EXHIBIT 10.1
LOAN AGREEMENT
FIRST UNION NATIONAL BANK
000 XXXX XXXXXX
XXXXXXXX, XXXXXXXXXXX 00000
(Hereinafter referred to as the "Bank")
GREENWICH TECHNOLOGY PARTNERS, INC.
ATTN XXXXX XXXXXX
00 XXXXXXXXX XXXX
XXXXXXXX, XXXXXXXXXXX 00000
(Individually and collectively, "Borrower")
This Loan Agreement ("Agreement") is entered into this 30th day of July, 1999,
by and between Bank and GREENWICH TECHNOLOGY PARTNERS, INC., a corporation
organized under the laws of the State of Delaware.
Borrower has applied to Bank for a loan or loans (individually and collectively,
the "Loan") evidenced by one or more promissory notes (whether one or more, the
"Note") as follows:
. Revolver without termout - in the principal amount of $2,500,000.00
which is evidenced by the Promissory Note dated July 30, 1999. The
Loan proceeds are to be used by Borrower solely to finance working
capital.
This Agreement applies to the loan and all Loan Documents. The terms "Loan
Documents" and "Obligations," as used in this Agreement, are defined in the
Note. The term "Borrower" shall include its Subsidiaries and Affiliates. As used
in this Agreement as to Borrower, "Subsidiary" shall mean any corporation of
which more than 50% of the issued and outstanding voting stock is owned directly
or indirectly by Borrower. As to Borrower, "Affiliate" shall have the meaning as
defined in 11 U.S.C. (S)101, except that the term "debtor" therein shall be
substituted by the term "Borrower" herein.
Relying upon the covenants, agreements, representations and warranties contained
in this Agreement, Bank is willing to extend credit to Borrower upon the terms
and subject to the conditions set forth herein, and Bank and Borrower agree as
follows:
REPRESENTATIONS. Borrower represents that from the date of this Agreement and
until final payment in full of the Obligations: Accurate Information. All
information now and hereafter furnished to Bank is and will be true, correct and
complete. Any such information relating to Borrower's financial condition will
accurately reflect Borrower's financial condition as of the date(s) thereof,
(including all contingent liabilities of every type, and Borrower further
represents that its financial condition has not changed materially or adversely
since the date(s) of such documents. Authorization; Non-Contravention. The
execution, delivery and performance by Borrower and any guarantor, as
applicable, of this Agreement and other Loan Documents to
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which it is a party are within its power, have been duly authorized by all
necessary action taken by the duly authorized officers of Borrower and any
guarantors and if necessary, by making appropriate filings with any governmental
agency or unit and are the legal, binding, valid and enforceable obligations of
Borrower and any guarantors; and do not (i) contravene, or constitute (with or
without the giving of notice or lapse of time or both) a violation of any
provision of applicable law, a violation of the organizational documents of
Borrower or any guarantor, or a default under any agreement, judgment,
injunction, order, decree or other instrument binding upon or affecting Borrower
or any guarantor, (ii) result in the creation or imposition of any lien (other
than the lien(s) created by the Loan Documents) on any of Borrower's or
guarantor's assets, or (iii) give cause for the acceleration of any obligations
of Borrower or any guarantor to any other creditor. Asset Ownership. Borrower
has good and marketable title to all of the properties and assets reflected on
the balance sheets and financial statements supplied Bank by Borrower, and all
such properties and assets are free and clear of mortgages, security deeds,
pledges, liens, charges, and all other encumbrances, except as otherwise
disclosed to Bank by Borrower in writing ("Permitted Liens"). To Borrower's
knowledge, no default has occurred under any Permitted Liens and no claims or
interests adverse to Borrower's present rights in its properties and assets have
arisen. Discharge of Liens and Taxes. Borrower has duly filed, paid and/or
discharged all taxes or other claims which may become a lien on any of its
property or assets, except to the extent that such items are being appropriately
contested in good faith and an adequate reserve for the payment thereof is being
maintained. Sufficiency of Capital. Borrower is not, and after consummation of
this Agreement and after giving effect to all indebtedness incurred and liens
created by Borrower in connection with the Loan, will not be insolvent within
the meaning of 11 U.S.C. (S)101(32). Compliance with Laws. Borrower is in
compliance in all material respects with all federal, state and local laws,
rules and regulations applicable to its properties, operations, business, and
finances, including, without limitation, any federal or state laws relating to
liquor (including 18 U.S.C. (S)3617 et seq.) or narcotics (including 21 U.S.C.
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(S)801 et seq.) and/or any commercial crimes, all applicable federal, state and
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local laws and regulations intended to protect the environment; and the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), if applicable.
Organization and Authority. Each corporate or limited liability company Borrower
and any guarantor, as applicable, is duly created, validly existing and in good
standing under the laws of the state of its organization, and has all powers,
governmental licenses, authorizations, consents and approvals required to
operate its business as now conducted. Each corporate or limited liability
company Borrower and any guarantor, if any, is duly qualified, licensed and in
good standing in each jurisdiction where qualification or licensing is required
by the nature of its business or the character and location of its property,
business or customers, and in which the failure to so qualify or be licensed, as
the case may be, in the aggregate, could have a material adverse effect on the
business, financial position, results of operations, properties or prospects of
Borrower or any such guarantor. No Litigation. There are no pending or
threatened suits, claims or demands against Borrower or any guarantor that have
not been disclosed to Bank by Borrower in writing. ERISA. Each employee pension
benefit plan, as defined in ERISA, maintained by Borrower meets, as of the date
hereof, the minimum funding standards of ERISA and all applicable regulations
thereto and requirements thereof, and of the Internal Revenue Code of 1954, as
amended. No "Prohibited Transaction" or "Reportable Event" (as both terms are
defined by ERISA) has occurred with respect to any such plan.
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AFFIRMATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing: Business Continuity. Borrower shall conduct its business in
substantially the same manner and locations as such business is now and has
previously been conducted. Maintain Properties. Borrower shall maintain,
preserve and keep its property in good repair, working order and condition,
making all needed replacements, additions and improvements thereto, to the
extent allowed by this Agreement. Access to Books & Records. Borrower shall
allow Bank, or its agents, during normal business hours, access to the books,
records and such other documents of Borrower as Bank shall reasonably require,
and allow Bank to make copies thereof at Bank's expense. Insurance. Borrower
shall maintain adequate insurance coverage with respect to its properties and
business against loss or damage of the kinds and in the amounts customarily
insured against by companies of established reputation engaged in the same or
similar businesses including, without limitation, commercial general liability
insurance, workmen's compensation insurance, and business interruption
insurance, and upon all Collateral (as defined in the Loan Documents) securing
the Obligations, such insurance as specified in the Loan Documents; all acquired
in such amounts and from such companies as Bank may reasonably require. Notice
of Default and Other Notices. (a) Notice of Default. Borrower shall furnish to
Bank immediately upon becoming aware of the existence of any condition or event
which constitutes a Default (as defined in the Loan Documents) or any event
which, upon the giving of notice or lapse of time or both, may become a Default,
written notice specifying the nature and period of existence thereof and the
action which Borrower is taking or proposes to take with respect thereto. (b)
Other Notices. Borrower shall promptly notify Bank in writing of (i) any
material adverse change in its financial condition or its business; (ii) any
material default under any material agreement, contract or other instrument to
which it is a party or by which any of its properties are bound, or any
acceleration of the maturity of any indebtedness owed by Borrower; (iii) any
material adverse claim against or affecting Borrower; or any part of its
properties; (iv) the commencement of, and any material determination in, any
material litigation with any third party or any material proceeding before any
governmental agency or unit affecting Borrower; and (v) at least thirty (30)
days prior thereto, any change in Borrower's name or address as shown above,
and/or any change in Borrower's structure. Compliance with Other Agreements.
Borrower shall comply with all terms and conditions contained in this Agreement,
and any other Loan Documents, and swap agreements, if applicable, as defined in
the Note. Payments of Debts. Borrower shall pay and discharge when due, and
before subject to penalty or further charge, and otherwise satisfy before
maturity or delinquency, all obligations, debts, taxes, and liabilities of
whatever nature or amount, except those which Borrower in good faith disputes.
Other Financial Information. Borrower shall deliver promptly such other
information regarding the operation, business affairs, and financial condition
of Borrower which Bank may reasonably request. Estoppel Certificate. Borrower,
within fifteen (15) days after request by Bank, will furnish a written statement
duly acknowledged of the amount due under the Loan and whether offsets or
defenses exist against the Obligations. Deposit Relationship. Borrower will
maintain its primary depository accounts with First Union. Cash Management
Relationship. Borrower will maintain its cash management accounts with First
Union.
NEGATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing:
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Government Intervention. Borrower shall not permit the assertion or making of
any seizure, vesting or intervention by or under authority of any government by
which the management of Borrower or any guarantor is displaced of its authority
in the conduct of its respective business or such business is curtailed or
materially impaired. Prepayment of Other Debt. Borrower shall not retire any
long-term debt entered into prior to the date of this Agreement at a date in
advance of its legal obligation to do so without the express written consent of
Bank. Retire or Repurchase Capital Stock. Borrower shall not retire or otherwise
acquire any of its capital stock, except for repurchases from terminated or
former employees. Default on Other Contracts or Obligations. Borrower shall not
default on any material contract with or obligations when due to a third party
or default in the performance of any obligation to a third party incurred for
money borrowed. Judgment Entered. Borrower shall not permit the entry of any
monetary judgment or the assessment against, the filing of any tax lien against,
or the issuance of any writ of garnishment or attachment against any property of
or debts due Borrower. Change In Fiscal Year. Change its fiscal year without the
consent of Bank. Change of Control. Xxxxxx X. Xxxxxxxx, FGII Partners and
employees of Greenwich Technology Partners, Inc. shall collectively maintain at
all times no less than 51% of the ownership interest in Borrower. Guarantees.
Guarantee or otherwise become responsible for obligations of any other person or
persons other than the endorsement of checks and drafts for collection in the
ordinary course of business. Encumbrances. Create, assume, or permit to exist
any mortgage, security deed, deed of trust, pledge, lien, charge or other
encumbrance on any of its assets, whether now owned or hereafter acquired, other
than: (i) security interests required by the Loan Documents; (ii) liens for
taxes contested in good faith; or (iii) liens accruing by law for employee
benefits; and (iv) Permitted Liens.
FINANCIAL COVENANTS. Borrower agrees to the following provisions from the date
hereof until final payment in full of the Obligations, unless Bank shall
otherwise consent in writing: EBIT to Interest Ratio. Borrower shall maintain an
EBIT to Interest Ratio of not less than 1.50 to 1.00. "EBIT to Interest Ratio"
shall mean the sum of earnings before interest and taxes divided by interest
expense. This covenant shall be tested on a quarterly basis with the first test
occurring March 31, 2000. Quick Ratio. Borrower shall maintain a Quick Ratio of
not less than 2.00 to 1.00. "Quick Ratio" shall mean the ratio of the sum of
cash plus cash equivalents plus marketable securities plus trade receivables
(minus any bad debt reserves), whether or not evidenced by a promissory note,
plus the current portion of any debt due to Borrower from Borrower's officers,
employees, stockholders, affiliates or subsidiaries, to Current Liabilities.
"Current Liabilities" shall mean all liabilities which are so classified in
accordance with generally accepted accounting principles. This covenant shall be
tested on a quarterly basis with the first test occurring September 30, 1999,
Positive Earnings. Commencing with Borrower's first fiscal quarter ending March
31, 2000 and for each fiscal quarter thereafter, Borrower's earnings before
interest, taxes, depreciation and amortization ("EBITDA") shall be positive.
This covenant shall be tested on a quarterly basis with the first test occurring
March 31, 2000. Limitation on Debt. Borrower shall not, directly or indirectly,
create, incur, assume or become liable for any additional indebtedness, whether
contingent or direct, which totals more than $25,000.00 in the aggregate at any
time, without the express written consent of Bank. Loans and Advances. Borrower
shall not, during any fiscal year, make loans or advances, except in the
ordinary course of business, to
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any person or entity. Dividends. Borrower shall not, during any fiscal year,
declare or pay dividends or make other distributions to shareholders.
FINANCIAL REPORTS. Borrower agrees to the following provision(s) from the date
of this Agreement and until final payment in full of the Obligations, unless
Bank shall otherwise consent in writing: Annual Financial Statements. Borrower
shall deliver to Bank, within 120 days after the close of its fiscal year, draft
audited financial statement and within 150 days after the close of each fiscal
year, audited financial statements reflecting its operations during such fiscal
year, including, without limitation, a balance sheet, profit and loss statement
and statement of cash flows, with supporting schedules; all in reasonable
detail, prepared in conformity with generally accepted accounting principles,
applied on a basis consistent with that of the preceding year. All such
statements shall be examined by an independent certified public accountant
acceptable to Bank. The opinion of such independent certified public accountant
shall not be acceptable to Bank if qualified due to any limitations in scope
imposed by Borrower. Any other qualification of the opinion by the accountant
shall render the acceptability of the financial statements subject to Bank's
approval. Periodic Financial Statements. Borrower shall deliver to Bank
unaudited management-prepared quarterly financial statements, including, without
limitation, a balance sheet, profit and loss statement, and statement of cash
flows, with supporting schedules, as soon as available and in any event within
45 days after the close of each such period; all in reasonable detail. Such
statements shall be certified as to their correctness by a principal financial
officer of Borrower. Accounts Payable Aging. Borrower shall, from time to time
hereafter deliver to Bank monthly within 15 days of the end of each such period,
a detailed aging of payables by total, a summary aging of payables by vendor and
vendor address, and a reconciliation statement. Said aging should also include
the original date of each invoice. Accounts Receivable Aging. Borrower shall,
from time to time hereafter deliver to Bank monthly within 15 days of the end of
each such period, a detailed aging of accounts by total, a summary aging of
accounts by customer and customer address, and a reconciliation statement. Said
aging should also include the original date of each invoice. Compliance
Certificate. Borrower shall furnish to Bank, together with each set of
financial statements described above, compliance certificates signed by the
company's chief financial officer, certifying that (i) none of the covenants in
the loan documents have been breached and (ii) no event has occurred which would
constitute an Event of Default under the loan documents.
BORROWING BASE. "Borrowing Base" means 100% of Assigned Accounts plus 75% of
the net amount of Eligible Accounts, less the amount of any Reserves required by
Bank.
"Assigned Accounts" means time savings accounts and certificates of deposit
maintained in or with Bank and affiliates of Bank.
"Eligible Account" means an account receivable not more than 90 days from the
date of the original invoice that arises in the ordinary course of Borrower's
business and meets the following eligibility requirements: (a) the sale of
goods or services reflected in such account is final and such goods and services
have been delivered or provided and accepted by the account debtor and payment
for such is owing; (b) the invoices comprising an account are not subject to any
claims, returns or disputes of any kind; (c) the account debtor is not
insolvent; (d) the account debtor has
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its principal place of business in the United States; (e) the account debtor is
not an Affiliate of Borrower and is not a supplier to Borrower and the account
is not otherwise exposed to risk of set-off; (f) not more than thirty percent of
the original invoices owing Borrower by the account debtor are more than 90 days
from the date of the original invoice; and (g) the account is not subject to any
lien prior to the lien of Bank.
"Reserves" means such amounts as may be required by Bank, at any time and from
time to time without prior notice to Borrower, which Bank deems to be adequate
to reserve against outstanding letters of credit, outstanding banker's
acceptances, Borrower's obligations to Bank or its affiliates or any guaranties
or other contingent debts of Borrower.
Required Reports. Borrower shall certify to Bank by the 15th day of each month,
the amount of Eligible Accounts as of the first day of each month, on forms
required by Bank, together with all detail and supporting documents requested by
Bank. Such reports shall be certified as to their correctness by the Chief
Financial Officer of Borrower. Bank may at any time and from time to time,
during Borrowers normal business hours, enter upon any business premises of
Borrower and audit Borrower's accounts. Bank's determination of the amount of
Eligible Accounts shall at all times be indisputable and deemed correct.
Borrower, at all times, shall cooperate with Bank by providing Bank information
and access to Borrower's premises and business records and shall be courteous to
Bank's agents.
CONDITIONS PRECEDENT. The obligations of Bank to make the Loan and any advances
pursuant to this Agreement are subject to the following conditions precedent:
Additional Documents. Receipt by Bank of such additional supporting documents
as Bank or its counsel may reasonably request.
CONDITIONS SUBSEQUENT. Borrower shall provide Bank, no later than August 16,
1999, with evidence that it has filed all required reports for 1998 with the
Secretary of State.
IN WITNESS WHEREOF, Borrower, on the day and year first written above, has
caused this Agreement to be executed under seal.
GREENWICH TECHNOLOGY PARTNERS, INC.
Corporate By:_______________________________________
Seal Xxxxxx X. Xxxxx
Chief Financial Officer
TAXPAYER IDENTIFICATION NUMBER(S):
GREENWICH TECHNOLOGY PARTNERS, INC. 00-0000000
FIRST UNION NATIONAL BANK
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By:_______________________________________
Xxxxxx Xxxxxx
Vice President
