Exhibit 10.6
FIFTEENTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Fifteenth Amendment to Revolving Credit Agreement (this
"Amendment") is made as of August 30, 2002 by and among Provant, Inc. (the
"Borrower"), a Delaware business corporation having its principal place of
business at 00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, Fleet National
Bank, a national banking association ("Fleet"), Xxxxx Fargo Bank Iowa, N.A., a
national banking association ("Xxxxx Fargo"), Citizens Bank of Massachusetts, a
Massachusetts banking corporation ("Citizens"), and KeyBank National
Association, a national banking association ("KeyBank", together with Fleet,
Xxxxx Fargo and Citizens, the "Banks"), and Fleet National Bank, as agent for
itself and the other Banks (the "Agent").
RECITAL
WHEREAS, the Borrower, the Banks and the Agent previously entered into
that certain Revolving Credit Agreement, dated as of April 8, 1998, as
thereafter modified and amended by the First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and
Fourteenth Amendments thereto and letter agreements dated as of November 6, 2001
and June 28, 2002 (said Revolving Credit Agreement, as so amended prior to the
date hereof, the "Credit Agreement"), pursuant to which the Banks have made
available to the Borrower a revolving credit loan facility for its corporate
purposes; and
WHEREAS, the parties hereto now desire to further amend or modify the
Credit Agreement in certain respects, all as more particularly set forth
hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
Section 1. Definitions. All capitalized terms used herein without
definition shall have the respective meanings provided therefor in the Credit
Agreement.
Section 2. Amendments to Credit Agreement. The following definitions in
Section 1.1 are hereby amended in their entirety to provide as follows:
"Borrowing Base. At the relevant time of reference thereto, an
amount, determined by Agent by reference to the most recent
Borrowing Base Report delivered to Banks and Agent pursuant to
Section 7.4(h), equal to 100% of the total amount of Eligible
Accounts Receivable, plus: during the month of September,
2002, $6,184,000; provided, that, in no event shall such
amount exceed $45,484,000.
"Revolving Credit Loan Maturity Date. September 30, 2002, or
such earlier date on which the Total Commitment is terminated
pursuant to the provisions hereof."
Section 3. Additional Agreements.
(a) Section 3(c) of the Fourteenth Amendment is amended as follows: (i)
both references to the date "August 26, 2002" are deleted and replaced with the
date "September 23, 2002" and (ii) the following sentence is added at the end
thereof: "No later than September 10, 2002, Borrower will have met with
Quarterdeck with respect to the sale of the Government Division and obtained an
estimated value of the sale, a proposed timetable for the sale and the proposed
fee of the advisor, all of which will be promptly communicated to the Agent.".
(b) Borrower shall expeditiously and diligently negotiate, execute and
deliver to Agent an agreement, in form and substance satisfactory to Agent in
its sole discretion, among Borrower and each of Strategic Interactive, Inc.,
Xxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxx, Maxco, Inc., Xxxxx Xxxxxxx and Xxxxx
Xxxxx pursuant to which each such Person agrees to extend its right to receive
any cash contingent consideration payment due from Borrower and Guarantors until
at least September 30, 2002.
(c) Borrower shall deliver to Agent in form and substance satisfactory
to Agent in its sole discretion a current detailed aging of all Accounts
Receivable for each account debtor thereunder no later than (x) September 7,
2002 with respect to agings for July and (y) September 15, 2002 with respect to
agings for August.
(d) No later than September 15, 2002, Borrower shall deliver to Agent
in form and substance satisfactory to Agent in its sole discretion consolidated
and consolidating statements of profit and loss, balance sheet and cash flow
projections as of June 30, 2002 for each of Borrower, each operating division
and each entity and which shall reflect the consummation of the mergers and
restructuring of Borrower and its subsidiaries and divisions.
(e) The failure by Borrower to comply with any agreement, covenant or
provision of this Amendment shall constitute an Event of Default.
Section 4. Outstanding Obligations. Borrower hereby affirms and
acknowledges that (i) as of August 30, 2002, there is presently outstanding
loans and advances in the aggregate principal amount of $45,484,000 together
with accrued interest thereon and costs and expenses (collectively, the
"Amount") and (ii) the Amount is a valid obligation of Borrower and is due and
owing without defense, claim, setoff or counterclaim of any kind or nature
whatsoever.
Section 5. Conditions of Effectiveness. This Amendment shall become
effective upon satisfaction of the following conditions precedent: (i) Agent
shall have received a copy of this Amendment executed by Borrower and Banks and
consented and agreed to by Guarantors pursuant to the form of amendment set
forth as Annex A attached hereto (Agent shall provide Borrower and each Bank
with a copy of the executed Amendment), (ii) Agent shall have received payment
by Borrower of (a) an amendment fee of $50,000 for the pro rata benefit of the
Banks and (b) all outstanding invoices for professional fees, costs and expenses
and all fees, costs and expenses in accordance with Section 12 hereof; and (iii)
Agent shall have received such other certificates, instruments, documents,
agreements and opinions of counsel as may be
2
required by Agent or its counsel, each of which shall be in form and substance
satisfactory to Agent and its counsel.
Section 6. Loan Documents Ratified and Confirmed. The Credit Agreement
and each of the other Loan Documents, as they may be specifically supplemented
or amended by this Amendment, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed. Without limiting
the generality of the foregoing, the Security Documents and all of the
collateral described therein, do, and shall continue to, secure the payment of
all obligations under the Loan Documents, in each case as amended or
supplemented pursuant to this Amendment. All references to the "Credit
Agreement" contained in the Loan Documents shall mean or refer to the Credit
Agreement as amended and supplemented by this Amendment and as it may be further
amended, supplemented, modified and restated and in effect from time to time,
including without limitation any such amendment, supplement, modification or
restatement which increases the amount of Indebtedness owing by the Borrower
thereunder.
Section 7. Release. Borrower hereby releases, remises, acquits and
forever discharges each Bank, Agent and each Bank's and Agent's employees,
agents, representatives, consultants, attorneys, fiduciaries, officers,
directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, and related corporate divisions (all of the
foregoing hereinafter called the "Released Parties"), from any and all actions
and causes of action, judgments, executions, suits, debts, claims, demands,
liabilities, obligations, damages and expenses of any and every character, known
or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or
nature, for or because of any matter or things done, omitted or suffered to be
done by any of the Released Parties prior to and including the date of execution
hereof, and in any way directly or indirectly arising out of or in any way
connected to this Agreement or the Documents (all of the foregoing hereinafter
called the "Released Matters"). Borrower acknowledges that the agreements in
this Section are intended to be in full satisfaction of all or any alleged
injuries or damages arising in connection with the Released Matters.
Section 8. Conflicts. In the event of any express conflict between the
terms of this Amendment and the Credit Agreement, this Amendment shall govern.
Section 9. Representations and Warranties. Borrower hereby represents
and warrants as follows:
(a) This Amendment and the Credit Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are enforceable
against Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, Borrower hereby reaffirms
all covenants, representations and warranties made in the Credit Agreement to
the extent the same are not amended hereby and agree that all such covenants,
representations and warranties shall be deemed to have been remade as of the
effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing after
giving effect to this Amendment or would exist after giving effect to this
Amendment.
3
(d) Borrower has no defense, counterclaim or offset with respect to the
Credit Agreement.
Section 10. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended herein, the Credit Agreement, and
all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of Agent or Banks, nor
constitute a waiver of any provision of the Credit Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
Section 11. Bringdown. The Borrower hereby confirms that all
representations and warranties with respect to the Borrower and any Subsidiaries
contained in the Credit Agreement and each of the other Loan Documents and in
any other certificate or document delivered in connection therewith are true and
correct as of the date hereof, and that no Default or Event of Default is
outstanding or would be created by the consummation of the transactions
described herein.
Section 12. Fees, Costs and Expenses. Borrower agrees to pay on demand,
after reasonable documentation and itemization of the same, all the costs and
expenses of the Agent and the Banks, including all consultant and reasonable
legal fees and expenses, including without limitation all reasonable fees and
expenses of counsel in connection with the preparation, execution and delivery
of this Amendment and the other documents and instruments to be delivered
herewith and all UCC search and filing fees.
Section 13. Miscellaneous. This Amendment may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Amendment, it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought. This Amendment is intended to take effect as
a sealed instrument and shall for all purposes be construed in accordance with
and governed by the laws of The Commonwealth of Massachusetts (excluding the
laws applicable to conflicts or choice of law).
Section 14. Facsimile. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
4
Section 15. Conflicts. In the event of any express conflict between the
terms of this Amendment and the Credit Agreement, this Amendment shall govern.
In the event of any express conflict between the terms of the Credit Agreement
and the Dominion Account Agreement, the Credit Agreement will control solely
with respect to the rights, remedies and obligations of Fleet in its capacity as
Agent under the Credit Agreement and Borrower.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as an instrument under seal as of the date first above written.
PROVANT, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Title: Executive Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Title: Vice President
FLEET NATIONAL BANK, as Bank and Agent
By: /s/ Xxxxx. X. Xxxxxx
-------------------------------
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
-------------------------------
Title: Vice President
XXXXX FARGO BANK IOWA, N.A.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Title: Vice President
6
