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EXHIBIT 10.7
SECOND AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement"), is dated as of November 18, 1998, by and among AHL SERVICES, INC.
("AHL"), certain other Subsidiaries of AHL identified on the signature pages
hereto (together with AHL, sometimes individually referred to as a "Borrower"
and collectively are referred to as the "Borrowers"), the financial institutions
listed on the signature pages hereto as lenders (the "Lenders"), and First Union
National Bank, a national banking association ("First Union"), as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
RECITALS
WHEREAS, First Union, First Union National Bank, London Branch, Bank of
America, FSB, Wachovia Bank N.A., SunTrust Bank, Atlanta, NationsBank, N.A.,
Bank of America National Trust and Savings Association, London Branch, Dresdner
Bank AG, New York and Grand Cayman Branches and Fleet National Bank (such
Lenders are referred to herein collectively as the "Existing Lenders"), the
Administrative Agent and the Borrowers are parties to that certain Amended and
Restated Credit Agreement dated as of February 10, 1998, as amended by that
certain First Amendment to Amended and Restated Credit Agreement dated as of
July 9, 1998 (as so amended, the "Existing Credit Agreement"; and as amended by
this Agreement, the "Amended Credit Agreement"; capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to them in the
Existing Credit Agreement); and
WHEREAS, the Borrowers, Lenders and Administrative Agent desire to
enter into this Agreement to, among other things: (a) amend the Existing Credit
Agreement to, subject to certain terms and conditions contained herein, (i)
extend the maturity date of the Credit Facility to five years from the date
first set forth above, (ii) increase the Aggregate Commitment from One Hundred
Fifty Million Dollars ($150,000,000) to Two Hundred Ten Million Dollars
($210,000,000), to finance acquisitions and to provide working capital for the
Borrowers, (iii) increase the Foreign Currency Sublimit so that the limit on the
Assigned Dollar Value of the principal amount of all Foreign Currency Loans made
under the Revolving Facility is increased from Seventy-Five Million Dollars
($75,000,000) to One Hundred Million Dollars ($100,000,000), (iv) modify certain
of the financial and negative covenants contained therein, and (v) increase the
Swingline Committed Amount from Seven Million Five Hundred Thousand Dollars
($7,500,000) to Ten Million Dollars ($10,000,000); and (b) add one or more
financial institutions as Lenders (the "New Lenders") under the Amended Credit
Agreement.
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NOW, THEREFORE, in consideration of the premises and the agreements,
covenants and provisions herein contained and for TEN DOLLARS ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO EXISTING CREDIT AGREEMENT
Subject to the satisfaction of the condition precedent set forth in
Section 3 of this Agreement, the Borrowers, the Lenders and the Administrative
Agent hereby agree that the Existing Credit Agreement be, and it hereby is,
amended as follows:
1.1 General. Upon and after the date hereof, all references to the
Existing Credit Agreement in that document or in any other Loan Document shall
mean the Existing Credit Agreement as amended hereby. Except as expressly
provided herein, the execution and delivery of this Agreement does not and will
not amend, modify or supplement any provision of, or constitute a consent to or
a waiver of any noncompliance with the provisions of, the Existing Credit
Agreement, and, except as specifically provided in this Agreement, the Existing
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
1.2 Amendment to Section 1.1. Section 1.1 of the Existing Credit
Agreement is further amended by
(a) amending and restating the following defined terms to
read in their entirety as follows:
"Aggregate Commitment" means Two Hundred Ten
Million Dollars ($210,000,000).
"Expiration Date" means November 18, 2003.
"Foreign Currency Sublimit" means, with respect to
the Revolving Facility, the Assigned Dollar Value of One
Hundred Million Dollars ($100,000,000), and with respect to
the European Swingline Facility, the Assigned Dollar Value of
Seven Million Five Hundred Thousand Dollars ($7,500,000),
being the maximum aggregate Loans to be made in the
Alternative Currency under the respective Facilities.
"Swingline Committed Amount" means $10,000,000.
(b) deleting in its entirety the defined term "EMU
Event".
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1.3 Amendments to Section 3.1(c). The last sentence of Section
3.1(c) of the Existing Credit Agreement is hereby amended and restated to read
in its entirety as follows:
The Applicable Margin provided for in Section 3.1(a) shall
initially be set at 1.625% for the period commencing on
November 18, 1998 through (but not including) the date which
is five (5) Business Days after receipt by the Administrative
Agent of the financial statements for the fourth fiscal
quarter of AHL and its Subsidiaries ending on December 31,
1998, required to be delivered by Borrowers pursuant to
Section 6.1(a) hereof, together with the Officer's Compliance
Certificate required to be delivered pursuant to Section 6.2
hereof in connection with such financial statements.
1.4 Amendments to Section 3.1(d). Section 3.1(d) of the Existing
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(d) Determination of Applicable Margin. Except
as provided in Section 3.1(c) above, the Applicable Margin
with respect to such LIBOR Rate Loans shall be determined on
the earlier of (A) at the end of each fiscal quarter hereof by
reference to the ratio of Consolidated Total Indebtedness of
AHL and its Subsidiaries as of the end of such fiscal quarter
to Consolidated Pro Forma Adjusted EBITDA for AHL and its
Subsidiaries for the period of four (4) consecutive fiscal
quarters ending on the last day of such fiscal quarter, and
(B) where the Borrowers are required to deliver an officer's
certificate under Section 9.4(g)(v) in connection with the
consummation of an acquisition, by reference to the ratio of
Consolidated Total Indebtedness of AHL and its Subsidiaries as
of the most recently ended fiscal quarter to Consolidated Pro
Forma Adjusted EBITDA for AHL and its Subsidiaries for the
period of four (4) consecutive fiscal quarters ending on the
last day of such fiscal quarter (calculated on a pro forma
basis in accordance with said Section), in each case, as
follows:
Total Indebtedness/Pro LIBOR Margin
---------------------- ------------
Forma Adjusted EBITDA
---------------------
Greater than or equal to 3.50 1.750%
to 1.00
Greater than or equal to 3.00 1.625%
to 1.00 but less than 3.50 to
1.00
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Greater than or equal to 2.50 1.375%
to 1.00 but less than 3.00 to
1.00
Greater than or equal to 1.50 1.125%
to 1.00 but less than 2.50 to
1.00
Less than 1.50 to 1.00 0.875%
All adjustments to the Applicable Margin shall be made by the
Administrative Agent as provided in Section 3.1(e) below.
1.5 Amendments to Section 3.3(a). Section 3.3(a) of the Existing
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(a) Facility Fee.
(i) Payment of Facility Fee. Commencing
on November 18, 1998 and continuing through and
including the Revolving Facility Termination Date,
the Borrowers shall pay to the Administrative Agent,
for the account of the Lenders, a non-refundable
facility fee (the "Facility Fee") on the average
daily Aggregate Commitment of the Lenders outstanding
at a rate per annum (the "Facility Fee Percentage")
(based on a 360 day year), as set forth below in this
Section 3.3(a). The Facility Fee shall be payable
quarterly in arrears on the last Business Day of each
calendar quarter commencing March 31, 1998, and on
the Revolving Facility Termination Date. Such
Facility Fee shall be distributed by the
Administrative Agent between the Lenders pro rata in
accordance with the Lenders' respective Commitment
Percentages.
(ii) Initial Facility Fee Percentage.
The Facility Fee Percentage shall initially be set at
0.375% for the period commencing on November 18, 1998
through (but not including) the date which is five
(5) Business Days after receipt by the Administrative
Agent of the financial statements for the fourth
fiscal quarter of AHL and its Subsidiaries ending on
December 31, 1998, required to be delivered by
Borrowers pursuant to Section 6.1(a) hereof, together
with the Officer's Compliance Certificate required to
be delivered pursuant to Section 6.2 hereof in
connection with such financial statements.
(iii) Determination of Facility Fee
Percentage. Except as provided in clause (ii) of this
Section 3.1(a), the Facility Fee Percentage shall be
determined on the earlier of (A) at the end of each
fiscal quarter hereof by reference to the ratio of
Consolidated Total Indebtedness of AHL and its
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Subsidiaries as of the end of such fiscal quarter to
Consolidated Pro Forma Adjusted EBITDA for AHL and
its Subsidiaries for the period of four (4)
consecutive fiscal quarters ending on the last day of
such fiscal quarter, and (B) where the Borrowers are
required to deliver an officer's certificate under
Section 9.4(g)(v) in connection with the consummation
of an acquisition, by reference to the ratio of
Consolidated Total Indebtedness of AHL and its
Subsidiaries as of the most recently ended fiscal
quarter to Consolidated Pro Forma Adjusted EBITDA for
AHL and its Subsidiaries for the period of four (4)
consecutive fiscal quarters ending on the last day of
such fiscal quarter (calculated on a pro forma basis
in accordance with said Section), in each case, as
follows:
Total Indebtedness/Pro Facility Fee
---------------------- ------------
Forma Adjusted EBITDA Percentage
--------------------- ----------
Greater than or equal to .500%
3.50 to 1.00
Greater than or equal to .375%
3.00 to 1.00 but less than
3.50 to 1.00
Greater than or equal to .375%
2.50 to 1.00 but less than
3.00 to 1.00
Greater than or equal to .375%
1.50 to 1.00 but less than
2.5 to 1.00
Less than 1.50 to 1.00 .375%
All adjustments to the Facility Fee Percentage shall
be made by the Administrative Agent as provided in
Section 3.3(a)(iv) below.
(iv) Adjustments to Facility Fee
Percentage. Adjustments, if any, in the Facility Fee
Percentage shall be made by the Administrative Agent
five (5) Business Days after receipt by the
Administrative Agent of (i) quarterly financial
statements for AHL and its Subsidiaries and the
accompanying Officer's Compliance Certificate setting
forth the ratio of Consolidated Total Indebtedness to
Consolidated Pro Forma Adjusted EBITDA for AHL and
its Subsidiaries as of the most recent fiscal quarter
end (calculated as provided in subsection (d) above),
and (ii) each officer's certificate setting forth the
ratio of Consolidated Total Indebtedness to
Consolidated Pro Forma Adjusted EBITDA for AHL and
its Subsidiaries calculated on a pro forma basis
required to be delivered pursuant to Section 9.4(g)
(v).
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If AHL fails to deliver such financial statements and
certificate within the time required by Section 6.2
or Section 9.4(g)(v), as applicable, the Facility Fee
Percentage shall be the highest Facility Fee
Percentage set forth above until five (5) Business
Days after the delivery of such financial statements
and certificate.
1.6 Amendments to Section 8.1. Section 8.1 of the Existing Credit
Agreement is hereby amended and restated to read in its entirety as follows:
SECTION 8.1 Capitalization Ratio. At any date (a) on
or prior to December 31, 1999, permit the ratio of
Consolidated Total Indebtedness to Total Capitalization to be
more than 0.70 to 1.00, (b) after December 31, 1999 and on or
prior to December 31, 2000, permit the ratio of Consolidated
Total Indebtedness to Total Capitalization to be more than
0.65 to 1.00, and (c) after December 31, 2000, permit the
ratio of Consolidated Total Indebtedness to Total
Capitalization to be more than 0.60 to 1.00.
1.7 Amendments to Section 8.2. Section 8.2 of the Existing Credit
Agreement is hereby amended and restated to read in its entirety as follows:
SECTION 8.2 Total Indebtedness to Pro Forma EBITDA.
As of any fiscal quarter end, permit the ratio of (a)
Consolidated Total Indebtedness of AHL and its Subsidiaries as
of such date to (b) Consolidated Pro Forma EBITDA of AHL and
its Subsidiaries for the period of four (4) consecutive fiscal
quarters ending on or immediately prior to such date to exceed
(i) 3.75 to 1.00, at each fiscal quarter end during the period
commencing on November 18, 1998 through and including
September 30, 1999, and (ii) 3.50 to 1.00, at each fiscal
quarter end thereafter.
1.8 Amendments to Section 8.3. Section 8.3 of the Existing Credit
Agreement is hereby amended and restated to read in its entirety as follows:
SECTION 8.3 [RESERVED]
1.9 Amendments to Section 9.1(j). Clause (j) of Section 9.1 of the
Existing Credit Agreement is hereby deleted in its entirety.
1.10 Amendments to Section 9.4(g). Clause (ii) of Section 9.4(g) of
the Existing Credit Agreement is hereby amended and restated in its entirety as
follows:
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(ii) no Default or Event of Default is in
existence at the time of such acquisition or would be created
as a consequence of such acquisition, and after giving effect
to any such acquisition on a pro forma basis, the ratio of
Consolidated Total Indebtedness of AHL and its Subsidiaries as
of the most recently ended fiscal quarter to Consolidated Pro
Forma EBITDA of AHL and its Subsidiaries for the period of
four (4) consecutive fiscal quarters ending on the last day of
such fiscal quarter end will not exceed 3.50 to 1.00,
1.11 Amendments to Section 12.9. Clause (a) of Section 12.9 of the
Existing Credit Agreement is hereby amended and restated in its entirety as
follows:
(a) increase the amount or extend the time of the
obligation of the Lenders to make Loans, provided, however,
that First Union as Lender may at any time, in its sole
discretion (but shall be under no obligation to), approve any
increases requested by Borrowers in the amount of the
Aggregate Commitment without the approval of any other Lender
or Lenders (but in no event will any Lender's Commitment be
increased without the prior written consent of such Lender) so
long as after giving effect to any such proposed increase (x)
no Default or Event of Default has occurred and shall be
continuing, and (y) the Aggregate Commitment shall not exceed
$250,000,000,
1.12 Amendments to Section 12.20. Section 12.20 of the Existing
Credit Agreement is hereby amended and restated in its entirety as follows:
SECTION 12.20 EMU; Continuity of Contract, Etc.
(a) Definitions. As used in this Section 12.20 the
following terms have the following meanings:
"beginning of the third stage of EMU" means the date the third
stage of EMU begins (at the date of this Agreement expected to
be January 1, 1999) or the date on which circumstances arise
which, in the opinion of the Administrative Agent, have
substantially the same effect and result in substantially the
same consequences as the beginning of the third stage of EMU
as contemplated by the Treaty on European Union.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of change over to or operation of
a single or unified European currency
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(whether known as the euro or otherwise), being in part the
implementation of the third stage of EMU.
"euro" means the single currency to which participating member
states of the European Union are converting.
"euro unit" means the currency unit of the euro.
"fixed exchange rate" means the exchange rate for a national
currency unit into a euro unit set in accordance with EMU
legislation in effect from time to time.
"national currency unit" means the unit of currency (other
than a euro unit) of a participating member state.
"participating member state" means each state so described in
any EMU legislation.
"Treaty on European Union" means the treaty of Rome of March
25, 1957, as amended by the Single European Xxx 0000 and the
Maastricht Treaty ( signed February 7, 1992), as amended from
time to time.
(b) Effectiveness of Provisions. The provisions
of clauses (c) through (m) below, inclusive, shall be
effective at and from the later of the execution of this
Agreement or the beginning of the third stage of EMU,
provided, that if and to the extent that any such provision
relates to any state (or the currency of such state) that is
not a participating member state on the beginning of the third
stage of EMU, such provision shall become effective in
relation to such state (and the currency of such state) at and
from the date on which such state becomes a participating
member state.
(c) Continuity of Contract. The parties to this
Agreement agree that the occurrence or non-occurrence of EMU,
any event or events associated with the EMU and/or the
introduction of the euro in all or any part of the European
Union will not result in the discharge, cancellation,
rescission or termination in whole or in part of any agreement
between any the parties hereto or give the Administrative
Agent, the Lenders or the Borrowers the right to cancel,
rescind, terminate or vary any agreement, other than as
specifically provided in this Agreement.
(d) Redenomination and Alternative Currencies.
Each obligation of any party under this Agreement which has
been denominated in the national currency unit of a
participating member state shall be redenominated into the
euro unit at the fixed exchange rate, provided, that if and to
the extent that any EMU legislation provides that following
the beginning of the third stage of EMU an amount denominated
either in the euro unit or in the national currency unit of a
member state and payable within the member state by crediting
an account of a creditor can be paid by a debtor either
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in the euro unit or in that national currency unit, each party
to this Agreement shall be entitled to pay or repay any such
amount either in the euro unit or in such national currency
unit; provided, however, any amount paid in a national
currency unit shall equal, at the fixed exchange rate for that
national currency unit, the required amount stated to be due
in euro units.
(e) Loans. Any Loan in the currency of a
participating member state shall be made in the euro unit,
provided that any Loan may, if so requested by any Borrower,
be made in the national currency unit (based upon the fixed
exchange rate) of any participating member state so long as
such national currency unit continues to be available as legal
tender for obligations of the same type or character as the
obligations set forth in this Agreement, is freely convertible
and is not subject to exchange controls.
(f) Business Days. With respect to any amount
denominated or to be denominated in the euro unit or a
national currency unit, any reference to a "Business Day"
shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for
business in New York City and prime banks in London generally
provide quotations for deposits denominated in the euro unit
and such national currency unit.
(g) Payments to the Administrative Agent. Those
Sections of this Agreement providing for payment or repayment
in a national currency unit shall be construed so that, in
relation to the payment of any amount of euro units or
national currency units, such amount shall be made available
to the Administrative Agent in immediately available, freely
transferable, cleared funds to such account with each bank (in
such principal financial center) as the Administrative Agent
may from time to time nominate for this purpose.
(h) Payment by the Administrative Agent to the
Lenders. Any amount payable by the Administrative Agent to the
Lenders under this Agreement in the national currency unit of
a participating member state shall be paid in the currency
received by it from the Borrowers.
(i) Payments by the Administrative Agent or
Lenders Generally. With respect to the payment of any amount
denominated in the euro unit or in a national currency unit,
the Administrative Agent shall not be liable to the Borrowers
or any of the Lenders, nor shall any Lender be liable to the
Borrower or the Administrative Agent, in any way whatsoever
for any delay, or the consequences of any delay, in the
crediting to any account of any amount required by this
Agreement to be paid by the Administrative Agent or such
Lender, as the case may be, if the Administrative Agent or
such Lender, as the case may be, has made reasonable effort to
effect all relevant steps to achieve, on the date required by
the Agreement, the payment of such
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amount in immediately available, freely transferable, cleared
funds (in the euro unit or, as the case may be, in a national
currency unit) to the account with the bank in the principal
financial center in the participating member state which the
Borrowers or, as the case may be, the Administrative Agent or
any Lender shall have specified for such purpose. In this
paragraph, "all relevant steps" means all such steps as may be
prescribed from time to time by the regulations or operating
procedures of such clearing or settlement system as the
Administrative Agent or any Lender, as the case may be, may
from time to time reasonably believe to be in effect for the
purpose of clearing or settling payment of the euro.
(j) Basis of Accrual. If the basis of accrual of
interest or fees expressed in this Agreement with respect to
the currency of any state that becomes a participating member
state, in Administrative Agent's judgment, shall not be
available because interest rate quotes for a national currency
unit are no longer provided, or shall be inconsistent with any
convention or practice in the London Interbank Market for the
basis of accrual of interest or fees in respect of the euro,
such convention or practice shall replace such expressed basis
effective as of and from the date on which such state becomes
a participating member state; provided, however, if any Loan
in the currency of such state is outstanding immediately prior
to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(k) Rounding and Other Consequential Changes.
Without prejudice and in addition to any method of conversion
or rounding prescribed by any EMU legislation and without
prejudice to the respective liabilities for indebtedness of
the Borrowers to the Administrative Agent and to the Lenders
and the Administrative Agent and the Lenders to the Borrowers
under or pursuant to this Agreement:
(i) each reference in this Agreement to
a minimum amount (or an integral multiple thereof) in
a national currency unit to be paid to or by the
Administrative Agent or Lenders shall be replaced by
a reference to such reasonably comparable amount (or
an integral multiple thereof) in the euro unit as the
Administrative Agent may from time to time specify;
and
(ii) except as expressly provided in
this Agreement, each provision of this Agreement,
including, without limitation, the right to combine
currencies to effect a set off, shall be subject to
such reasonable changes of interpretation as the
Administrative Agent may from time to time specify to
be necessary or appropriate to reflect the
implementation of the EMU to place the parties hereto
in substantially the position they would have
occupied had the EMU not been implemented.
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(l) Exchange Indemnification and Increased
Costs. The Borrowers shall upon demand from the Administrative
Agent, pay to the Administrative Agent for the account of each
Lender the amount of (i) any loss or cost or increased cost
incurred by the Administrative Agent or such Lender in respect
of any Loans made hereunder as a result of the Borrowers'
election to borrow in national currency units and repay in
euro units or to borrow in euro units and repay in national
currency units, (ii) any reduction in any amount payable to,
or in the effective return on its capital to, the
Administrative Agent or such Lender in respect of any Loans
made hereunder as a result of the Borrowers' election to
borrow in national currency units and repay in euro units or
to borrow in euro units and repay in national currency units,
(iii) any interest or other return in respect of any Loans
made hereunder, including principal, foregone by the
Administrative Agent or its holding company or any Lender or
its holding company, as a result of the introduction of,
change over to or operation of the euro in any participating
member state, or (iv) any currency exchange loss that the
Administrative Agent or such Lender sustains in respect of any
Loans made hereunder as a result of the Borrowers' election to
borrow in national currency units and repay in euro units or
to borrow in euro units and repay in national currency units.
(m) Further Assurance. Each Borrower agrees, at
the request of the Administrative Agent, at the time of or at
any time following the implementation of the EMU, to enter
into an agreement amending this Agreement in such manner as
the Administrative Agent reasonably shall request in order to
reflect the implementation of the EMU to place the parties
hereto in the position they would have been in had the EMU not
been implemented.
1.13 Amendments to Schedule 1.1. Schedule 1.1 to the Existing
Credit Agreement is hereby amended and restated in its entirety as set forth on
Exhibit A attached hereto and made a part hereof.
SECTION 2. REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the Lenders as follows:
2.1 Authorization of Amendment, Etc. The Borrower has the right
and power, and has taken all necessary action to authorize it, to execute,
deliver and perform this Agreement in accordance with its terms. This Agreement
has been duly executed and delivered by the Borrower and is a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
2.2 Compliance of Amendment with Laws, Etc. The execution,
delivery and performance of this Agreement in accordance with its terms do not
and will not, by the passage of time, the giving of notice or otherwise,
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(a) require any governmental approval or violate any
applicable law relating to the Borrower;
(b) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation or bylaws of
the Borrower, any material provisions of any indenture, agreement or
other instrument to which the Borrower is a party or by which the
Borrower or any of its properties may be bound or any governmental
approval relating to the Borrower, or
(c) result in or require the creation or imposition of
any Lien upon or with respect to any property now owned or hereafter
acquired by the Borrower.
2.3 Representations in Credit Agreement. Immediately prior to the
effectiveness of this Agreement, all of the representations set forth in the
Existing Credit Agreement were accurate in all material respects as of the date
hereof, except to the extent that such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties
shall have been true and correct on and as of such date. After giving effect to
this Agreement, all of the representations and warranties set forth in the
Amended Credit Agreement, will be accurate in all material respects as of the
date hereof, except to the extent that such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such date.
SECTION 3. CONDITIONS TO EFFECTIVENESS
The effectiveness of this Agreement and each of the amendments set
forth in Section 1 hereof is subject to the satisfaction in full of each of the
following conditions precedent:
3.1 Executed Loan Documents. This Agreement shall have been duly
authorized and executed by the parties thereto in form and substance
satisfactory to the Administrative Agent, shall be in full force and effect and
no default shall exist thereunder, and the Borrowers and Lenders party thereto
shall have delivered original counterparts thereof to the Administrative Agent.
3.2 Delivery of New Notes. The Borrowers shall have duly executed
and delivered (a) new Revolving Notes, each dated the date hereof, to each of
the Lenders, and (b) a new Swingline Note and European Swingline Note, each
dated the date hereof, to First Union, in form and substance satisfactory to
each of the Lenders.
SECTION 4. ADDITION OF LENDERS
Each New Lender: (a) confirms that it has received from the Borrowers a
copy of the Existing Credit Agreement, together with copies of the most recent
financial statements and projections of the Borrowers delivered pursuant to
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Section 6.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Agreement and become a party to the Amended Credit Agreement as a Lender; (b)
agrees that it will, independently and without reliance upon any other Lender or
the Administrative Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Amended Credit Agreement; (c) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Amended Credit Agreement and the other
Loan Documents as are delegated to such Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; and (d)
agrees that, as of the effective date of this Agreement and without any further
action, it will become a Lender party to the Amended Credit Agreement and will
perform in accordance with their terms all the obligations which by the terms of
the Amended Credit Agreement and the other Loan Documents are required to be
performed by it as a Lender. The Borrowers and Lenders hereby agree that the
address for each New Lender for purposes of receiving notice and other
communications under the Amended Credit Agreement shall be as set forth on the
signature pages hereto opposite the name of such New Lender.
SECTION 5. MISCELLANEOUS
5.1 Counterparts. This Agreement may be executed by each party to
this Agreement upon a separate copy, and in such case one counterpart of this
Agreement shall consist of enough of such copies to reflect the signature of all
of the parties to this Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or its terms to produce or account
for more than one of such counterparts.
5.2 Section References. The references in this Agreement to any
section are, unless otherwise specified, to such section of this Agreement.
5.3 Construction. This Agreement is a Loan Document executed
pursuant to the Existing Credit Agreement and shall be construed, administered
and applied in accordance with all of the terms and provisions of the Existing
Credit Agreement.
5.4 Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of Georgia, without
reference to the conflicts or choice of law principles thereof.
5.5 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
- 13 -
14
5.6 Effectiveness. The amendments set forth in Section 1 hereof
shall become effective as of the date of this Agreement (and shall not apply to
any period prior to the date of this Agreement), upon the satisfaction of all of
the conditions precedent set forth in Section 3 hereof. Notwithstanding anything
in the immediately preceding sentence to the contrary, the Lenders hereby agree
that, as between the Lenders, (i) with respect to any outstanding Revolving
Loans made prior to the date of this Agreement, the new Lender allocations as
set forth in Exhibit A attached hereto take effect on the date which is two (2)
Business Day after the date of this Agreement, and (ii) with respect to any
Revolving Loans made on or after the date of this Agreement, the new Lender
allocations as set forth in Exhibit A attached hereto will take effect on the
date of this Agreement.
[Signatures appear on following pages]
- 14 -
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers hereunder duly authorized as of the day
and year first written above.
BORROWERS:
AHL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
-----------------------------------
[CORPORATE SEAL]
XXXXXXXXXXX SECURITY, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
-----------------------------------
[CORPORATE SEAL]
XXXXXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
-----------------------------------
[CORPORATE SEAL]
ADI U.K. LIMITED
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Director
-----------------------------------
[CORPORATE SEAL]
16
AVIATION DEFENCE INTERNATIONAL
GERMANY LIMITED
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Director
-----------------------------------
[CORPORATE SEAL]
XXXXXXXXXXX HOLDINGS LIMITED
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
-----------------------------------
[CORPORATE SEAL]
THE ADI GROUP LIMITED
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Director
-----------------------------------
[CORPORATE SEAL]
ADI ALPHA HOLDING GMBH
By: /s/ X. Xxxxxxxxx
--------------------------------------
Title: Managing Director
-----------------------------------
17
LENDERS:
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President
-----------------------------------
18
FIRST UNION NATIONAL BANK,
LONDON BRANCH, as European
Swingline Lender
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Title: AVP Corporate Banking
-----------------------------------
19
WACHOVIA BANK, N.A., as Lender
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Title: Vice President
-----------------------------------
20
SUNTRUST BANK, ATLANTA, as Lender
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Title: Associate
-----------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President
-----------------------------------
21
NATIONSBANK, N.A., as Lender
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Senior Vice President
-----------------------------------
22
FLEET NATIONAL BANK, as Lender
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Title: Vice President
-----------------------------------
23
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
AG CAYMAN ISLAND BRANCH, as Lender
By: /s/ X.X. Xxxxxx
--------------------------------------
Title: Senior Vice President
-----------------------------------
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Vice President
-----------------------------------
Address: 000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier: 000-000-0000
00
XXXXXXXX XXXX XX, XXX XXXX AND GRAND
CAYMAN BRANCHES, as Lender
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------
Title: Vice President
-----------------------------------
By: /s/ Xxx Xxxxxxxx
--------------------------------------
Title: Senior Vice President
-----------------------------------
00
XXX XXXX XX XXXX XXXXXX, as Lender
By: /s/ X. X. Xxxxx
--------------------------------------
Title: Vice President
-----------------------------------
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopier: 000-000-0000
26
SCOTIABANK EUROPE plc, as Lender for
Revolving Loans made in
Alternative Currencies
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Title: Relationship Manager
-----------------------------------
Address: 00 Xxxxxxxx Xxxxxx
---------------------------------
Xxxxxx
---------------------------------
XX0X0 BB
---------------------------------
Telecopier: (00) 000 000 0000
------------------------------
27
EXHIBIT A
SCHEDULE 1.1: LENDERS AND COMMITMENTS
Lenders Commitment Commitment
------- ----------
(Dollars) Percentage
----------
First Union National $47,000,000.00 22.3809523810%
Bank and its Lender
Affiliates
NationsBank, N.A. $40,000,000.00 19.0476190476%
SunTrust Bank, $33,000,000.00 15.7142857143%
Atlanta
Wachovia Bank N.A. $25,000,000.00 11.9047619048%
Fleet National Bank $25,000,000.00 11.9047619048%
Dresdner Bank AG, $15,000,000.00 7.1428571429%
New York and Grand
Cayman Branches
The Bank of Nova $15,000,000.00 7.1428571429%
Scotia and its Lender
Affiliates
DG Bank Deutsche $10,000,000.00 4.7619047619%
Genossenschaftsbank
Cayman Islands
Branch
TOTAL: $210,000,000.00 100.0000000000%
