AMENDMENT NO. 3 TO LOAN AGREEMENT
Exhibit 10.30
AMENDMENT NO. 3 TO LOAN AGREEMENT
This Amendment No. 3 (the “Amendment”) dated as of Nov 28, 2007, is between Bank of
America, N.A. (the “Bank”) and Resources Connection, Inc. and Resources Connection LLC (the
“Borrower”).
RECITALS
A. The Bank and the Borrower entered into a certain Loan Agreement dated as of March 26,
2004 (together with any previous amendments, the “Agreement”).
B. The Bank and the Borrower desire to amend the Agreement.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Amendment shall have
the meaning given to them in the Agreement.
2. Release of Guarantor. The Bank hereby releases RECN of Texas, LP from any and all
obligations under that certain Continuing and Unconditional Guaranty dated December 8, 2005, which
Guaranty shall be of no further force or effect.
3. Amendments. The Agreement is hereby amended as follows:
3.1 Paragraph 1.2 is hereby amended to read in its entirety as follows:
| “1.2 | Availability Period. The line of credit is available between the date of this Agreement and December 1, 2009, or such earlier date as the availability may terminate as provided in this Agreement (the ‘Facility No. 1 Expiration Date’).” |
3.2 Paragraph 9.4 is hereby amended to read in its entirety as follows:
9.4 Dispute Resolution Provision. This paragraph, including the
subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute
Resolution Provision is a material inducement for the parties entering into this
agreement.
(a) This Dispute Resolution Provision concerns the resolution of any controversies or
claims between the parties, whether arising in contract, tort or by statute, including
but not limited to controversies or claims that arise out of or relate to: (i) this
agreement (including any renewals, extensions or modifications); or (ii) any document
related to this agreement (collectively a “Claim”). For the purposes of this Dispute
Resolution Provision only, the term “parties” shall include any parent corporation,
subsidiary or affiliate of the Bank involved in the servicing, management or
administration of any obligation described or evidenced by this agreement.
(b) At the request of any party to this agreement, any Claim shall be resolved by
binding arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code)
(the “Act”). The Act will apply even though this agreement provides that it is governed
by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the Act, the
then-current rules and procedures for the arbitration of financial services disputes of
the American Arbitration Association or any successor thereof (“AAA”), and the terms of
this Dispute Resolution Provision.
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In the event of any inconsistency, the terms of this Dispute Resolution Provision shall
control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or
(ii) enforce any provision of this arbitration clause, the Bank may designate another
arbitration organization with similar procedures to serve as the provider of
arbitration.
(d) The arbitration shall be administered by AAA and conducted, unless otherwise
required by law, in any U.S. state where real or tangible personal property collateral
for this credit is located or if there is no such collateral, in the state specified in
the governing law section of this agreement. All Claims shall be determined by one
arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000). upon the
request of any party, the Claims shall be decided by three arbitrators. All arbitration
hearings shall commence within ninety (90) days of the demand for arbitration and close
within ninety (90) days of commencement and the award of the arbitrator(s) shall be
issued within thirty (30) days of the close of the hearing. However, the arbitrator(s),
upon a showing of good cause, may extend the commencement of the hearing for up to an
additional sixty (60) days. The arbitrator(s) shall provide a concise written statement
of reasons for the award. The arbitration award may be submitted to any court having
jurisdiction to be confirmed and have judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any
Claim and may dismiss the arbitration on the basis that the Claim is barred. For
purposes of the application of any statutes of limitation, the service on AAA under
applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit.
Any dispute concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s), except as set forth at subparagraph (j) of
this Dispute Resolution Provision. The arbitrator(s) shall have the power to award
legal fees pursuant to the terms of this agreement.
(f) The procedure described above will not apply if the Claim, at the time of the
proposed submission to arbitration, arises from or relates to an obligation to the Bank
secured by real property. In this case, all of the parties to this agreement must
consent to submission of the Claim to arbitration.
(g) To the extent any Claims are not arbitrated, to the extent permitted by law the
Claims shall be resolved in court by a judge without a jury, except any Claims which
are brought in California state court shall be determined by judicial reference as
described below.
(h) Any Claim which is not arbitrated and which is brought in California state court
will be resolved by a general reference to a referee (or a panel of referees) as provided in
California Code of Civil Procedure Section 638. The referee (or presiding referee of
the panel) shall be a retired Judge or Justice. The referee (or panel of referees)
shall be selected by mutual written agreement of the parties. If the parties do not
agree, the referee shall be selected by the Presiding Judge of the Court (or his or her
representative) as provided in California Code of Civil Procedure Section 638 and the
following related sections. The referee shall determine all issues in accordance with
existing California law and the California rules of evidence and civil procedure. The
referee shall be empowered to enter equitable as well as legal relief, provide all
temporary or provisional remedies, enter equitable orders that will be binding on the
parties and rule on any motion which would be authorized in a trial, including without
limitation motions for summary judgment or summary adjudication . The award that
results from the decision of the referee(s) will be entered as a judgment in the court
that appointed the referee, in accordance with the provisions of California Code of
Civil Procedure Sections 644(a) and 645. The parties reserve the right to seek
appellate review of any judgment or order, including but not limited to, orders
pertaining to class certification, to the same extent permitted in a court of law.
(i) This Dispute Resolution Provision does not limit the right of any party to: (i)
exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or
non-judicial foreclosure against any real or personal property collateral; (iii)
exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain
an interim remedy, such as but not limited to, injunctive relief, writ
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of possession or appointment of a receiver, or additional or supplementary remedies.
The filing of a court action is not intended to constitute a waiver of the right of any
party, including the suing party, thereafter to require submittal of the Claim to
arbitration or judicial reference.
(j) Any arbitration, judicial reference or trial by a judge of any Claim will take
place on an individual basis without resort to any form of class or representative action (the
“Class Action Waiver”). Regardless of anything else in this Dispute Resolution
Provision, the validity and effect of the Class Action Waiver may be determined only by
a court or referee and not by an arbitrator. The parties to this Agreement acknowledge
that the Class Action Waiver is material and essential to the arbitration of any
disputes between the parties and is nonseverable from the agreement to arbitrate
Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the
parties’ agreement to arbitrate shall be null and void with respect to such proceeding,
subject to the right to appeal the limitation or invalidation of the Class Action
Waiver. The Parties acknowledge and agree that under no circumstances will a class
action be arbitrated.
(k) By agreeing to binding arbitration or judicial reference, the parties irrevocably
and voluntarily waive any right they may have to a trial by jury as permitted by law in
respect of any Claim. Furthermore, without intending in any way to limit this Dispute
Resolution Provision, to the extent any Claim is not arbitrated or submitted to
judicial reference, the parties irrevocably and voluntarily waive any right they may
have to a trial by jury to the extent permitted by law in respect of such Claim. This
waiver of jury trial shall remain in effect even if the Class Action Waiver is limited,
voided or found unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION, BY JUDICIAL
REFERENCE, OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF
THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT
PERMITTED BY LAW.
3. Representations and Warranties. When the Borrower signs this Amendment, the
Borrower represents and warrants to the Bank that: (a) there is no event which is, or with notice
or lapse of time or both would be, a default under the Agreement except those events, if any, that
have been disclosed in writing to the Bank or waived in writing by the Bank (b) the representations
and warranties in the Agreement are true as of the date of this Amendment as if made on the date of
this Amendment, (c) this Amendment does not conflict with any law, agreement, or obligation by
which the Borrower is bound, and (d) if the Borrower is a business entity or a trust, this
Amendment is within the Borrower’s powers, has been duly authorized, and does not conflict with any
of the Borrower’s organizational papers.
4. Effect of Amendment. Except as provided in this Amendment, all of the terms and
conditions of the Agreement shall remain in full force and effect.
5. Counterparts. This Amendment may be executed in counterparts, each of which when so
executed shall be deemed an original, but all such counterparts together shall constitute but one
and the same instrument.
6. FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT:
(A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN OUTLINE OF
TERMS AND CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM
SHEET OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE CONTRARY, (C)
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
UNDERSTANDINGS OF THE PARTIES.
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This Amendment is executed as of the date stated at the beginning of this Amendment.
| BANK: Bank of America, N.A. |
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| By: | /s/ XXXXXX XXXXXXXX | |||
| Xxxxxx Xxxxxxxx, Vice President | ||||
| BORROWER(S): Resources Connection, Inc. |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, President and CEO | ||||
| Resources Connection LLC | ||||
| By: | Resources Connection, Inc. a Delaware Corporation, as Sole Member |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, President and CEO | ||||
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CONSENT AND REAFFIRMATION OF
GUARANTOR(S)
GUARANTOR(S)
Each of the undersigned, as a guarantor of the Borrower’s obligations to the Bank under the
Agreement, hereby (i) acknowledges and consents to the foregoing Amendment, (ii) reaffirms its
obligations under its respective guaranty in favor of the Bank and under any agreement under which
it has granted to the Bank a lien or security interest in any of its real or personal property, and
(iii) confirms that such guaranty and other agreements (if any) remain in full force and effect,
without defense, offset, or counterclaim. (Capitalized terms used herein shall have the meanings
specified in the foregoing Amendment.)
Although each of the undersigned has been informed of the terms of the Amendment, each
understands and agrees that the Bank has no duty to so notify it or any other guarantor or to seek
this or any future acknowledgment, consent or reaffirmation, and nothing contained herein shall
create or imply any such duty as to any transactions, past or future.
Dated as of Nov. 28, 2007.
| RC Management Group LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, Manager | ||||
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