Exhibit 10.2
ELEVENTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
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This Eleventh Amendment to Revolving Credit Agreement ("Eleventh
Amendment") is made as of November 30, 2001 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
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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 and Tenth Amendments thereto and a letter
amendment dated as of November 6, 2001 (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.
(i) The definitions of "Borrowing Base" and "Leverage Ratio" in Section
1.1 is hereby amended in its 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 as determined by Agent by
reference to the most recent Borrowing Base Report delivered to Agent, plus:
(a) during the month of December, 2001, $13,000,000;
(b) during the month of January, 2002, $13,000,000;
(c) during the month of February, 2002, $13,000,000;
(d) during the month of March, 2002, $12,000,000;
(e) during the month of April, 2002, $10,000,000;
(f) during the month of May, 2002, $11,000,000; and
(g) during the month of June, 2002, $10,000,000."
"Leverage Ratio. As of the last day of any fiscal quarter, the ratio of
(a) Consolidated Total Funded Debt to (b) Consolidated EBITDA on the last day of
such fiscal quarter multiplied by four."
(ii) The first sentence in Section 2.8.3 is amended in its entirety to
provide as follows:
"The Borrowing Base shall be determined bi-weekly by Agent by
reference to the Borrowing Base Report."
(iii) Section 7.4(h) is amended in its entirety to provide as follows:
"(h) By Wednesday of every other week commencing December 12, 2001, a
Borrowing Base Report setting forth the Borrowing Base as of the end
of the immediately preceding week."
(iv) Section 9 of the Credit Agreement is amended in its entirety to
provide as follows:
"9. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan or any Revolving Credit Note is outstanding or any Bank has any obligation
to make any Revolving Credit Loans:
9.1 Consolidated Total Net Worth. The Borrower will maintain, at all
times, a Consolidated Net Worth in an amount equal to at least $185,000,000.
9.2 Profitable Operations. For the fiscal quarter of the Borrower and
its Subsidiaries ending on December 31, 2001 the Consolidated Net Income of the
Borrower and its Subsidiaries shall not be less than ($500,000), and for each
fiscal quarter thereafter, the Consolidated Net Income of the Borrower and its
Subsidiaries shall not be less than $1.00. For the fiscal quarter ending on
December 31, 2001, the Consolidated Net Income of the Borrower and its
Subsidiaries for such fiscal quarter may be calculated without reference to the
amount of the one-time loss associated with the SPI Sale (provided that such
loss shall not be in excess of $18,000,000).
9.3 Leverage Ratio. For the fiscal quarters ending December 31, 2001,
March 31, 2002 and June 30, 2002, the Borrower will not permit the Leverage
Ratio, as of the last day of such fiscal quarter, to exceed 9.56:1.00, 2.86:1.00
and 2.15:1.00, respectively. For each such quarter, the Leverage Ratio will be
calculated after adding back one-time charges.
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9.4 Minimum Consolidated EBITDA. The Borrower will maintain, as of the
last day of each fiscal quarter of its fiscal year 2002, Consolidated EBITDA as
determined on a quarterly and fiscal year cumulative basis in amounts at least
equal to the following:
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Fiscal Quarter Fiscal Quarter Fiscal Quarter
Ending 12/31/01 Ending 3/31/02 Ending 6/30/02
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For the relevant fiscal
quarter: $1,500,000 $4,800,000 $6,200,000
Cumulative for the 2002 $4,741,000 $9,541,000 $15,741,000
fiscal year
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Notwithstanding the foregoing, for the fiscal quarter ending December 31, 2001
in which the SPI Sale is accounted for, an amount equal to the one-time loss
associated with such SPI Sale (but in no event greater than $18,000,000) shall
be deducted from each of the Consolidated EBITDA target figures set forth above
and for each fiscal quarter thereafter.
9.5 Interest Coverage Ratio. The Borrower will not permit, as of the
last day of the fiscal quarters ending December 31, 2001, March 31, 2002 and
June 30, 2002, the ratio of Consolidated EBITDA to Consolidated Total Interest
Expense for such fiscal quarter, to be less than 1.31:1.00, 4.09:1.00 and
5.06:1.00, respectively.
9.6 Capital Expenditures. The Borrower and its Subsidiaries will not
make in the aggregate Capital Expenditures in excess of the amount set forth
below for the period corresponding thereto:
Period Amount
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7/1/01 to 12/31/01 $2,700,000
7/1/01 to 3/31/02 $3,500,000
7/1/01 to 6/30/02 $4,200,000
Except as otherwise specified, the calculation of all financial covenants set
forth in this ss.9 shall be in accordance with generally accepted accounting
principles."
Section 3. Additional Agreements.
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(a) Borrower shall pay to Agent for its benefit and for the ratable
benefit of Banks a facility fee in the amount of $300,000 on December 28, 2001
if on such date any Bank's Commitment remains outstanding or if the Credit
Agreement has not been repaid in full.
(b) Borrower has notified Agent and Banks that it intends to refinance
the Credit Agreement in full pursuant to a refinancing from new lenders (the
"Refinancing") or pursuant to a financing to be underwritten or placed by
Xxxxxxxx and Company, Inc. (the "Xxxxxxxx Offering"). In connection with the
Refinancing and the Xxxxxxxx Offering Borrower fully and completely shall
achieve each benchmark listed an Exhibit I attached hereto by the date
corresponding to such
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benchmark on Exhibit I and any failure to do so shall constitute an Event of
Default under the Credit Agreement (without any notice or grace whatsoever).
Agent and Banks shall have full and unlimited access to all of Borrower's
information regarding the Refinancing and the Xxxxxxxx Offering.
(c) In addition to all other reporting requirements under the Credit
Agreement, Borrower shall provide Agent and Banks actual and projected cash flow
statements on a weekly basis, monthly income, balance and cash flow statements
and quarterly compliance certificates, all in form and substance satisfactory to
Agent.
(d) Borrower shall deliver to Agent and Banks on or prior to December
15, 2001 a detailed alternative plan satisfactory to Agent and Banks for the
refinancing in full of the Credit Agreement in the event the Refinancing or the
Xxxxxxxx Offering is not successful.
(e) The failure by Borrower to comply with any agreement, covenant or
provision of this Eleventh Amendment shall constitute an Event of Default.
Section 4. Conditions of Effectiveness. This Eleventh Amendment shall
become effective upon satisfactory of the following conditions precedent: Agent
shall have received (i) six (6) copies of this Eleventh Amendment executed by
Borrower and Majority Banks and consented and agreed to by Guarantors pursuant
to the form of amendment set forth as Annex A attached hereto, (ii) for each
Borrower and Guarantor, a list of each state where each company is a registered
organization, (iii) documentation regarding any change of names of any Guarantor
prior to the effective date of the Eleventh Amendment and (iv) such other
certificate, instruments, documents, agreements and opinions of counsel as may
be required by Agent or its counsel, each of which shall be in form and
substance satisfactory to Agent and its counsel. Once effective, this Eleventh
Amendment shall be deemed to satisfy the requirements of Section 2(iv) of the
Tenth Amendment.
Section 5. Effective Date. The effective date of this Eleventh
Amendment shall for all purposes be the date appearing on the first page hereof.
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 Eleventh 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 Eleventh 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 Eleventh 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.
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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. 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 9. Fees, Costs and Expenses. In addition to the foregoing
transaction fee, Borrower agrees to pay on demand all the costs and expenses of
the Agent and the Banks, including all consultant and legal fees and expenses,
including without limitation all reasonable fees and expenses of counsel in
connection with the preparation, execution and delivery of this Eleventh
Amendment and the other documents and instruments to be delivered herewith and
all UCC search and filing fees.
Section 10. Miscellaneous. This Eleventh 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 Eleventh 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 Eleventh 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 11. Facsimile. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Eleventh
Amendment to be duly executed as an instrument under seal as of the date first
above written.
PROVANT, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Executive Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxxx X. Xxxx
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Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx. X. Xxxxxx
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Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
XXXXX FARGO BANK IOWA, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
FLEET NATIONAL BANK, as AGENT
By: /s/ Xxxxx. X. Xxxxxx
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Title: Vice President
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EXHIBIT I
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1. Delivery of a draft disclosure document about Borrower to one or more November 30, 2001
potential lenders and completion of preliminary
solicitation booklet
2. Meet with one or more potential lenders and delivery of booklets to targets December 10, 2001
3. Receipt of expressions of interest or draft documents from potential December 20, 2001
lenders.
4. Closing and repayment in full of any and all amounts due or in connection December 28, 2001
with the Credit Agreement
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