lenders with
sufficient Credit Exposures have not consented to such extension, or if the
Borrower shall not have satisfied requirements of clause (c) of this Section
2.14 with respect to Non-Consenting Lenders, then as of such 364 Day Termination
Date, except as provided otherwise in, and subject to the Borrower's compliance
with the terms of, Section 2.14(f) below, (i) the Total 364 Day Commitment shall
be reduced to zero, and (ii) all 364 Day Outstandings shall be due and payable
in full.
(f) If with respect to any 364 Day Extension Date the Borrower does not so elect
to extend the 364 Day Termination Date then in effect, or if Consenting Lenders
with sufficient Credit Exposures have not consented to such extension, then not
less than fifteen (15) days prior to the 364 Day Termination Date, so long as no
Default or Event of Default exists, the Borrower can elect to convert any or all
364 Day Outstandings as of such date into a term loan on such date in the
original principal amount equal to such 364 Day Outstandings. 364 Day
Outstandings so converted by the Borrower in accordance with this Section 2.14
shall be referred to as the "Term Loans." The Total 364 Day Commitment shall be
permanently reduced on the 364 Day Termination Date to an amount equal to the
aggregate principal amount of the Term Loans on such date. The Term Loans shall
be repaid upon the earlier of one year following the 364 Day Termination Date or
the 5 Year Termination Date. The Term Loans may be comprised of Base Loans and
Eurodollar Loans as the Borrower may elect in accordance with the provisions of
this Article II for 364 Day Loans. The Term Loans shall bear interest on the
same terms as the 364 Day Loans prior to the conversion to Term Loans until the
Continuation or Conversion thereof pursuant to Section 2.08 hereof. Amounts
repaid or prepaid on the Term Loans may not be reborrowed, and the 364 Day
Commitment shall be permanently reduced by any such amounts. The Borrower shall
pay to the Agent for the benefit of the Lenders on the day of conversion of 364
Day Outstanding Term Loans a fee equal to one-quarter of one percent (1/4%) of
the principal amount of the Term Loans.
(g) If on the 364 Day Termination Date the Borrower does not so elect to
convert all of 364 Day Outstandings as of such date to Term Loans as
described in (f) above, then on the 364 Day Termination Date, (i) all 364
Day Outstandings as of such date which are not so converted shall be due
and payable in full and (ii) the Total 364 Day Commitment shall be reduced
to the amount, if any, of 364 Day Outstandings so converted to Term Loans.
ARTICLE III
Change in Circumstances
3.01 Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office) to any
tax, duty, or other charge with respect to any Eurodollar Loans, its Note, or
its obligation to make Eurodollar Loans, or change the basis of taxation of any
amounts payable to such Lender (or its Applicable Lending Office) under this
Agreement or its Note in respect of any Eurodollar Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office or such Applicable Lending Office or
franchise taxes or related taxes imposed on such Lender);
(ii) shall impose, modify, or deem applicable any reserve, special deposit,
assessment, or similar requirement (other than the Reserve Requirement
utilized in the determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or its Applicable Lending
Office), including the 364 Day Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office) or on
the London interbank market any other condition affecting this Agreement or
its Note or any of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Agreement or its Note
with respect to any Eurodollar Loans, then the Borrower shall pay to such Lender
on demand such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by the Borrower
under this Section 3.01(a), the Borrower may, by notice to such Lender (with a
copy to the Agent), suspend the obligation of such Lender to make or Continue
Loans of the Type with respect to which such compensation is requested, or to
Convert Loans of any other Type into Loans of such Type, until the event or
condition giving rise to such request ceases to be in effect (in which case the
provisions of Section 3.04 shall be applicable); provided that such suspension
shall not affect the right of such Lender to receive the compensation so
requested.
(b) If, after the date hereof, any Lender shall have determined that the
adoption of any applicable law, rule, or regulation regarding capital adequacy
or any change therein or in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which
will entitle such Lender to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will
not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this Section
shall prior to its collection furnish to the Borrower and the Agent a
statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
3.02. Limitation on Types of Loans. If on or prior to the first day of any
Interest Period for any Eurodollar Loan;
(a) the Agent determines (which determination shall be conclusive absent
manifest error) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period; or
(b) the Required Lenders determine (which determination shall be conclusive)
and notify the Agent that the Eurodollar Rate will not adequately and fairly
reflect the cost to the Lenders of funding Eurodollar Loans for such Interest
Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
3.03 Illegality. Notwithstanding any other provision of this Agreement, in the
event that it becomes unlawful for any Lender or its Applicable Lending Office
to make, maintain, or fund Eurodollar Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender's obligation to make or
Continue Eurodollar Loans and to Convert other Types of Loans into Eurodollar
Loans shall be suspended until such time as such Lender may again make,
maintain, and fund Eurodollar Loans (in which case the provisions of Section
3.04 shall be applicable).
3.04 Treatment of Affected Loans. If the obligation of any Lender to make a
particular Eurodollar Loan or to Continue, or to Convert Loans of any other Type
into, Loans of a particular Type shall be suspended pursuant to Section 3.01 or
3.03 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Loans on the last day(s) of the then
current Interest Period(s) for Affected Loans (or, in the case of a Conversion
required by Section 3.03 hereof, on such earlier date as such Lender may specify
to the Borrower with a copy to the Agent) and, unless and until such Lender
gives notice as provided below that the circumstances specified in Section 3.01
or 3.03 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so Converted,
all payments and prepayments of principal that would otherwise be applied to
such Lender's Affected Loans shall be applied instead to its Base Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender as
Loans of the Affected Type shall be made or Continued instead as Base Loans, and
all Loans of such Lender that would otherwise be Converted into Loans of the
Affected Type shall be Converted instead into (or shall remain as) Base Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.01 or 3.03 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 3.04 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Commitments.
3.05 Compensation. Upon the request of any Lender, the Borrower shall pay
to such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan for any
reason (including, without limitation, the acceleration of the Loans pursuant to
Section 9.01) on a date other than the last day of the Interest Period for such
Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Article V to be
satisfied) to borrow, Convert, Continue, or prepay a Eurodollar Loan on the date
for such borrowing, Conversion, Continuation, or prepayment specified in the
relevant notice of borrowing, prepayment, Continuation, or Conversion under this
Agreement.
3.06 Taxes. (a) Any and all payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any other Loan Document
to any Lender or the Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 3.06) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in Section 11.02, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Agreement or any
other Loan Document or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 3.06) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the United
States, on or prior to the date of its execution and delivery of this Agreement
in the case of each Lender listed on the signature pages hereof and on or prior
to the date on which it becomes a Lender in the case of each other Lender, and
from time to time thereafter if requested in writing by the Borrower or the
Agent (but only so long as such Lender remains lawfully able to do so), shall
provide the Borrower and the Agent with (i) Internal Revenue Service Form 1001
or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender is entitled to an
exemption from tax on payments pursuant to this Agreement or any of the other
Loan Documents.
(e) For any period with respect to which a Lender has failed to provide the
Borrower and the Agent with the appropriate form pursuant to Section 3.06(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 3.06(a) or
3.06(b) with respect to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes at the Lender's expense.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 3.06, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender, is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the Borrower
shall furnish to the Agent the original or a certified copy of a receipt
evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 3.06 shall survive the termination of the Commitments and the payment in
full of the Notes.
(i) To the extent that the payment of any Lender's Taxes by the Borrower in
accordance with this Section 3.06 gives rise from time to time to a Tax Benefit
(as hereinafter defined) to such Lender in any jurisdiction other than the
jurisdiction which imposed such Taxes, such Lender shall pay to the Borrower the
amount of each such Tax Benefit so recognized or received. The amount of each
Tax Benefit and, therefore, payment to the Borrower will be determined from time
to time by the relevant Lender in its sole discretion, which determination shall
be binding and conclusive on all parties hereto. Each such payment will be due
and payable by such Lender to the Borrower within a reasonable time after the
filing of the income tax return in which such Tax Benefit is recognized or, in
the case of any tax refund, after the refund is received; provided, however, if
at any time thereafter such Lender is required to rescind such Tax Benefit or
such Tax Benefit is otherwise disallowed or nullified, the Borrower shall
promptly, after notice thereof from such Lender, repay to Lender the amount of
such Tax Benefit previously paid to the Borrower and rescinded, disallowed or
nullified. For purposes of this section, "Tax Benefit" shall mean the amount by
which any Lender's income tax liability for the taxable period in question is
reduced below what would have been payable had the Borrower not been required to
pay the Lender's Taxes. In case of any dispute with respect to the amount of any
payment the Borrower shall have no right to any offset or withholding of
payments with respect to future payments due to any Lender under this Agreement
or the Notes.
ARTICLE IV
Guaranties
4.01 Guaranties. As security for the full and timely payment and performance
of all Obligations, the Loan Parties shall on or before the Closing Date do all
things necessary in the opinion of the Agent to cause each of its Material
Subsidiaries and its Receivables Subsidiaries to execute and deliver to the
Agent for the benefit of the Lenders the Guaranty Agreement.
ARTICLE V
Conditions to Making Loans
5.01 Conditions of Advance. The obligation of the Lenders to make the
initial Advance pursuant to this Agreement is subject to the conditions
precedent that the Agent shall have received on the Closing Date, in form and
substance satisfactory to the Agent and the Lenders, the following:
(a) executed originals of each of this Agreement, the Notes and the other Loan
Documents, together with all schedules and exhibits thereto;
(b) favorable written opinions of special counsel to the Loan Parties dated
the Closing Date, addressed to the Lender substantially in the form of Exhibits
G-1 and G-2 attached hereto;
(c) resolutions of the boards of directors or other appropriate governing
body (or of the appropriate committee thereof) of the Loan Parties certified by
its secretary or assistant secretary as of the Closing Date, appointing (in the
case of the Borrower) the initial Authorized Representative and approving and
adopting the Loan Documents to be executed by such Person, and authorizing the
execution and delivery thereof;
(d) specimen signatures of officers of each of the Loan Parties executing
the Loan Documents on behalf of such Person, certified by the secretary or
assistant secretary of the Borrower or Guarantor, as applicable;
(e) the charter documents and bylaws of each of the Loan Parties, certified by
the secretary or assistant secretary of such Guarantor;
(f) certificates issued as of a recent date by the Secretaries of State of
the jurisdiction of incorporation of each of the Loan Parties as to the due
existence and good standing of the Borrower and each Guarantor therein;
(g) appropriate certificates of qualification to do business, good standing
and, where appropriate, authority to conduct business under assumed name, issued
in respect of the Borrower as of a recent date by the Secretary of State or
comparable official of each jurisdiction in which the failure to be qualified to
do business or authorized so to conduct business could materially adversely
affect the business, operations or conditions, financial or otherwise, of the
Borrower or any Guarantor;
(h) receipt by the Agent and the Lenders of such fees and other
consideration as may be required by the terms of the commitment to lend;
(i) notice of appointment of the initial Authorized Representative;
(j) evidence of insurance required by the Loan Documents;
(k) evidence of amendment of the Existing Credit Agreement; and
(l) such other documents, instruments, certificates and opinions as the
Agent may reasonably request on or prior to the Closing Date in connection with
the consummation of the transactions contemplated hereby.
5.02 Conditions of Loans. The obligations of the Lenders to make any Loans
hereunder on or subsequent to the Closing Date are subject to the satisfaction
of the following conditions:
(a) the Agent shall have received a Borrowing Notice if required by Article
II hereof;
(b) the representations and warranties of the Borrower set forth in Article VI
hereof and in each of the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Advance with the same effect as
though such representations and warranties had been made on and as of such date,
except to the extent that such representations and warranties expressly relate
to an earlier date and except that the financial statements referred to in
Section 6.01(f)(i) shall be deemed (solely for the purpose of the representation
and warranty contained in such Section 6.01(f)(i) or to financial statements
described therein contained in any other provision of Section 6.01(f) or
elsewhere in Article VI) to be those financial statements most recently
delivered to the Agent and the Lenders pursuant to Section 7.01 hereof;
(c) at the time of, and after giving effect to, each such Advance no Default
or Event of Default specified in Article IX hereof, shall have occurred and be
continuing; and
(d) immediately after giving effect to a 364 Day Loan, the aggregate
principal amount of all outstanding 364 Day Loans for each Lender shall not
exceed such Lender's 364 Day Commitment.
Each borrowing of Loans shall constitute a representation and warranty by the
Borrower that the conditions set forth in clauses (b) and (d) above have been
satisfied as of the date thereof and that as of the date of such Advance there
has not been any material adverse change in the business, operations or
financial condition of the Borrower and its Subsidiaries.
ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties. The Borrower represents and warrants
with respect to itself and each Subsidiary (which representations and warranties
shall survive the delivery of the documents mentioned herein and the making of
Loans), that:
(a) Organization and Authority.
(i) the Borrower is a corporation duly organized and validly existing under
the laws of the jurisdiction of its incorporation;
(ii) the Borrower (x) has the requisite power and authority to own its
properties and assets and to carry on its business as now being conducted and as
contemplated in the Loan Documents, and (y) is qualified to do business in every
jurisdiction in which failure so to qualify would have a Material Adverse
Effect;
(iii) the Borrower has the power and authority to execute, deliver and perform
this Agreement and the Notes, and to borrow hereunder, and to execute, deliver
and perform each of the other Loan Documents to which it is a party;
(iv) each Guarantor has the power and authority to execute, deliver and
perform the Guaranty Agreement and each of the other Loan Documents to which it
is a party; and
(v) when executed and delivered, each of the Loan Documents to which Borrower
and any Guarantor is a party will be the legal, valid and binding obligation or
agreement, as the case may be, of the Borrower or Guarantor, as the case may be,
enforceable against the Borrower and such Guarantor in accordance with its
terms, subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the enforceability of
creditors' rights generally, to the effect of general principles of equity which
may limit the availability of equitable remedies (whether in a proceeding at law
or in equity).
(b) Loan Documents. The execution, delivery and performance by the Loan Parties
of each of the Loan Documents to which it is a party:
(i) have been duly authorized by all requisite corporate action (including
any required shareholder approval) of each of the Loan Parties required for the
lawful execution, delivery and performance thereof;
(ii) do not violate any provisions of (1) any applicable law, rule or
regulation, (2) any order of any court or other agency of government binding on
the Loan Parties or their respective properties, or (3) the charter documents or
by-laws of the Loan Parties;
(iii) does not and will not be in conflict with, result in a breach of or
constitute an event of default, or an event which, with notice or lapse of time,
or both, would constitute an event of default, under any material indenture,
agreement or other instrument to which the Loan Parties are a party, or by which
the properties or assets of the Loan Parties are bound;
(iv) does not and will not result in the creation or imposition of any Lien,
charge or encumbrance of any nature whatsoever upon any of the properties or
assets of the Loan Parties except any liens in favor of the Agent for the
benefit of the Lenders created by the Loan Documents.
(c) Solvency. Borrower is Solvent after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents.
(d) Subsidiaries and Stockholders. Borrower has no Subsidiaries other than those
Persons listed as Subsidiaries in Schedule 6.01(d) hereto other than inactive
Subsidiaries; Schedule 6.01(d) to this Agreement states as of the date hereof
the authorized and issued capitalization of each Subsidiary listed thereon, the
number of shares or other equity interests of each class of capital stock or
interest issued and outstanding of each such Subsidiary and the number and/or
percentage of outstanding shares or other equity interest (including options,
warrants and other rights to acquire any interest) of each such class of capital
stock or equity interest owned by Borrower or by any such Subsidiary; the
outstanding shares or other equity interests of each such Subsidiary have been
duly authorized and validly issued and are fully paid and nonassessable; and
Borrower and each such Subsidiary owns beneficially and of record all the shares
and other interests it is listed as owning in Schedule 6.01(d), free and clear
of any Lien.
(e) Ownership Interests. Borrower owns no interest in any Person other than
the Persons listed in Schedule 6.01(d) hereto and Eligible Securities;
(f) Financial Condition. (i) The Borrower (f/k/a AssuStaff, Incorporated) has
heretofore furnished to the Agent for the benefit of the Lenders (a) an audited
consolidated balance sheet of the Borrower and its Subsidiaries as at December
31, 1997 and December 31, 1998 and the notes thereto and related consolidated
statements of income, stockholders' equity and cash flows for each of the three
years in the period ended December 31, 1998 as examined and certified by
PricewaterhouseCoopers LLP (f/k/a Coopers & Lybrand), (b) an unaudited
consolidated balance sheet of the Borrower and its Subsidiaries (excluding the
Strategix Subsidiaries) and the related unaudited consolidated statements of
income, stockholders' equity and cash flows for each of the three years in the
period ended December 31, 1998 and (c) unaudited interim financial statements of
the Borrower and its Subsidiaries consisting of a consolidated balance sheet and
related consolidated statements of income and cash flow, in each case without
notes, for and as of the six month period ending June 30, 1999. Except as set
forth therein, such financial statements (including the notes thereto) present
fairly the financial condition of the Borrower and its Subsidiaries (other than
the Strategix Subsidiaries where indicated above) as of the end of such Fiscal
Years and six month period and results of their operations and the changes in
their stockholders' equity for the Fiscal Years and interim periods then ended,
all in conformity with Generally Accepted Accounting Principles applied on a
Consistent Basis, subject however, in the case of unaudited interim statements
to year end adjustments to the extent applicable;
(ii) since December 31, 1998, there has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its Subsidiaries
considered as a whole or in the businesses, properties and operations of the
Borrower and its Subsidiaries, considered as a whole, nor have such businesses
or properties, considered as a whole, been materially adversely affected as a
result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God;
(iii) except as set forth in the financial statements referred to in Section
6.01(f)(i) or in Schedule 6.01(f) or Schedule 6.01(j) hereto, neither Borrower
nor any Subsidiary has incurred, other than in the ordinary course of business,
any material indebtedness, obligations, commitments or other liability
contingent or otherwise which remain outstanding or unsatisfied;
(g) Title to Properties. The Borrower has title to all its real and
personal properties, subject to no transfer restrictions or Liens of any kind,
except for (x) the transfer restrictions and Liens described in Schedule
6.01(g)-Liens attached hereto and incorporated herein by reference, and (y) any
other Permitted Liens;
(h) Taxes. The Borrower and each Subsidiary has filed or caused to be filed
all federal, state and local tax returns which are required to be filed by it
and except for taxes and assessments being contested in good faith and against
which reserves satisfactory to the Borrower's independent certified public
accountants have been established, has paid or caused to be paid all taxes as
shown on said returns or on any assessment received by it, to the extent that
such taxes have become due;
(i) Other Agreements. Neither the Borrower nor any Subsidiary is
(i) a party to any judgment, order, decree or any agreement or instrument or
subject to restrictions materially adversely affecting the business, properties
or assets, operation or condition (financial or otherwise) of the Borrower or
any Subsidiary considered as a whole; or
(ii) in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement or instrument
to which the Borrower or any Subsidiary is a party, which default has, or if not
remedied within any applicable grace period could have a Material Adverse
Effect;
(j) Litigation. Except as set forth in Schedule 6.01(j) hereto, there is no
action, suit or proceeding at law or in equity or by or before any governmental
instrumentality or agency or arbitral body pending, or, to the knowledge of the
Borrower, threatened by or against the Borrower or any Subsidiary or affecting
the Borrower or any Subsidiary or any properties or rights of the Borrower or
any Subsidiary, which could reasonably be expected to have a Material Adverse
Effect;
(k) Margin Stock. The proceeds of the borrowings made pursuant to Article II
hereof will be used by the Borrower only for the purposes set forth in Section
2.13 hereof. None of such proceeds will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin stock or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry margin stock or for any other purpose which might constitute any of the
Loans under this Agreement a "purpose credit" within the meaning of said
Regulation U or Regulation X (12 C.F.R. Part 224) of the Board. Neither the
Borrower nor any agent acting in its behalf has taken or will take any action
which might cause this Agreement or any of the documents or instruments
delivered pursuant hereto to violate any regulation of the Board or to violate
the Securities Exchange Act of 1934, as amended, or the Securities Act of 1933,
as amended, or any state securities laws, in each case as in effect on the date
hereof;
(l) Investment Company. Neither the Borrower nor any Subsidiary is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (15 U.S.C. 80a-1, et seq.). The
application of the proceeds of the Loans and repayment thereof by the Borrower
and the performance by the Borrower of the transactions contemplated by this
Agreement will not violate any
provision of said Act, or any rule, regulation or order issued by the Securities
and Exchange Commission thereunder, in each case as in effect on the date
hereof;
(m) Patents, Etc. Except as set forth in Schedule 6.01(j), the Borrower and each
Subsidiary owns or has the right to use, under valid license agreements or
otherwise, all material patents, licenses, franchises, trademarks, trademark
rights, trade names, trade name rights, trade secrets and copyrights necessary
to the conduct of its business as now conducted, without known conflict with any
patent, license, franchise, trademark, trade secrets and confidential commercial
or proprietary information, trade name, copyright, rights to trade secrets or
other proprietary rights of any other Person which conflict could reasonably be
expected to have a Material Adverse Effect;
(n) No Untrue Statement. Neither this Agreement nor any other Loan Document
or certificate or document executed and delivered by or on behalf of the
Borrower or any Guarantor in accordance with or pursuant to any Loan Document
contains any misrepresentation or untrue statement of material fact or omits to
state a material fact necessary, in light of the circumstance under which it was
made, in order to make any such representation or statement contained therein
not misleading in any material
respect;
(o) No Consents, Etc. Neither the respective businesses or properties of the
Borrower or any Subsidiary, nor any relationship between the Borrower or any
Subsidiary and any other Person, nor any circumstance in connection with the
execution, delivery and performance of the Loan Documents and the transactions
contemplated hereby is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any governmental or other
authority or any other Person on the part of the Borrower or any Subsidiary as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by, this Agreement or the other Loan Documents or if
so, such consent, approval, authorization, filing, registration or qualification
has been obtained or effected, as the case may be;
(p) ERISA.
(i) None of the employee benefit plans maintained at any time by the
Borrower or any Subsidiary or the trusts created thereunder has engaged in a
prohibited transaction which could subject any such employee benefit plan or
trust to a material tax or penalty on prohibited transactions imposed under
Internal Revenue Code Section 4975 or ERISA;
(ii) None of the employee benefit plans maintained at any time by the Borrower
or any Subsidiary which are employee pension benefit plans and which are subject
to Title IV of ERISA or the trusts created thereunder has been terminated so as
to result in a material liability of the Borrower or any Subsidiary under ERISA
nor has any such employee benefit plan of the Borrower or any Subsidiary
incurred any material liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA, other than for required insurance which have been
paid or are not yet due and payable; neither the Borrower nor any Subsidiary has
withdrawn from or caused a partial withdrawal to occur with respect to any
Multi-employer Plan resulting in any assessed and unpaid withdrawal liability;
the Borrower and each Subsidiary has made or provided for all contributions to
all such employee pension benefit plans which they maintain and which are
required as of the end of the most recent fiscal year under each such plan;
neither the Borrower nor any Subsidiary has incurred any accumulated funding
deficiency with respect to any such plan, whether or not waived; nor has there
been any reportable event, or other event or condition, which presents a
material risk of termination of any such employee benefit plan by such Pension
Benefit Guaranty Corporation;
(iii) The present value of all vested accrued benefits under the employee
pension benefit plans which are subject to Title IV of ERISA, maintained by the
Borrower or any Subsidiary did not, as of the most recent valuation date for
each such plan, exceed the then current value of the assets of such employee
benefit plans allocable to such benefits;
(iv) The consummation of the Loans provided for in Article II will not
involve any prohibited transaction under ERISA which is not subject to a
statutory or administrative exemption;
(v) To the best of the Borrower's knowledge, each employee pension benefit
plan subject to Title IV of ERISA, maintained by the Borrower or any Subsidiary,
has been administered in accordance with its terms in all material respects and
is in compliance in all material respects with all applicable requirements of
ERISA and other applicable laws, regulations and rules;
(vi) There has been no material withdrawal liability incurred and unpaid with
respect to any Multi-employer Plan to which the Borrower or any Subsidiary is or
was a contributor;
(vii) As used in this Agreement, the terms "employee benefit plan," "employee
pension benefit plan," "accumulated funding deficiency," "reportable event," and
"accrued benefits" shall have the respective meanings assigned to them in ERISA,
and the term "prohibited transaction" shall have the meaning assigned to it in
Code Section 4975 and ERISA;
(viii) Neither the Borrower nor any Subsidiary has any liability not disclosed
on any of the financial statements furnished to the Lenders pursuant to Section
6.01(f) hereof, contingent or otherwise, under any plan or program or the
equivalent for unfunded post-retirement benefits, including pension, medical and
death benefits, which liability would have a Material Adverse Effect.
(q) No Default. As of the date hereof, there does not exist any Default or
Event of Default hereunder;
(r) Hazardous Materials. The Borrower and each Subsidiary is in compliance
with all applicable Environmental Laws in all material respects. Neither the
Borrower nor any Subsidiary has been notified of any action, suit, proceeding or
investigation which calls into question compliance by the Borrower or any
Subsidiary with any Environmental Laws or which seeks to suspend, revoke or
terminate any license, permit or approval necessary for the generation,
handling, storage, treatment or disposal of
any Hazardous Material;
(s) RICO. Neither the Borrower nor any Subsidiary is engaged in and has not
engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws;
(t) Employment Matters. Except as set forth on Schedule 6.01(t), the Borrower
and each Subsidiary is in compliance in all material respects with all
applicable laws, rules and regulations pertaining to labor or employment
matters, including without limitation those pertaining to wages, hours,
occupational safety and taxation and there is neither pending or threatened any
material litigation, administrative proceeding nor, to the knowledge of the
Borrower, any investigation, in respect of such matters which could reasonably
be expected to have a Material Adverse Effect;
(u) Year 2000 Compliance. The Borrower and its Subsidiaries have (i) initiated a
review and assessment of all areas within its and each of its Subsidiaries'
business and operations (including those affected by information received from
suppliers and vendors) that could reasonably be expected to be materially
adversely affected by the Year 2000 Problem, (ii) developed a plan and time line
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable. The
Borrower reasonably believes that all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will on a
timely basis be Year 2000 Compliant, except to the extent that a failure to do
so could not reasonably be expected to have Material Adverse Effect.
ARTICLE VII
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this Agreement
has been terminated in accordance with the terms hereof, unless the Required
Lenders shall otherwise consent in writing, the Borrower will and will cause
each Subsidiary to:
7.01 Financial Reports, Etc. (a) as soon as practical and in any event within 95
days after the end of each Fiscal Year of the Borrower, deliver or cause to be
delivered to the Agent (i) a consolidated balance sheet of the Borrower and its
Subsidiaries, and the notes thereto, and the related consolidated statements of
income, stockholders' equity and cash flows and the respective notes thereto,
for such Fiscal Year, setting forth comparative financial statements for the
preceding Fiscal Year, all prepared in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis and containing opinions of
PricewaterhouseCoopers LLP, or other such independent certified public
accountants selected by the Borrower and approved by the Agent, which are
unqualified as to the scope of the audit performed and as to the "going concern"
status of the Borrower; and (ii) a certificate of an Authorized Representative
demonstrating compliance with Sections 8.01, 8.02, 8.03, 8.04(d), 8.06(vi) and
8.08 of this Agreement, which certificate shall be in the form attached hereto
as Exhibit H;
(b) as soon as practical and in any event within 50 days after the end of each
fiscal quarter (except the last of the Fiscal Year), deliver to the Agent (i) a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such reporting period, the related consolidated statements of income,
stockholders' equity and cash flows for such reporting period and for the period
from the beginning of the Fiscal Year through the end of such reporting period,
accompanied by a certificate of an Authorized Representative to the effect that
such financial statements present fairly the financial position of the Borrower
and its Subsidiaries as of the end of such reporting period and the results of
their operations and the changes in their financial position for such reporting
period, in conformity with the standards set forth in Section 6.01(f)(i) with
respect to interim financials and (ii) a certificate of an Authorized
Representative containing computations for such quarter comparable to that
required pursuant to Section 7.01(a)(ii);
(c) together with each delivery of the financial statements required by Section
7.01(a)(i) hereof, deliver to the Agent a letter from the Borrower's accountants
specified in Section 7.01(a)(i) hereof stating that in performing the audit
necessary to render an opinion on the financial statements delivered under
Section 7.01(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower or any Guarantor in the fulfillment of the terms and
provisions of this Agreement insofar as they relate to financial covenants
(which at the date of such statement remains uncured); and if the accountants
have obtained knowledge of such Default or Event of Default, a statement
specifying the nature and period of existence thereof;
(d) promptly upon their becoming available to the Borrower, the Borrower shall
deliver to the Agent a copy of (i) all regular or special reports or effective
registration statements which Borrower or any Subsidiary shall file with the
Securities and Exchange Commission (or any successor thereto) or any securities
exchange, (ii) any proxy statement distributed by the Borrower to its
shareholders, bondholders or the financial community in general, and (iii) any
management letter or other report submitted to the Borrower or any of its
Subsidiaries by independent accountants in connection with any annual, interim
or special audit of the Borrower or any of its Subsidiaries;
(e) The Agent and the Lenders are hereby authorized to deliver a copy of any
such financial information delivered hereunder to the Lenders (or any affiliate
of any Lender) or the Agent, to any regulatory authority having jurisdiction
over the Agent or the Lenders pursuant to any request therefor, to any other
Person who shall acquire or consider the acquisition of a participation interest
in or assignment of any Loan permitted by this Agreement and to any affiliate of
the Lenders.
7.02 Maintain Properties. Maintain all material properties necessary to its
operations in good working order and condition (ordinary wear and tear excepted)
and make all needed repairs, replacements and renewals as are necessary to
conduct its business in accordance with customary business practices.
7.03 Existence, Qualification, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits and maintain
its license or qualification to do business as a foreign corporation and good
standing in each jurisdiction in which the failure to so maintain or qualify
would have a material adverse affect on the Borrower or its Subsidiaries
considered as a whole.
7.04 Regulations and Taxes. Comply with or contest in good faith all
material statutes and governmental regulations and pay all material taxes,
assessments, governmental charges, claims for labor, supplies, rent and any
other obligation which, if unpaid, might become a Lien against any of its
properties except liabilities being contested in good faith and against which
adequate reserves have been established in accordance with Generally Accepted
Accounting Principles and liabilities.
7.05 Insurance. (i) Keep all of its insurable properties adequately insured at
all times with responsible insurance carriers against loss or damage by fire and
other hazards to the extent and in the manner customarily insured against by
similar businesses owning such properties similarly situated, (ii) maintain
general public liability insurance at all times with responsible insurance
carriers against liability on account of damage to persons and property having
such limits, deductibles, exclusions and co-insurance and other provisions
providing no less coverage than that specified in Schedule 7.05 attached hereto,
such insurance policies to be in form satisfactory to the Agent, and (iii)
maintain insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes).
7.06 True Books. Keep true books of record and account in which full, true
and correct entries will be made of all of its dealings and transactions, and
set up on its books such reserves as may be required by Generally Accepted
Accounting Principles with respect to doubtful accounts and all taxes,
assessments, charges, levies and claims and with respect to its business in
general, and include such reserves in interim as well as year-end financial
statements.
7.07 Year 2000 Compliance. The Borrower will promptly notify the Agent and
the Lenders in the event the Borrower discovers or determines that any computer
application (including those affected by information received from its suppliers
and vendors) that is material to its or any of its Subsidiaries' business and
operations will not be Year 2000 Compliant on a timely basis, except to the
extent that such failure could not reasonably be expected to have a Material
Adverse Effect.
7.08 Right of Inspection. Permit the Agent and any Lender and accountants,
attorneys or other consultants designated by the Agent and any Lender at the
Agent or any Lender's expense to visit and inspect any of the properties,
corporate books and financial reports of the Borrower and its Subsidiaries, and
to discuss their respective affairs, finances and accounts with their principal
executive officers and independent certified public accountants, all at times
reasonably convenient to the Borrower, at reasonable intervals and with
reasonable prior notice. Subject to Section 11.17, the Agent and each Lender and
such accountants, attorneys or other consultants shall treat all information
received by it pursuant to this Section as confidential to the extent such
information is not generally available to other Persons and shall, at the
request of Borrower, execute a confidentiality agreement.
7.09 Observe all Laws. Conform to and duly observe in all material respects
all laws, rules and regulations and all other valid requirements of any
regulatory authority with respect to the conduct of its business where the
failure to comply would be reasonably expected to result in a Material Adverse
Effect.
7.10 Officer's Knowledge of Default. Upon the President, Chief Financial
Officer or the Controller of the Borrower obtaining actual knowledge of any
Default or Event of Default hereunder or under any other obligation of the
Borrower or any Subsidiary described in Section 9.01(e), cause such officer or
an Authorized Representative to promptly notify the Agent of the nature thereof,
the period of existence thereof, and what action the Borrower proposes to take
with respect thereto.
7.11 Suits or Other Proceedings. Upon the President, Chief Financial Officer or
the Controller of the Borrower obtaining actual knowledge of any litigation or
other proceedings being instituted against the Borrower or any Subsidiary, or
any attachment, levy, execution or other process being instituted against any
assets of the Borrower or any Subsidiary, in an aggregate amount greater than
$500,000 not otherwise covered by insurance, promptly deliver to the Agent
written notice thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process.
7.12 Notice of Discharge of Hazardous Material or Environmental Complaint.
Promptly provide to the Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims, or citations received by the
Borrower or any Subsidiary relating to any material (a) violation or alleged
violation by the Borrower or any Subsidiary of any applicable Environmental Laws
or OSHA; (b) release or threatened release by the Borrower or any Subsidiary of
any Hazardous Material, except where occurring legally; or (c) liability or
alleged liability of the Borrower or any Subsidiary for the costs of cleaning
up, removing, remediating or responding to a release of Hazardous Materials.
7.13 Environmental Compliance. If the Borrower or any Subsidiary shall
receive notice from any governmental authority that the Borrower or any
Subsidiary has violated any applicable Environmental Laws, the Borrower shall to
the extent required by law and after expiration of all valid appeals and
administrative proceedings (and in any event within the time period permitted by
the applicable governmental authority) remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation.
7.14 Indemnification. The Borrower hereby agrees to defend, indemnify and hold
the Agent and each Lender harmless from and against any and all claims, losses,
liabilities, damages and expenses (including, without limitation, cleanup costs
and reasonable attorneys' fees) arising directly or indirectly from, out of or
by reason of the handling, storage, treatment, emission or disposal of any
Hazardous Material by or in respect of the Borrower or any Subsidiary or
property owned or leased or operated by the Borrower or any Subsidiary. The
provisions of this Section 7.14 shall survive repayment of the Obligations,
occurrence of the 364 Day Termination Date and expiration or termination of this
Agreement.
7.15 Further Assurances. At its cost and expense, upon request of the
Agent, duly execute and deliver or cause to be duly executed and delivered, to
the Agent such further instruments, documents, certificates, financing and
continuation statements, and do and cause to be done such further acts that may
be reasonably necessary or advisable in the reasonable opinion of the Agent to
carry out more effectively the provisions and purposes of this Agreement and the
other Loan Documents.
7.16 ERISA Requirement. Comply in all material respects with all requirements of
ERISA applicable to it and furnish to the Agent as soon as possible and in any
event (i) within thirty (30) days after the Borrower knows or has reason to know
that any reportable event with respect to any employee benefit plan subject to
Title IV of ERISA maintained by the Borrower or any Subsidiary which could
reasonably be expected to give rise to termination or the imposition of any
material tax or penalty has occurred, written statement of an Authorized
Representative describing in reasonable detail such reportable event and any
action which the Borrower or applicable Subsidiary proposes to take with respect
thereto, together with a copy of the notice of such reportable event given to
the Pension Benefit Guaranty Corporation ("PBGC") or a statement that said
notice will be filed with the annual report of the United States Department of
Labor with respect to such plan if such filing has been authorized, (ii)
promptly after receipt thereof, a copy of any notice that the Borrower or any
Subsidiary may receive from the PBGC relating to the intention of the PBGC to
terminate any employee benefit plan or plans of the Borrower or any Subsidiary
or to appoint a trustee to administer any such plan which could reasonably be
expected to result in a Material Adverse Effect, and (iii) within 10 days after
a filing with the PBGC pursuant to Section 412(n) of the Code of a notice of
failure to make a required installment or other payment with respect to a plan,
a certificate of an Authorized Representative setting forth details as to such
failure and the action that the Borrower or its affected Subsidiary, as
applicable, proposes to take with respect thereto, together with a copy of such
notice given to the PBGC.
7.17 Continued Operations. Continue at all times (i) to conduct its business and
engage principally in a line or lines of business involving the furnishing of
personnel related services, and (ii) preserve, protect and maintain free from
Liens its material patents, copyrights, licenses, trademarks, trademark rights,
trade names, trade name rights, trade secrets and know-how necessary or useful
in the conduct of its operations, except to the extent Borrower or its
Subsidiaries is otherwise permitted hereunder to dispose of assets.
7.18 Use of Proceeds. Use the proceeds of the Loans solely for the purposes
specified in Section 2.13 hereof.
ARTICLE VIII
Negative Covenants
Until the Obligations have been paid and satisfied in full and this Agreement
has been terminated in accordance with the terms hereof, unless the Required
Lenders shall otherwise consent in writing, the Borrower will not, nor will it
permit any Subsidiary to:
8.01 Consolidated Leverage Ratio. Permit at the end of each fiscal quarter
the Consolidated Leverage Ratio to exceed 3.00 to 1.00.
8.02 Consolidated Fixed Charge Ratio. Permit at the end of each fiscal
quarter the Consolidated Fixed Charge Ratio to be less than 1.50 to 1.00.
8.03 Consolidated Capitalization Ratio. Permit at any time the Consolidated
Capitalization Ratio to exceed .50 to 1.00.
8.04 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except
(a) Indebtedness existing as of the date hereof and as set forth in
Schedule 8.04 attached hereto and incorporated herein by reference and any
refinancings, renewals or extensions (including substitutions or replacement of
properties by newly acquired properties) thereof and containing covenants no
more restrictive than those contained in this Agreement and providing no
increase in the amount of such Indebtedness;
(b) the endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business;
(c) Indebtedness arising under the Existing Credit Agreement and this
Agreement;
(d) additional unsecured Indebtedness of the Borrower or Guarantors, or
both, in an aggregate outstanding amount not to exceed at any time 20% of
Consolidated Shareholders' Equity;
(e) Capital Leases and purchase money Indebtedness described in Section
8.07 not to exceed at any time an aggregate outstanding principal amount of
$20,000,000; and
(f) additional unsecured Indebtedness of Subsidiaries which are not
Guarantors in an aggregate outstanding amount not to exceed $5,000,000.
For purposes of determining the amount of Indebtedness incurred in connection
with an Acquisition, any Indebtedness which under Generally Accepted Accounting
Principles must be recorded as a liability on the consolidated balance sheet of
the Borrower, whether or not constituting a Contingent Obligation or
Indebtedness for Money Borrowed, shall be deemed Indebtedness at 100% of the
amount thereof for purposes of this Section 8.04, and to the extent such
Indebtedness is not so required to be recorded as a liability, it shall not be
deemed Indebtedness for purposes of this Section 8.04. Indebtedness incurred
under clause (d) above may be secured by Letters of Credit issued pursuant to
the Existing Credit Agreement.
8.05 Transfer of Assets. Sell, lease, transfer or otherwise dispose of (i) any
interest in any Subsidiary, or (ii) any other asset of Borrower or any
Subsidiary except (a) assets sold in the ordinary course of business, (b) assets
which are worn out, obsolete or no longer necessary, (c) sales of accounts
receivable to Receivable Subsidiaries so long as such Receivable Subsidiary is a
Guarantor, (d) a transfer by the Borrower or a Subsidiary of assets to a
Guarantor or the Borrower or (e) other assets in any Fiscal Year having an
aggregate book value not exceeding 5% of Consolidated Total Assets; provided,
however, that the Borrower and its Subsidiaries may sell for cash other assets
in excess of 5% of Consolidated Total Assets so long as the net proceeds of such
sale are used to permanently reduce first the 5 Year Facility (to the extent
permitted or required thereunder) and thereafter the Total 364 Day Commitment
pursuant to Section 2.07.
8.06 Investments; Acquisitions. Purchase, own, invest in or otherwise
Acquire, directly or indirectly, any stock or other securities or all or
substantially all of the assets, or make or permit to exist any interest
whatsoever in any other Person or permit to exist any loans or advances to any
Person; provided, Borrower and its Subsidiaries may maintain investments or
invest in or Acquire
(i) Eligible Securities;
(ii) investments existing as of the date hereof and as set forth in Schedule
6.01(d) attached hereto;
(iii) accounts receivable arising and trade credit granted in the ordinary
course of business and any securities received in satisfaction or partial
satisfaction thereof in connection with accounts of financially troubled Persons
to the extent reasonably necessary in order to prevent or limit loss;
(iv) Acquisitions so long as (A) the Acquisition is not opposed by the Person
who is being acquired or whose assets are being acquired, (B) the Cost of
Acquisition of any Person does not exceed ten percent (10%) of Consolidated
Shareholders' Equity and (C) if the Person or assets so acquired on a pro forma
historical basis as at the date of the Acquisition or for the Four-Quarter
Period most recently ended preceding the date of Acquisition owned assets or
generated income, which when consolidated with the assets and pre-tax income of
the Borrower and its Subsidiaries, constitute ten percent (10%) or more of the
Consolidated Total Assets or Consolidated Pre-Tax Income, then the Borrower
shall furnish to the Agent prior to completing such Acquisition a certificate in
the form of Exhibit H, which certificate demonstrates that on a pro forma
historical basis no Default or Event of Default exists under this Agreement;
(v) loans and advances to and investments in Subsidiaries so long as loans and
advances to and investments in all Subsidiaries which are not Guarantors do not
exceed at any time an aggregate of $50,000,000; provided, however, that nothing
contained in this Section shall limit the right of Borrower and its Subsidiaries
to make payments in the ordinary course of business on behalf of customers of
Borrower or its Subsidiaries rendering temporary staffing services (the "private
label business") where payments by recipients of such staffing services from
such customers of Borrower or its Subsidiaries are remitted directly to the
Borrower or its Subsidiaries;
(vi) loans and advances to and investments in Persons who are not
Subsidiaries so long as (i) such Person derives the majority of its revenues
from providing staffing, consulting and outsourcing services, and (ii) such
loans and advances to and investments in such Persons do not exceed at any time
an aggregate of $25,000,000;
(vii) Investments as of the Closing Date in the form of ownership of the capital
stock in a Subsidiary;
(viii) guarantees of any Indebtedness (that is permitted by Section 8.04 hereof)
of a Guarantor; and
(ix) loans and advances to employees of the Borrower and its Subsidiaries
(including bridge and relocation loans) made in the ordinary course of business
in an amount not to exceed $2,000,000 in the aggregate outstanding at one time.
8.07 Liens. Incur, create or permit to exist any pledge, Lien, charge or
other encumbrance of any nature whatsoever with respect to any property or
assets of the Borrower or any Subsidiary to secure Indebtedness owed to any
other Person except:
(i) Permitted Liens; and
(ii) purchase money Liens to secure Indebtedness and Liens securing Capital
Leases to the extent permitted under Section 8.04(e) which Indebtedness is
incurred to purchase fixed assets, provided such Indebtedness represents not
less than 75% of the purchase price of such assets as of the date of purchase
thereof and no property other than the assets so purchased secures such
Indebtedness.
8.08 Restricted Payments. Make Restricted Payments during any Fiscal Year on a
non-cumulative basis (so that amounts not paid in one Fiscal Year may not be
carried forward to a subsequent Fiscal Year) in excess of five percent (5%) of
Consolidated Shareholders' Equity; provided, however, that the Borrower shall
not make any Restricted Payment if either prior to or after giving effect to
such Restricted Payment a Default or Event of Default shall exist, provided that
in no event shall capital stock of the Borrower owned by Borrower and its
Subsidiaries represent at any time 25% or more of Consolidated Shareholders'
Equity.
8.09 Merger or Consolidation. (a) Consolidate with or merge into any other
Person, or (b) permit any other Person to merge into it; or (c) other than as
permitted in Section 8.05, liquidate, wind-up or dissolve or sell, transfer or
lease or otherwise dispose of all or a substantial part of its assets (other
than sales in the ordinary course of business); provided, however, (i) any
Subsidiary of the Borrower may merge or transfer all or substantially all of its
assets into or consolidate with any wholly-owned Subsidiary of the Borrower,
(ii) any Person may merge with the Borrower or a wholly-owned Subsidiary if the
Borrower or such Subsidiary shall be the survivor thereof and such merger shall
not cause, create or result in the occurrence on any Default or Event of Default
hereunder.
8.10 Change in Control. Cause, suffer or permit any Person or group of Persons
acting in concert other than the owners, if any, of more than 35% of outstanding
securities of the Borrower as of the Closing Date having voting rights in the
election of directors, to own or control, directly or indirectly, more than 35%
of the outstanding securities of (on a fully diluted basis and taking into
account any outstanding securities or contract rights exercisable, exchangeable
or convertible into equity interests) the Borrower having voting rights in the
election of directors.
8.11 Transactions with Affiliates. Enter into any transaction after the date
hereof, including, without limitation, the purchase, sale, leasing or exchange
of property, real or personal, or the rendering of any service, with any
Affiliate of the Borrower (other than a Subsidiary), except (a) where such
transaction is upon fair and reasonable terms that are no less favorable to the
Borrower or any Subsidiary than would be obtained in an arm's length transaction
with a nonaffiliated Person, (b) in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's (or any Subsidiary's) business
consistent with past practice of the Borrower and its Subsidiaries, (c)
investments permitted by clause (ix) of Section 8.06, and (d) the payment of
reasonable compensation (including the granting of stock options for the
purchase of Borrower's capital stock and payment of cash) to the directors of
the Borrower.
8.12 ERISA. With respect to all employee pension benefit plans maintained by
the Borrower or any Subsidiary:
(i) terminate any of such employee pension benefit plans so as to incur any
material liability to the Pension Benefit Guaranty Corporation established
pursuant to ERISA;
(ii) allow or suffer to exist any prohibited transaction involving any of
such employee pension benefit plans or any trust created thereunder which would
subject the Borrower or a Subsidiary to any material tax or penalty or other
liability on prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA;
(iii) fail to pay to any such employee pension benefit plan any contribution
which it is obligated to pay under the terms of such plan which could reasonably
be expected to have a Material Adverse Effect;
(iv) allow or suffer to exist any accumulated funding deficiency, whether or
not waived, with respect to any such employee pension benefit plan which could
reasonably be expected to have a Material Adverse Effect;
(v) allow or suffer to exist any occurrence of a reportable event or any
other event or condition, which presents a material risk of termination by the
Pension Benefit Guaranty Corporation of any such employee pension benefit plan
that is a Single Employer Plan, which termination could result in any liability
to the Pension Benefit Guaranty Corporation which could reasonably be expected
to have a Material Adverse Effect; or
(vi) incur any withdrawal liability with respect to any Multi-employer Plan
which could reasonably be expected to have a Material Adverse Effect.
8.13 Fiscal Year. Change its Fiscal Year.
8.14 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into the Borrower permitted
pursuant to Section 8.09.
8.15 Rate Hedging Obligations. Except to the extent permitted under the
Existing Credit Agreement, incur any Rate Hedging Obligations or enter into
any agreements, arrangements, devices or instruments relating to Rate Hedging
Obligations.
8.16 Negative Pledge Clauses. Enter into or cause, suffer or permit to exist
any agreement with any Person other than the Agent and the Lenders pursuant to
this Agreement or any other Loan Document which prohibits or limits the ability
of any of the Borrower or any Subsidiary to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues whether now owned or
hereafter acquired.
8.17 Existing Credit Agreement. Permit at any time the Existing Credit
Agreement to contain covenants or conditions more restrictive than those set
forth in this Agreement.
ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default. If any one or more of the following events (herein
called "Events of Default") shall occur for any reason whatsoever (and whether
such occurrence shall be voluntary or involuntary or come about or be effected
by operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan or other Obligation, when and as the same shall be due and
payable whether pursuant to any provision of Article II hereof, at maturity, by
acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of any amount
of interest on any Loan or of any fees or other amounts payable to any of the
Lenders under the Loan Documents on the date on which the same shall be due and
payable and such default shall continue for a period of three (3) Business Days;
or
(c) if default shall be made in the performance or observance of any
covenant set forth in Sections 7.06, 7.08, 7.10 or Article VIII hereof (except
that in the case of Sections 8.04, 8.06(i), 8.07 and 8.11 such default shall
continue for a period of ten (10) days after the occurrence thereof);
(d) if a default shall be made in the performance or observance of, or shall
occur under, any covenant, agreement or provision contained in this Agreement or
the Notes (other than as described in clauses (a), (b) or (c) above) and such
default shall continue for 30 or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the Agent or the
Borrower becomes aware of such default, or if a default shall be made in the
performance or observance of, or shall occur under, any covenant, agreement or
provision contained in any of the other Loan Documents (beyond any applicable
grace period, if any, contained therein) or in any instrument or document
delivered to the Agent or the Lenders in connection with or pursuant to this
Agreement or any of the Obligations evidencing or creating any obligation or
guaranty in favor of the Agent or any of the Lenders, or if any Loan Document
ceases to be in full force and effect (other than by reason of any action by the
Agent), or if without the written consent of the Required Lenders, this
Agreement or any other Loan Document shall be disaffirmed or shall terminate, be
terminable or be terminated or become void or unenforceable for any reason
whatsoever (other than in accordance with its terms in the absence of default or
by reason of any action by the Agent or the Lenders); or
(e) if a default shall occur, which is not waived, (i) in the payment of any
principal, interest, premium or other amounts with respect to any Indebtedness
(other than the Loans) of the Borrower or of any Subsidiary in an amount not
less than $5,000,000 in the aggregate outstanding, or (ii) in the performance,
observance or fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness may have been
issued, created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, and such default shall continue for more than the period of grace,
if any, therein specified, or if such default shall permit the holder of any
such Indebtedness to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact contained
herein or any other Loan Document or in any writing, certificate, report or
statement at any time furnished to the Agent or any of the Lenders by or on
behalf of the Borrower or any Guarantor pursuant to or in connection with this
Agreement or the other Loan Documents, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary shall be unable to pay its debts generally
as they become due; file a petition to take advantage of any insolvency statute;
make an assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of itself or
of the whole or any substantial part of its property; file a petition or answer
seeking reorganization or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order, judgment or
decree appointing a custodian, receiver, trustee, liquidator or conservator of
the Borrower or any Subsidiary or of the whole or any substantial part of its
properties and such order, judgment or decree continues unstayed and in effect
for a period of sixty (60) days, or approve a petition filed against the
Borrower or any Subsidiary seeking reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or statute
of the United States of America or any state, which petition is not dismissed
within sixty (60) days; or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction shall assume custody
or control of the Borrower or any Subsidiary or of the whole or any substantial
part of its properties, which control is not relinquished within sixty (60)
days; or if there is commenced against the Borrower or any Subsidiary any
proceeding or petition seeking reorganization, arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state which proceeding or petition remains
undismissed for a period of sixty (60) days; or if the Borrower or any
Subsidiary takes any action to indicate its consent to or approval of any such
proceeding or petition; or
(i) if (i) any judgment where the amount not covered by insurance (or the amount
as to which the insurer denies liability) is in excess of $5,000,000 is rendered
against the Borrower or any Subsidiary, or (ii) there is any attachment,
injunction or execution against any of the Borrower's or any Subsidiary's
properties for any amount in excess of $5,000,000; and such judgment,
attachment, injunction or execution has not been either paid, stayed,
discharged, bonded or dismissed for a period of thirty (30) days; or
(j) if the Borrower or any Subsidiary shall, other than in the ordinary
course of business (as determined by past practices), suspend all or any part
of its operations material to the conduct of the business of the Borrower or
such Subsidiary, taken as a whole;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be taken: (i) the Agent, with
the consent of the Required Lenders may, and at the direction of the Required
Lenders shall, declare any obligation of the Lenders terminated, whereupon the
obligation of the Lenders to make further Loans hereunder shall terminate
immediately, and (ii) the Agent shall, at the direction of the Required Lenders
declare by notice to the Borrower any or all of the Obligations to be
immediately due and payable, and the same, including all interest accrued
thereon and all other obligations of the Borrower to the Lenders, shall
forthwith become immediately due and payable without presentment, demand,
protest, notice or other formality of any kind, all of which are hereby
expressly waived, anything contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided, however, that
notwithstanding the above, if there shall occur an Event of Default under clause
(g) or (h) above, then the obligation of the Lenders to make Loans hereunder
shall automatically terminate and any and all of the Obligations shall be
immediately due and payable without the necessity of any action by the Agent or
the Required Lenders or notice to the Agent or the Lenders;
(B) the Agent and each of the Lenders shall have all of the rights and
remedies available under the Loan Documents or under any applicable law.
9.02 Agent to Act. In case any one or more Events of Default shall occur and
not have been waived, the Agent may, and at the direction of the Required
Lenders shall, proceed to protect and enforce its rights or remedies either by
suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or
remedy.
9.03 Cumulative Rights. No right or remedy herein conferred upon the Agent
is intended to be exclusive of any other rights or remedies contained herein or
in any other Loan Document, and every such right or remedy shall be cumulative
and shall be in addition to every other such right or remedy contained herein
and therein or now or hereafter existing at law or in equity or by statute, or
otherwise.
9.04 No Waiver. No course of dealing between the Borrower and any Lender or
the Agent or any failure or delay on the part of any Lender or the Agent in
exercising any rights or remedies under any Loan Document or otherwise available
to it shall operate as a waiver of any rights or remedies and no single or
partial exercise of any rights or remedies shall operate as a waiver or preclude
the exercise of any other rights or remedies hereunder or of the same right or
remedy on a future occasion.
9.05 Allocation of Proceeds. If an Event of Default has occurred and not
been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders pursuant to Sections 2.12, 3.03, 3.04 and
11.05;
(b) amounts due to the Agent pursuant to Section 10.08;
(c) payments of interest on Loans to be applied for the ratable benefit of
the Lenders;
(d) payments of principal of Loans to be applied for the ratable benefit of
the Lenders;
(e) amounts due to the Lenders pursuant to Section 7.14;
(f) payments of all other amounts due under any of the Loan Documents, if
any, to be applied for the ratable benefit of the Lenders; and
(g) any surplus remaining after application as provided for herein, to the
Borrower or otherwise as may be required by applicable law.
ARTICLE X
The Agent
10.01 Appointment, Powers and Immunities. Each Lender hereby irrevocably
appoints and authorizes the Agent to act as its agent under this Agreement and
the other Loan Documents with such powers and discretion as are specifically
delegated to the Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in Section 10.05 and the
first sentence of Section 10.06 hereof shall include its affiliates and the
Agent's and its affiliates' officers, directors, employees, and agents): (a)
shall not have any duties or responsibilities except those expressly set forth
in this Agreement and shall not be a trustee or fiduciary for any Lender; (b)
shall not be responsible to the Lenders for any recital, statement,
representation, or warranty (whether written or oral) made in or in connection
with any Loan Document or any certificate or other document referred to or
provided for in, or received by any of them under, any Loan Document, or for the
value, validity, effectiveness, genuineness, enforceability, or sufficiency of
any Loan Document, or any other document referred to or provided for therein or
for any failure by any Loan Party or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Loan Party or the satisfaction of any condition
or to inspect the property (including the books and records) of any Loan Party
or any of its Subsidiaries or affiliates; (d) shall not be required to initiate
or conduct any litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted to be taken by it
under or in connection with any Loan Document, except for its own gross
negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
10.02 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telecopy) believed by it to be
genuine and correct and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Loan Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 11.01 hereof. As to any matters not expressly provided for by this
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to any
Loan Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
10.03 Defaults. The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or Event of
Default, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall (subject to Section 10.02 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
10.04 Rights as Lender. With respect to its 364 Day Commitment and the Loans
made by it, Bank of America (and any successor acting as Agent) in its capacity
as a Lender hereunder shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not acting as the
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Agent in its individual capacity. Bank of America (and
any successor acting as Agent) and its affiliates may (without having to account
therefor to any Lender) accept deposits from, lend money to, make investments
in, provide services to, and generally engage in any kind of lending, trust, or
other business with any Loan Party or any of its Subsidiaries or affiliates as
if it were not acting as Agent, and Bank of America (and any successor acting as
Agent) and its affiliates may accept fees and other consideration from any Loan
Party or any of its Subsidiaries or affiliates for services in connection with
this Agreement or otherwise without having to account for the same to the
Lenders.
10.05 Indemnification. The Lenders agree to indemnify the Agent (to the extent
not reimbursed under Section 11.05 hereof, but without limiting the obligations
of the Borrower under such Section) ratably in accordance with their respective
Commitments, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including attorneys'
fees), or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Agent (including by any Lender) in any
way relating to or arising out of any Loan Document or the transactions
contemplated thereby or any action taken or omitted by the Agent under any Loan
Document; provided that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Person to be indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse the Agent promptly upon demand for its ratable share of any
costs of expenses payable by the Borrower under Section 11.05, to the extent
that the Agent is not promptly reimbursed for such costs and expenses by the
Borrower. The agreements contained in this Section shall survive payment in full
of the Loans and all other amounts payable under this Agreement.
10.06 Non-Reliance on Agent and Other Lenders. Each Lender agrees that it has,
independently and without reliance on the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis of the Loan Parties and their Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any Loan
Party or any of its Subsidiaries or affiliates that may come into the possession
of the Agent or any of its affiliates.
10.07 Resignation of Agent. The Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the Required
Lenders may appoint, with the consent of the Borrower, so long as there shall
not have occurred and be continuing a Default or Event of Default, which consent
shall not be unreasonably withheld, a successor Agent for the Lenders. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article X shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
10.08 Fees. The Borrower agrees to pay to the Agent, for its individual
account, an annual Agent's fee as from time to time agreed to by the Borrower
and Agent in writing.
10.09 Other Agents. The Lender identified on the cover of this Agreement as
the "Syndication Agent" shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement or any other Loan Document other
than those applicable to all Lenders as such. Each Lender acknowledges that it
has not relied, and will not rely, on the Lender so identified in deciding to
enter into this Agreement or any other Loan Document or in taking or refraining
from taking any action
hereunder or thereunder or pursuant hereto or thereto.
ARTICLE XI
Miscellaneous
11.01 Assignments and Participations. (a) Each Lender may assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Notes, and its 364 Day Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an assignment
of all of a Lender's rights and obligations under this Agreement, any such
partial assignment shall be in an amount at least equal to $10,000,000 or an
integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant, and not
varying, percentage of all of its rights and obligations under this Agreement
and the Notes; and
(iv) the parties to such assignment shall execute and deliver to the Agent
for its acceptance an Assignment and Acceptance in the form of Exhibit B hereto,
together with any Notes subject to such assignment and a processing fee of
$3,500 to be paid by the new Lender.
Upon execution, delivery, and acceptance of such Assignment and Acceptance,
the assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make
appropriate arrangements so that, if required, new Notes are issued to the
assignor and the assignee. If the assignee is not incorporated under the laws
of the United States of America or a state thereof, it shall deliver to the
Borrower and the Agent certification as to exemption from withholding of Taxes
in accordance with Section 3.06.
(b) The Agent shall maintain at its address referred to in Section 11.02 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 Lenders and the
364 Day Commitment of, and principal amount of the 364 Day Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the parties
thereto, together with any Notes subject to such assignment and payment of the
processing fee, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit B hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in all or a
portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its 364 Day Commitment and its 364 Day
Loans); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
and (iii) the Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Note and to approve
any amendment, modification, or waiver of any provision of this Agreement (other
than amendments, modifications, or waivers decreasing the amount of principal of
or the rate at which interest is payable on such Loans or Note, or any fee
payable hereunder, extending any scheduled principal payment date or date fixed
for the payment of interest on such Loans or Note.
(e) Notwithstanding any other provision set forth in this Agreement, any
Lender may, at no cost to the Borrower, at any time assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning Lender
from its obligations hereunder.
(f) Any Lender may furnish any information concerning the Borrower or any of
its Subsidiaries in the possession of such Lender from time to time to assignees
and participants (including prospective assignees and participants), subject,
however, to the provisions of Section 11.17 hereof
(g) The Borrower may not assign any rights, powers, duties or obligations
under this Agreement or the other Loan Documents without the prior written
consent of all the Lenders.
11.02 Notices. Any notice shall be conclusively deemed to have been received by
any party hereto and be effective on the day on which delivered to such party
(against receipt therefor) at the address set forth below or such other address
as such party shall specify to the other parties in writing (or, in the case of
telephonic notice or notice by telecopy, telegram or telex (where the receipt of
such message is verified by return) expressly provided for hereunder, when
received during normal business hours at such telephone, telecopy or telex
number as may from time to time be specified in written or oral notice to the
other parties hereto or otherwise received), or by overnight courier or express
mail on the day following the date sent, addressed to such party at said
address:
(a) if to the Borrower:
Modis Professional Services, Inc.
One Independent Drive
Jacksonville, Florida 32202
Attention: Chief Financial Officer
Telephone: (904) 360-2550
Telefacsimile: (904) 360-2505
(b) if to the Lender:
Bank of America, N.A.
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: Global Finance
Telephone: (704) 388-3234
Telefacsimile: (704) 388-0960
with a copy to:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 388-2374
Telefacsimile: (704) 386-9923
11.03 Right of Setoff; Adjustments. (a) Upon the occurrence and during the
continuance of any Event of Default, each Lender (and each of its affiliates) is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender (or any of its affiliates) to or for the credit or
the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement and the Notes held by
such Lender, irrespective of whether such Lender shall have made any demand
under this Agreement or such Notes and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any payment
of all or part of the Loans owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
or otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans
owing to it, or interest thereon, such benefitted Lender shall purchase for cash
from the other Lenders a participating interest in such portion of each such
other Lender's Loans owing to it, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that any Lender so purchasing a participation from
a Lender pursuant to this Section 11.03 may, to the fullest extent permitted by
law, exercise all of its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Person were the direct
creditor of the Borrower in the amount of such participation.
11.04 Survival. All covenants, agreements, representations and warranties
made herein shall survive the making by the Lenders of the Loans and the
execution and delivery to the Lenders of this Agreement and the Notes and shall
continue in full force and effect so long as any of Obligations remain
outstanding or any Lender has any commitment hereunder or the Borrower has
continuing obligations hereunder unless otherwise provided herein. Whenever in
this Agreement, any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of the Borrower which are contained in this Agreement, the Notes
and the other Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Lenders or any of them.
11.05 Expenses. The Borrower agrees (a) to pay or reimburse the Agent for all
its reasonable and customary out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of, this Agreement or
any of the other Loan Documents (including travel expenses relating to closing),
and the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable and customary fees and
disbursements of counsel to the Agent as well as all such expenses and costs
arising in connection with any amendment, supplement or modification to this
Agreement or any other Loan Documents, (b) to pay or reimburse the Agent and the
Lenders for all their reasonable costs and expenses incurred in connection with
the enforcement (only from and after the occurrence and continuation of a
Default or Event of Default) or preservation of any rights under this Agreement
and the other Loan Documents, including without limitation, the reasonable fees
and disbursements of its counsel, (c) to pay, indemnify and hold the Agent and
the Lenders harmless from any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any failure to pay or delay in
paying, documentary, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of this Agreement or any other Loan Documents, or consummation of any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, this Agreement or any other Loan Documents, and (d) to pay,
indemnify, and hold the Agent and the Lenders harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any indemnity
agreement or undertaking made by the Agent or any Lender to facilitate the
processing of checks, payroll or otherwise, of Borrower, or in any respect
relating to the transactions contemplated hereby or thereby, (all the foregoing,
collectively, the "indemnified liabilities"); provided, however, that the
Borrower shall have no obligation hereunder with respect to indemnified
liabilities arising from (i) the willful misconduct or gross negligence of or
the willful breach of the Loan Documents by the party seeking indemnification,
(ii) legal proceedings commenced against the Agent or any Lender by any security
holder or creditor thereof arising out of and based upon rights afforded any
such security holder or creditor solely in its capacity as such, (iii) any taxes
imposed upon the Agent or any Lender other than the documentary, stamp, excise
and similar taxes described in clause (c) above or any tax which would be
payable to Lender by Borrower pursuant to Article III hereof, it being
understood that the Lenders shall have the affirmative obligation, so long as no
Default or Event of Default exists hereunder, to take all reasonable steps to
ensure such documentary, stamp or similar taxes are not required to be paid,
(iv) taxes imposed and costs and expenses incurred as a result of a transfer or
assignment of any Note, participation or assignment of a portion of a Lender's
rights or (v) any transfer taxes, costs, fees or expenses incurred in connection
with any transfer of the Notes. The agreements in this subsection shall survive
repayment of the Notes and all other Obligations hereunder and termination of
this Agreement.
11.06 Amendments and Waivers. Any provision of this Agreement or any other Loan
Document may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Lenders (and, if
Article X or the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such amendment or waiver shall, unless signed by all
the Lenders (i) increase the 364 Day Commitments of the Lenders, (ii) reduce the
principal of or rate of interest on any Loan or any fees or other amounts
payable hereunder, (iii) postpone any date fixed for the payment of any
scheduled installment of principal of or interest on any Loan or any fees or
other amounts payable hereunder or for termination of any 364 Day Commitment,
(iv) change the percentage of the 364 Day Commitments or of the unpaid principal
amount of the Notes, or the number of Lenders, which shall be required for the
Lenders or any of them to take any action under this Section or any other
provision of this Agreement or (v) release all or substantially all of the
Guarantors.
11.07 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart. Signatures
on communications and other documents may be transmitted by facsimile only with
the consent of the Agent in its sole and absolute discretion in each instance.
The effectiveness of any such signatures accepted by the Agent shall, subject to
applicable law, have the same force and effect as manual signatures and shall be
binding on all parties. The Agent may also require that any such signature be
confirmed by a manually-signed hardcopy thereof. Each party hereto hereby adopts
as an original executed signature page each signature page hereafter furnished
by such party to the Agent (or an agent of the Agent) bearing (with the consent
of the Agent) a facsimile signature by or on behalf of such party. Nothing
contained in this Section shall limit the provisions of Section 10.2.
11.08 Waivers by Borrower. In any litigation in any court with respect to, in
connection with, or arising out of this Agreement, the Loans, any of the Notes,
any of the other Loan Documents, the Obligations, or any instrument or document
delivered pursuant to this Agreement or the other Loan Documents, or the
validity, protection, interpretation, collection or enforcement thereof, or any
other claim or dispute howsoever arising between the Borrower and the Agent and
any Lender, the Borrower and the Agent and the Lenders hereby waive, to the
extent permitted by applicable law, trial by jury in connection with any such
litigation.
11.09 Termination. The termination of this Agreement shall not affect any rights
of the Borrower, the Agent or the Lenders or any obligation of the Borrower, the
Agent or the Lenders, arising prior to the effective date of such termination,
and the provisions hereof shall continue to be fully operative until all
transactions entered into or rights created or obligations incurred prior to
such termination have been fully disposed of, concluded or liquidated and the
Obligations arising prior to or after such termination have been irrevocably
paid in full. The rights granted to the Agent for the benefit of the Lenders
hereunder and under the other Loan Documents shall continue in full force and
effect, notwithstanding the termination of this Agreement, until all of the
Obligations have been paid in full after the termination hereof (other than
Obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable) or the Borrower has furnished the Agent and
the Lenders with an indemnification satisfactory to the Lender with respect
thereto. Notwithstanding the foregoing, if after receipt of any payment of all
or any part of the Obligations, any Lender is for any reason compelled to
surrender such payment to any Person because such payment is determined to be
void or voidable as a preference, impermissible setoff, a diversion of trust
funds or for any other reason, this Agreement shall continue in full force and
the Borrower shall be liable to, and shall indemnify and hold such Lender
harmless for, the amount of such payment surrendered until the Lenders shall
have been finally and irrevocably paid in full. The provisions of the foregoing
sentence shall be and remain effective notwithstanding any contrary action which
may have been taken by the Lender in reliance upon such payment, and any such
contrary action so taken shall be without prejudice to the Lender's rights under
this Agreement and shall be deemed to have been conditioned upon such payment
having become final and irrevocable.
11.10 Replacement Lender. The Borrower may, in its sole discretion, on 10
Business Days' prior written notice to the Agent and the affected Lender, cause
such Lender to (and such Lender shall) assign, pursuant to Section 11.01, all of
its rights and obligations under this Agreement to an Eligible Assignee
designated by the Borrower which is willing to become a Lender for a purchase
price equal to the outstanding principal amount of the Loans payable to such
Lender plus any accrued but unpaid interest on such Loans, any accrued but
unpaid fees with respect to such Lender's 364 Day Commitment and any other
amount payable to such Lender under this Agreement; provided, that any expenses
or other amounts which would be owing to such Lender pursuant to any
indemnification provision hereof (including, if applicable Section 3.04) shall
be payable by the Borrower as if the Borrower had prepaid the Loans of such
Lender rather than such Lender having assigned its interest hereunder. The
Borrower or the Assignee shall pay the applicable processing fee under Section
11.01(a).
11.11 Governing Law. All documents executed pursuant to the transactions
contemplated herein, including, without limitation, this Agreement and each of
the Loan Documents shall be deemed to be contracts made under, and for all
purposes shall be construed in accordance with, the internal laws and judicial
decisions of the State of Florida. The Borrower and the Agent hereby submit to
the jurisdiction and venue of the state and federal courts of Florida for the
purposes of resolving disputes hereunder or for the purposes of collection.
11.12 Headings and References. The headings of the Articles and Sections of
this Agreement are inserted for convenience of reference only and are not
intended to be a part of, or to affect the meaning or interpretation of this
Agreement. Words such as "hereof", "hereunder", "herein" and words of similar
import shall refer to this Agreement in its entirety and not to any particular
Section or provisions hereof, unless so expressly specified. As used herein,
the singular shall include the
plural, and the masculine shall include the feminine or a neutral gender, and
vice versa, whenever the context requires.
11.13 Severability. If any provision of this Agreement or the other Loan
Documents shall be determined to be illegal or invalid as to one or more of the
parties hereto, then such provision shall remain in effect with respect to all
parties, if any, as to whom such provision is neither illegal nor invalid, and
in any event all other provisions hereof shall remain effective and binding on
the parties hereto.
11.14 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.15 Agreement Controls. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any term of this Agreement,
the terms and provisions of this Agreement shall control.
11.16 Usury Savings Clause. Notwithstanding any other provision herein, the
aggregate interest rate charged under any of the Notes, including all charges or
fees in connection therewith deemed in the nature of interest under applicable
law shall not exceed the Highest Lawful Rate (as such term is defined below). If
the rate of interest (determined without regard to the preceding sentence) under
this Agreement at any time exceeds the Highest Lawful Rate (as defined below),
the outstanding amount of the Loans made hereunder shall bear interest at the
Highest Lawful Rate until the total amount of interest due hereunder equals the
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder (taking into account the increase provided for above) is less than
the total amount of interest which would have been due hereunder if the stated
rates of interest set forth in this Agreement had at all times been in effect,
then to the extent permitted by law, the Borrower shall pay to the Agent an
amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention of
the Lenders and the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be canceled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made hereunder
or be refunded to the Borrower. As used in this paragraph, the term "Highest
Lawful Rate" means the maximum lawful interest rate, if any, that at any time or
from time to time may be contracted for, charged, or received under the laws
applicable to such Lender which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than applicable laws now
allow.
11.17 Confidentiality. The Agent and each Lender (each, a "Lending Party")
agrees to keep confidential any information furnished or made available to it by
the Borrower pursuant to this Agreement that is marked confidential; provided
that nothing herein shall prevent any Lending Party from disclosing such
information (a) to any other Lending Party or any affiliate of any Lending
Party, or any officer, director, employee, agent, or advisor of any Lending
Party or affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending Party other than as a result of a disclosure by
any Lending Party prohibited by this Agreement or through disclosure by any
other Person whom the Agent or such Lender has reason to believe disclosed such
information in violation of or contrary to the confidentiality requirements or
policies of the Borrower or a Subsidiary, (g) in connection with any litigation
to which such Lending Party or any of its affiliates may be a party, (h) to the
extent necessary in connection with the exercise of any remedy under this
Agreement or any other Loan
Document, and (i) subject to provisions substantially similar to those contained
in this Section, to any actual or proposed participant or assignee.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made,
executed and delivered by their duly authorized officers as of the day and year
first above written.
MODIS PROFESSIONAL SERVICES, INC.
WITNESS:
/s/ Steve E. Marshall By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Michelle R. Sutch Title: Senior Vice President &
Treasurer
BANK OF AMERICA, N.A.,
as Agent
By: /s/ John E. Williams
Name: John E. Williams
Title: Managing Director
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ John E. Williams
Name: John E. Williams
Title: Managing Director
FLEET NATIONAL BANK
By: /s/ Deborah J. Lawrence
Name: Deborah J. Lawrence
Title: Senior Vice President
Lending Office:
One Federal Street
MAOF DO4J
Boston, Massachusetts 02110
Wire Transfer Instructions:
Fleet National Bank
Boston, Massachusetts
ABA No.:
Account No.:
Account Name:
Reference: Modis Professional Services, Inc.
BANK ONE, NA (Chicago Main Office)
as Documentation Agent
By: /s/ Dianna L. McCarthy
Name: Dianna L. McCarthy
Title: Vice President
Lending Office:
1 Bank One Plaza
Suite 0324, 10th Floor
Chicago, Illinois 60670
Wire Transfer Instructions:
Bank One, N.A.
Chicago, Illinois
ABA No.:
Account No.:
Account Name:
Attention: Nan Wilson
Reference: Modis Professional Services, Inc.
LLOYDS TSB BANK plc
By: /s/ Windsor R. Davies
Name: Windsor R. Davies
Title: Director, Corporate Banking, USA
By: /s/ David Rodway
Name: David Rodway
Title: Assistant Director
Lending Office:
One Biscayne Tower, Suite 3200
2 South Biscayne Boulevard
Miami, Florida 33131
Wire Transfer Instructions:
Bank of America International
New York, New York
ABA
Account Name:
Account
Reference: Modis Professional Services, Inc.
WACHOVIA BANK, N.A.
By: /s/ William R. McCamey
Name: William R. McCamey
Title: Vice President
Lending Office:
191 Peachtree Street, N.E., 29th Floor
Atlanta, Georgia 30303
Wire Transfer Instructions:
Wachovia Bank, N.A.
ABA #
Account #
Attention:
Reference: Modis Professional Services, Inc.
FIRST UNION NATIONAL BANK
By: /s/ R.Lea Williamson
Name: R. Lea Williamson
Title: Senior Vice President
Lending Office:
225 Water Street, 4th Floor
Mail Code FL0060
Jacksonville, Florida 32202
Wire Transfer Instructions:
First Union National Bank
Jacksonville, Florida
ABA No.:
Account No.:
Account Name:
Attention: Cindy Petry
(904) 489-1823
Reference: Modis Professional Services, Inc.
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By: /s/ Warren Ross
Name: Warren Ross
Title: Assistant Vice President
Lending Office:
333 Clay Street
Suite 3400
Houston, Texas 77002
Wire Transfer Instructions:
BNP New York
New York, New York
ABA No.:
Account No.:
Attention: Donna Rose
Reference: Modis Professional Services, Inc.
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
By: /s/ Minami Miura
Name: Minami Miura
Title: Vice President
Lending Office:
191 Peachtree Street, N.E.
Suite 3600
Atlanta, Georgia 30303-1757
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited,
New York Branch
ABA
For further credit to :
Account
Reference: Modis Professional Services, Inc.
HSBC BANK USA
By: /s/ Jeremy P. Bollington
Name: Jeremy P. Bollington
Title: Vice President
Lending Office:
140 Broadway, 4th Floor
New York, New York 10005-1196
Wire Transfer Instructions:
HSBC Bank USA
ABA #
Account #
Account Name:
Reference: Modis Professional Services, Inc.
Attention: Asset Syndications
KBC BANK N.V.
By: /s/ Robert Snauffer
Name: Robert Snauffer
Title: First Vice President
By: /s/ Raymond F. Murray
Name: Raymond F. Murray
Title: First Vice President
Lending Office:
125 West 55th Street
New York, New York 10019
Wire Transfer Instructions:
KBC Bank N.V.
ABA #
Attention:
Reference: Modis Professional Services, Inc.
BANK HAPOALIM B.M.
By: /s/ Laura Anne Raffa
Name: Laura Anne Raffa
Title: First Vice President & Corporate Bank Officer
By: /s/ Shaun Breidbart
Name: Shaun Breidbart
Title: Vice President
Lending Office:
1177 Avenue of the Americas
New York, New York 10036
Wire Transfer Instructions:
Bank of New York
Account #
ABA #
Attention:
Reference: Modis Professional Services, Inc.
AWARD NOTIFICATION
Name: Derek E. Dewan
Position: President, Chairman, and Chief Executive Officer
This document serves as notification of your base salary and performance goals
effective January 1, 1999.
Base Salary:
* $500,000
Annual Incentive Award Opportunities:
* Threshold - 50%
* Target - 100%
* Maximum - 125%
Annual Incentive Financial Performance Criteria, Objectives and Weightings:
(actual performance achievement between threshold, target, and maximum levels
will be interpolated)
* Corporate Top Line Growth (weighted 50% of award):
* Threshold - 15%
* Target - 21%
* Maximum - 27%
* Corporate EBIT Growth (weighted 50% of award):
* Threshold - 12%
* Target - 17%
* Maximum - 22%
AWARD NOTIFICATION
Name: Michael D. Abney
Position: SVP, CFO, and Director
This document serves as notification of your base salary and performance goals
effective January 1, 1999.
Base Salary:
* $250,000
Annual Incentive Award Opportunities:
* Threshold - 40%
* Target - 100%
* Maximum - 150%
Annual Incentive Financial Performance Criteria, Objectives and Weightings:
(actual performance achievement between threshold, target, and maximum levels
will be interpolated)
* Corporate Top Line Growth (weighted 50% of award):
* Threshold - 15%
* Target - 21%
* Maximum - 27%
* Corporate EBIT Growth (weighted 50% of award):
* Threshold - 12%
* Target - 17%
* Maximum - 22%
AWARD NOTIFICATION
Name: Marc M. Mayo
Position: SVP, General Counsel
This document serves as notification of your base salary and performance goals
effective January 1, 1999.
Base Salary:
* $250,000
Annual Incentive Award Opportunities:
* Threshold - 25%
* Target - 80%
* Maximum - 100%
Annual Incentive Financial Performance Criteria, Objectives and Weightings:
(actual performance achievement between threshold, target, and maximum levels
will be interpolated)
* Corporate EBIT Growth (weighted 50% of award):
* Threshold - 12%
* Target - 17%
* Maximum - 22%
* Key Performance Objectives (weighted 50% of award):
* Customer satisfaction
* Legal and HR department management
* Litigation management
* Corporate secretary duties
AWARD NOTIFICATION
Name: Timothy D. Payne
Position: President and Chief Operating Officer - modis, Inc.
This document serves as notification of your base salary and performance goals
effective January 1, 1999.
Base Salary:
* $400,000
Annual Incentive Award Opportunities:
* Threshold - 30%
* Target - 80%
* Maximum - 160%
Annual Incentive Financial Performance Criteria, Objectives and Weightings:
(actual performance achievement between threshold, target, and maximum levels
will be interpolated)
* Division Top Line Growth (weighted 50% of award):
* Threshold - 16%
* Target - 23%
* Maximum - 30%
* Division EBITDA Growth (weighted 25% of award):
* Threshold - 12%
* Target - 17%
* Maximum - 22%
* Key Performance Objectives (weighted 25% of award):
* Gross Margin
* Operating Margin
* Day's Sales Outstanding
AWARD NOTIFICATION
Name: George Bajalia
Position: President and Chief Operating Officer - Professional Services
Division
This document serves as notification of your base salary and performance goals
effective January 1, 1999.
Base Salary:
* $200,000
Annual Incentive Award Opportunities:
* Threshold - 30%
* Target - 80%
* Maximum - 160%
Annual Incentive Financial Performance Criteria, Objectives and Weightings:
(actual performance achievement between threshold, target, and maximum levels
will be interpolated)
* Division Top Line Growth (weighted 50% of award):
* Threshold - 12%
* Target - 17%
* Maximum - 22%
* Division EBITDA Growth (weighted 25% of award):
* Threshold - 18%
* Target - 25%
* Maximum - 33%
* Key Performance Objectives (weighted 25% of award):
* Gross Margin
* Operating Margin
* Day's Sales Outstanding
AWARD NOTIFICATION
Name: Robert P. Crouch
Position: VP and Chief Accounting Officer
This document serves as notification of your base salary and performance goals
effective January 1, 1999.
Base Salary:
* $150,000
Annual Incentive Award Opportunities:
* Threshold - 20%
* Target - 60%
* Maximum - 80%
Annual Incentive Financial Performance Criteria, Objectives and Weightings:
(actual performance achievement between threshold, target, and maximum levels
will be interpolated)
* Corporate EBIT Growth (weighted 50% of award):
* Threshold - 12%
* Target - 17%
* Maximum - 22%
* Key Performance Objectives (weighted 50% of award):
* Integration plan
* Customer satisfaction
* Day's sales outstanding
* Accounting department management
Modis Professional Services, Inc.
Senior Executive Annual Incentive Program
SECTION 1
Establishment and Purpose. Modis Professional Services, Inc., a Florida
corporation, hereby establishes an incentive compensation plan, which shall be
known as the Modis Professional Services, Inc. Senior Executive Annual Incentive
Program (the "Program"). The purposes of the Program are to encourage management
to focus on key corporate, business unit, and individual performance objectives,
to align management efforts and rewards with shareholder interests, and to
assist in the attraction and retention of qualified management talent through a
competitive compensation package. All Awards granted under the Program shall be
governed solely by the terms of the Program.
SECTION 2
Definitions. As used in the Program, the following terms shall have the meanings
set forth below:
"Award" shall mean cash granted to a Participant in accordance with the
provisions of the Program.
"Award Notification" shall mean the written terms and conditions applicable to
an Award granted to a Participant.
"Award Opportunity" shall mean the percentages, as set forth in an Award
Notification, that determine the amount of a Participant's Award. Award
Opportunity levels shall be dependent upon an individual's position in the
Company and level of responsibility.
"Base Salary" shall mean, for each Program Year, a Participant's regular annual
base pay excluding bonus or other additional compensation.
"Board" shall mean the Board of Directors of Modis Professional Services, Inc.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" shall mean the Compensation Committee of the Board designated by the
Board to administer the Program and composed of not less than (i) the minimum
number of Persons from time to time required by Section 16(b) of the Exchange
Act, each of whom is a "Non-Employee Director" within the meaning of Section 16;
or (ii) the minimum number of Persons required by 162(m) of the Code and the
regulations thereunder is an "Outside Director" within the meaning of such
regulations.
"Company" shall mean Modis Professional Services, Inc., a Florida corporation,
and its successors and assigns.
"Eligible Participant" shall mean any employee of the Company, as shall be
determined by the Committee, whose participation the Committee determines is in
the best interest of the Company, subject to limitations as may be provided by
the Code, the Exchange Act, or the Committee.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Financial Performance Criterion" shall mean one or more criteria selected by
the Committee to measure performance for a Program Year. Financial Performance
Criteria shall be limited to one or more of the following Company, Affiliate,
operating unit, or division financial performance measures:
(i) Earnings before interest, taxes, depreciation, and/or amortization
(excluding, for such purposes, amounts attributable to earnings of subsidiaries
acquired after the effective date, as defined in Section 8 and during that
calendar year) (ii) Earnings before interest and taxes (excluding, for such
purposes, amounts attributable to earnings of subsidiaries acquired after the
effective date, as defined in Section 8 and during that calendar year) (iii)
Corporate or division top line growth (iv) Operating income or profit (v) Return
on equity, assets, capital, capital employed, or investment (vi) After-tax
operating income (vii) Net income (viii) Earnings or book value per share (ix)
Cash flow(s) (x) Total sales or revenues or sales or revenues per employee (xi)
Production (xii) Stock price or total shareholder return (xiii) Dividends (xiv)
Strategic business objectives, consisting of one or more objectives based on
meeting specified cost targets, business expansion goals, and goals relating to
acquisitions or divestitures
Notwithstanding the forgoing, in the event any newly established branch
operation commences business after the Effective Date, as defined in Section 8,
the financial performance of such branch operation shall not be included in the
calculation of any earnings measure during the first nine months of such
operation, unless such branch operation has positive earnings within the nine
month period and then only for the period in which it is positive.
"Financial Performance Objective" shall mean one or more Financial Performance
Criteria that are applied to an individual in determining the component of the
annual incentive plan that relates to financial performance.
"Key Performance Objective" shall mean an established individual goal that
relates to other than financial performance that is used as a measure of
performance when determining annual incentive award calculations.
"Participant" shall mean an Eligible Participant to whom an Award has been
issued evidencing the Award.
"Performance Adjustment" shall mean the adjustment to reflect the attainment of
the specified Performance Level by each Participant.
"Performance Level" shall mean one or more related levels of Financial
Performance Objectives and Key Performance Objectives as established by the
Committee. Attainment of specified Performance Levels shall result in the
Performance Adjustment. Each Performance Level may be expressed on an absolute
and/or relative basis; or may be based on or otherwise employ comparisons based
on internal targets, the past performance of the Company and/or the past or
current performance of other companies, and in the case of earnings-based
measures, may consist of or utilize comparisons related to capital,
shareholders' equity and/or shares outstanding, or to assets or net assets.
"Person" shall mean any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, government or political
subdivision thereof or other entity.
"Program" shall mean this Modis Professional Services, Inc. Annual Incentive
Program.
"Program Year" shall mean the period of the Company from the first business day
of January to the last business day of December.
"Maximum" shall mean exceptional performance above the Target Bonus level of
performance.
"Target Bonus" shall mean the bonus payable to a Participant if there is a
100-percent achievement of each Financial Performance Objective and Key
Performance Objective.
"Threshold" shall mean the minimum level of performance that must be achieved
prior to the issuance of any bonus payment.
SECTION 3.
Administration
(a) Authority of Committee. The Program shall be administered by the Committee.
Subject to the terms of the Program and applicable law, the Committee shall have
full power and authority to: (i) designate Participants; (ii) determine the
amount of Awards to be granted to a Participant in accordance with Financial
Performance Objectives and Key Performance Objectives established for each
Participant; (iii) determine the applicable Financial Performance Objectives and
Key Performance Objectives for each Participant; (iv) determine the time or
times awards are to be issued (subject to contractual and Program obligations);
(v) interpret and administer the Program and any instrument or agreement
relating to, or Award made under, the Program; (vi) establish, amend, suspend,
or waive such rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Program; and (vii) make any
other determination and take any other action that the Committee deems necessary
or desirable for the administration of the Program.
(b) Committee Discretion Binding. Unless otherwise expressly provided in the
Program or binding employee agreements, all designations, determinations,
interpretations, and other decisions, under or with respect to the Program or
any Award, shall be within the sole discretion of the Committee, may be made at
any time, and shall be final, conclusive, and binding upon all Persons,
including the Company, any Affiliate, any Participant, any holder or beneficiary
of any Award.
(c) A majority of the members of the Committee shall constitute a quorum at a
meeting, and all actions of the Committee at such meeting shall be taken by a
majority of the members present, including by telephone. Any action may be taken
by a written instrument signed by all of the members, and any action so taken
shall be fully effective as if it had been taken at a meeting.
(d) The Committee shall have full power and authority to determine whether, to
what extent, any Award shall be canceled or suspended if (a) the Participant,
without the consent of the Committee, while employed by the Company or after
termination of such employment, becomes associated with, employed by, renders
services to, or owns any interest in, other than any nonsubstantial interest, as
determined by the Committee, any business that is in competition with the
Company or with any business in which the Company has a substantial interest as
determined by the Committee; or (b) is terminated for Cause as determined by the
Board.
(e) No Liability. No member of the Board or Committee shall be liable for any
action taken or determination made in good faith with respect to the Program or
any Award granted hereunder.
SECTION 4.
Eligibility. Eligible Participants, as determined by the Committee, shall be
eligible to receive Awards under the Program. The Committee shall have the power
and complete discretion to determine for each Participant the terms, conditions,
and the amount of each Award.
SECTION 5.
Awards
(a) Each Participant shall receive an annual Award Notification which shall
address the terms and conditions of his/her annual Award Opportunity. The Award
Notification shall address the weighting between the Financial Performance
Objective and the Key Performance Objectives; the Performance Levels for each
objective; and such other terms and conditions applicable to the Award, as
determined by the Committee, not inconsistent with the terms of the Program.
(b) The Committee may vary the Performance Criteria, Financial Performance
Objectives and Key Performance Objectives from Participant to Participant, Award
to Award, and Program Year to Program Year.
(c) All determinations regarding the achievement of any Performance Levels shall
be made by the Committee.
(d) The actual Award shall be calculated by multiplying the Participant's Base
Salary by the Target Bonus and the Performance Adjustments in accordance with
the Award Notification and will be interpolated for achievement of performance
between Threshold, Target, and Maximum levels. All calculations of actual Awards
shall be made by the Office of the Chief Financial Officer or its designee.
(e) Awards shall be paid as soon as practicable after the close of the Program
Year for which they are earned (but in no event later than March 15); provided,
however, that no Awards shall be paid except to the extent that the Committee
has certified in writing that the Performance Levels have been met.
(f) Awards shall be paid in cash.
SECTION 6.
Amendments
(a) The Board may amend, alter, suspend, discontinue, or terminate the Program
or any portion thereof at any time; provided that no such amendment, alteration,
suspension, discontinuation or termination shall be made without stockholder
approval if such approval is necessary to comply with any tax or regulatory
requirement for which or with which the Board deems it necessary or desirable to
comply.
(b) The Committee may waive any conditions or rights under, amend any terms of,
or alter, suspend, discontinue, cancel or terminate, any Award theretofore
granted, prospectively or retroactively; provided that any such waiver,
amendment, alteration, suspension, discontinuance, cancellation or termination
that would adversely affect the rights of any Participant or any holder or
beneficiary of any Award theretofore granted shall not to that extent be
effective without the consent of the affected Participant, holder, or
beneficiary.
SECTION 7.
General Provisions
(a) Transferability. Except as provided below, no Award shall be assigned,
alienated, pledged, attached, sold, or otherwise transferred or encumbered by a
Participant, except by will or the laws of descent and distribution.
(b) No Rights to Awards. No Person shall have any claim to be granted any Award,
and there is no obligation for uniformity of treatment of Employees,
Participants, or holders or beneficiaries of Awards. The terms and conditions of
Awards need not be the same with respect to each recipient.
(c) Withholding. A Participant may be required to pay to the Company, or any
Affiliate and the Company, or the Company and any Affiliate shall have the right
and is hereby authorized to withhold from any Award, from any payment due or
transfer made under any Award or under the Program, or from any compensation or
other amount owing to a Participant the amount of any applicable withholding or
other taxes in respect of an Award, or any payment or transfer under an Award or
under the Program, and to take such other action as may be necessary in the
opinion of the Company to satisfy all obligations for the payment of such taxes.
(d) No Limit on Other Compensation Arrangements. Nothing contained in the
Program shall prevent the Company or any Affiliate from adopting or continuing
in effect other compensation arrangements, which may, but need not, provide for
the grant of options, restricted stock, Company stock, and other types of Awards
(subject to shareholder approval if such approval is required), and such
arrangements may be either generally applicable or applicable only in specific
cases.
(e) No Right to Employment. The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ of the Company or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability or any claim under the
Program, unless otherwise expressly provided in the Program.
(f) Governing Law. The validity, construction, and effect of the Program and any
rules and regulations relating to the Program and any Award Agreement shall be
determined in accordance with the laws of the State of Florida without giving
effect to the conflict of law principles thereof.
(g) Severability. If any provision of the Program or any Award is or becomes or
is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to
any Person or Award, or would disqualify the Program or any Award under any law
deemed applicable by the Committee, such provision shall be construed or deemed
amended to conform to the applicable laws, or if it cannot be construed or
deemed amended without, in the determination of the Committee, materially
altering the intent of the Program or the Award, such provision shall be
stricken as to such jurisdiction, Participant or Award, and the remainder of the
Program and any such Award shall remain in full force and effect.
(h) Other Laws. The Committee may refuse to issue, or transfer any other
consideration under, an Award if, acting in its sole discretion, it determines
that the issuance or transfer of such other consideration might violate any
applicable law or regulation (including applicable non-U.S. laws or
regulations), and any payment tendered to the Company by a Participant, other
holder, or beneficiary in connection with such Award shall be promptly refunded
to the relevant Participant, holder, or beneficiary. Without limiting the
generality of the foregoing, no Award granted hereunder shall be construed as an
offer to sell securities of the Company, and no such offer shall be outstanding,
unless and until the Committee in its sole discretion has determined that any
such offer, if made, would be in compliance with all applicable requirements of
the U.S. federal or non-U.S. securities laws and any other laws to which such
offer, if made, would be subject.
(i) No Trust or Fund Created. Neither the Program nor any Award shall create or
be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any other
Person. To the extent that any Person acquires a right to receive payments from
the Company or any Affiliate pursuant to an Award, such right shall be no
greater than the right of any unsecured general creditor of the Company or any
Affiliate.
(j) Headings. Headings are given to the Sections and subsections of the Program
solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Program or any provision thereof.
SECTION 8.
Term of the Program
(a) Effective Date. The Program shall be effective as of January 1, 1999.
(b) Expiration Date. The Program shall continue in effect unless terminated by
the Board.
Specific Terms for the 1999 Program Year
Program Year:
The performance year for 1999 will run from January 1 through December 31.
Financial Performance Criteria and Financial Performance Objectives:
The Financial Performance Criteria for the 1999 Program year are based on
corporate top line growth and EBIT growth, as well as division top line growth
and EBITDA growth. See individual Award Notifications for specific Financial
Performance Objectives.
Key Performance Objectives:
Key Performance Objectives (KPOs) will be established by the CEO and will be
approved by the Committee. Participants may have KPOs specific to their position
and contributions to the Company. Below are the Performance Levels for KPOs.
Key Performance Objectives - 50% Weighting
Result Performance Level
Significantly Exceeded Obj. Maximum
Fully Met Objectives Target
Met Some Objectives Threshold
Award Calculations:
At the end of the Program Year (December 31), the financial department of the
Company will determine the actual financial performance for the year. The CEO
will review the individual KPOs for other Participants to determine the
achievement of those Performance Levels. Once the Performance Levels have been
determined, the Office of the Chief Financial Officer or designee will calculate
the actual Award payment. This process will take place no later than March, once
the year-end financial books have been closed.
Award Payment:
All Awards shall be paid in cash. All Award payments will occur on or before
March 15, 2000.
Payments will be pro-rated for the number of months worked in the Program Year.
In order to receive the award payment, Participants of the Program must be an
employee of the company as of the last date of the affected Program Year
(December 31, 1999), unless otherwise provided for in any employment agreements.
Eligibility:
The Committee will approve all Participants for the Program Year. Participants
must be employees of the Company on or before September 30, to be eligible for
the current Program Year. The Committee will have discretion on eligibility.
<TABLE>
<CAPTION>
(dollar amounts in thousands except per share amounts)
Three Months Ended Nine Months Ended
-------------------------------- ----------------------------------
September 30, September 30, September 30, September 30,
1999 1998 1999 1998
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Basic income per common share computation:
Income available to common shareholders
from continuing operations $ 15,737 $ 22,021 $ 65,926 $ 68,252
------------- ------------- ------------- -------------
Income available to common shareholders
from discontinued operations $ - $ 6,907 $ - $ 30,020
------------- ------------- ------------- -------------
Income available to common shareholders from
gain on sale of discontinued operations,
net of tax $ 14,955 $ 216,365 $ 14,955 $ 216,365
------------- ------------- ------------- -------------
Average common shares outstanding 96,313 111,412 96,252 109,085
============= ============= ============= =============
Basic income per common share from
continuing operations $ 0.16 $ 0.20 $ 0.68 $ 0.63
============= ============= ============= =============
Basic income per common share from
discontinued operations $ - $ 0.06 $ - $ 0.28
============= ============= ============= =============
Basic income per common share from gain on
sale of discontinued operations, net of
tax $ 0.16 $ 1.94 $ 0.16 $ 1.98
============= ============= ============= =============
Basic net income per common share $ 0.32 $ 2.20 $ 0.84 $ 2.89
============= ============= ============= =============
Diluted income per common share computation:
Income available to common shareholders
from continuing operations $ 15,737 $ 22,021 $ 65,926 $ 68,252
Interest paid on convertible debt, net of
tax benefit - 928 - 2,784
------------- ------------- ------------- -------------
Income available to common shareholders and
assumed conversions from continuing
operations $ 15,737 $ 22,949 $ 62,926 $ 71,036
------------- ------------- ------------- -------------
Income available to common shareholders
from discontinued operations $ - $ 6,907 $ - $ 30,020
------------- ------------- ------------- -------------
Income available to common shareholders from
gain on sale of discontinued operations,
net of tax $ 14,955 $ 216,365 $ 14,955 $ 216,365
------------- ------------- ------------- -------------
Average common shares outstanding 96,313 111,412 96,252 109,085
Incremental shares from assumed conversions:
Convertible debt - 7,599 - 7,599
Stock options 1,380 1,864 838 3,237
------------- ------------- ------------- -------------
Diluted average common shares outstanding 97,693 120,875 97,090 119,921
============= ============= ============= =============
Diluted income per common share from
continuing operations $ 0.16 $ 0.19 $ 0.68 $ 0.59
============== ============= ============= =============
Diluted income per common share from
discontinued operations $ - $ 0.06 $ - $ 0.25
============== ============= ============= =============
Diluted income per common share from gain on
sale of discontinued operations, net of
tax $ 0.15 $ 1.79 $ 0.15 $ 1.80
============== ============= ============= =============
Diluted net income per common share $ 0.31 $ 2.04 $ 0.83 $ 2.64
============== ============= ============= =============
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> Dec-31-1999
<PERIOD-START> Jan-01-1999
<PERIOD-END> Jun-30-1999
<PERIOD-TYPE> 9-MOS
<CASH> 24,941
<SECURITIES> 0
<RECEIVABLES> 398,609
<ALLOWANCES> 15,230
<INVENTORY> 0
<CURRENT-ASSETS> 441,370
<PP&E> 91,677
<DEPRECIATION> 49,700
<TOTAL-ASSETS> 1,584,530
<CURRENT-LIABILITIES> 152,011
<BONDS> 0
0
0
<COMMON> 993
<OTHER-SE> 1,167,748
<TOTAL-LIABILITY-AND-EQUITY> 1,584,530
<SALES> 500,062
<TOTAL-REVENUES> 500,062
<CGS> 362,229
<TOTAL-COSTS> 362,229
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 410
<INTEREST-EXPENSE> 2,940
<INCOME-PRETAX> 22,706
<INCOME-TAX> 6,969
<INCOME-CONTINUING> 15,737
<DISCONTINUED> 14,955
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 30,692
<EPS-BASIC> 0.32
<EPS-DILUTED> 0.31
</TABLE>
