EXHIBIT 10.30
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as
of February 7, 1997 (the "Agreement") by and among (a) LAW COMPANIES GROUP,
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INC., a Georgia corporation (the "Company"), (b) the Persons named on the
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signature pages hereto as "Guarantors", together with all other Persons which
hereafter become Guarantors as provided in Section 5.13 hereof (collectively,
the "Guarantors"), (c) SUNTRUST BANK, ATLANTA, a Georgia banking corporation
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("SunTrust") and NATIONAL BANK OF CANADA, a federal banking corporation
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chartered under the laws of Canada ("Canada") (collectively, the "Banks" and
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individually, a "Bank") and (d) SUNTRUST BANK, ATLANTA, as agent for the Banks
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(in such capacity, the "Agent").
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WITNESSETH:
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WHEREAS, SunTrust and Canada, as assignee of National City Bank,
Kentucky and SouthTrust Bank of Georgia, N.A., previously made certain revolving
credit facilities available to the Company, which facilities were guaranteed by
certain of the Guarantors, pursuant to that certain Revolving Credit and Term
Loan Agreement, dated as of October 8, 1993, as amended and restated by that
certain Amended and Restated Revolving Credit Agreement, dated as of October
11, 1995, as heretofore amended or modified (the "Original Credit Agreement");
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and
WHEREAS, SunTrust previously issued certain letters of credit for the
account of the Company and certain of the Guarantors, and all obligations of the
Company and Guarantors thereunder were guaranteed by the Company and the
Guarantors, pursuant to that certain Amended and Restated Reimbursement and
Guaranty Agreement dated as of October 11, 1995, as heretofore amended or
modified (the "Original Reimbursement Agreement"); and
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WHEREAS, SunTrust, Canada, the Company and such Guarantors desire to
amend and restate the Original Credit Agreement and the Original Reimbursement
Agreement to consolidate the facilities thereunder and to increase revolving
credit and letter of credit facilities thereunder, all as more particularly
evidenced herein;
NOW, THEREFORE, for and in consideration of the sum of $10.00 in hand
paid by the Banks to the Company and the Guarantors, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties
hereto, intending to be legally bound, agree to amend and restate the Original
Credit Agreement and the Original Reimbursement Agreement as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01 Definitions. In addition to the other terms
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defined herein, the following terms used herein shall have the meanings herein
specified (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Account Instructions Agreement" shall mean that certain Account
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Instructions (Automatic Incurrence/Payment of Loans) Agreement, dated as of
the date hereof, between the Company and SunTrust Bank, Atlanta, in the
form of Schedule 1.01(a) hereto.
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"Account Party" shall mean the Company or any Guarantor in whose
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account a Letter of Credit is to be or has been issued.
"Additional Guarantor" shall have the meaning assigned to such
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term in Section 5.13(b)
"Additional Pledgor" shall have the meaning assigned to such term
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in Section 5.13(b).
"Advance" shall mean any advance by a Bank under the Commitments.
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"African Subsidiary" shall mean Xxxx Africa International
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Limited.
"Agent" shall mean SunTrust Bank, Atlanta, as agent for the Banks
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hereunder and under the other Loan Documents, and each successor agent.
"Agent Fee" shall mean the "Agency Fee" as defined in the Fee
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Letter, payable annually in advance to the Agent during the period prior to
the Commitment Termination Date.
"Affiliate" shall mean, with respect to any Person, any other
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Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, such first
Person. A Person shall be deemed to
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control another Person if such first Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" shall mean this Second Amended and Restated Revolving
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Credit Agreement, either as originally executed or as hereafter amended,
restated, renewed, extended, supplemented or otherwise modified from time
to time.
"Applicable Commitment Fee Percentage" shall mean, with respect to
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Commitment Fees through March 31, 1997, one-half of one percent (0.50%) per
annum, and with respect to Commitment Fees during each fiscal quarter
thereafter, the percentage determined for such fiscal quarter from Schedule
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1.01(b) under the column "Commitment Fee Percentage" based upon the
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Company's Senior Debt Coverage Ratio determined as of the end of each
fiscal quarter, with any change to the Applicable Commitment Fee Percentage
to be effective on the first day of the second fiscal quarter thereafter.
By way of example, as of the first day of the second fiscal quarter of the
Company, the Applicable Commitment Fee Percentage shall be calculated based
on the ratio of the Company's Senior Debt Coverage Ratio reported for the
fourth fiscal quarter of the prior fiscal year of the Company.
"Applicable LC Fee Percentage" shall mean, with respect to Letter of
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Credit Fees through March 31, 1997, one and one-quarter percent (1.25%) per
annum, and with respect to Letter of Credit Fees during each fiscal quarter
thereafter, the percentage determined for such fiscal quarter from Schedule
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1.01(b) under the column "Letter of Credit Fee Percentage" based on the
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Company's Senior Debt Coverage Ratio determined as of the end of each
fiscal quarter, with any change to the Applicable LC Fee Percentage to be
effective on the first day of the second fiscal quarter thereafter. By way
of example, as of the first day of the second fiscal quarter of the
Company, the Applicable LC Fee Percentage shall be calculated based on the
ratio of the Company's Senior Debt Coverage Ratio reported for the fourth
fiscal quarter of the prior fiscal year of the Company.
"Application Law" shall mean, anything in Section 11.05
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notwithstanding, (i) all applicable common law and principles of equity and
(ii) all applicable provisions of all (a) constitutions, statutes, rules,
regulations and orders of governmental bodies, (b) Governmental Approvals
and (c) orders, decisions, judgments and decrees of all courts and
arbitrators.
"Applicable Margin" shall mean, with respect to all outstanding
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Advances through March 31, 1997, one percent (1.0%) per annum, and with
respect to all outstanding Advances during each fiscal quarter thereafter,
the percentage determined
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for such fiscal quarter from Schedule 1.01(b) under the column "Advance
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Margin" based on the Company's Senior Debt Coverage Ratio determined as of
the end of each fiscal quarter, with any change to the Applicable Margin to
be effective on the first day of the second fiscal quarter thereafter. By
way of example, as of the first day of the second fiscal quarter of the
Company, the Applicable Margin shall be calculated based upon the ratio of
the Company's Senior Debt Coverage Ratio reported for the fourth fiscal
quarter of the prior fiscal year of the Company.
"Arrangement Fee" shall mean the "Arrangement Fee/Upfront Fee" as
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defined in the Fee Letter, less any portion thereof previously paid by the
Company to SunTrust Capital Markets, Inc. upon the Company's acceptance of
the Commitment Letter.
"Asset Value" shall mean, with respect to any property or asset of the
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Company or any of its Subsidiaries as of any particular date, an amount
equal to the greater of (i) the then book value of such property or asset
as established in accordance with GAAP, and (ii) the then fair market
value of such property or asset as determined in good faith by the board
of directors of the Company or such Subsidiary.
"Assignment Agreement" shall mean an agreement in the form of Exhibit
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A.
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"Availability" shall mean, with respect to any Commitment, at any
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time, the amount by which such Commitment exceeds all Advances made under
such Commitment.
"Avoidance Provisions" shall have the meaning set forth in Section
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10.01(b)(iii) hereof.
"Bankruptcy Code" shall have the meaning set forth in Section
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10.01(b)(i) hereof.
"Bankruptcy Law" shall mean laws governing bankruptcy, suspension of
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payments, reorganization, arrangement, adjustment of debts, relief of
debtors, dissolution, or other similar laws relating to the enforcement of
creditors' rights generally.
"Banks" shall have the meaning set forth in the first paragraph of
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this Agreement.
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"Barclays Agreement" shall mean the Facility Agreement, dated as of
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the date hereof, by and among Barclays Bank PLC, individually, as agent
thereunder and as International Collateral Agent, Xxxx Limited, Xxxx
Holdings Limited and certain of its Subsidiaries, Xxxx Africa International
Limited and certain of its Subsidiaries and the Company, as hereafter
amended, restated, renewed, extended, supplemented or otherwise modified
from time to time, pursuant to which Barclays Bank PLC has made available
the Barclays Revolver and certain other facilities to Xxxx Limited, Xxxx
Holdings Limited and the African Subsidiary.
"Barclays Bank PLC" shall mean Barclays Bank PLC, an English banking
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corporation, any of its local affiliates and their respective successors
and assigns.
"Barclays Guaranties" shall mean, collectively, (1) that certain
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Guaranty Agreement, dated as of the date hereof, executed by the Company,
Law International, Inc, and Xxxx International Holdings, Inc. in favor of
Barclays Bank PLC, and (2) that certain Guaranty Agreement, dated as of the
date hereof, executed by certain other U.S. Subsidiaries of the Company in
favor of Barclays Bank PLC, in each case as hereafter amended, restated,
renewed, extended, supplemented or otherwise modified from time to time.
"Barclays Revolver" shall mean, collectively, (1) the short-term
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revolving loan facility made available by Barclays Bank PLC to Xxxx Limited
under the Barclays Agreement in a principal amount not to exceed (Pounds)
4,474,940, less the Committed Amount of Local Facilities (as defined in
clause (2) below) established by Barclays in favor of the African
Subsidiary, of which short-term revolving loan facility up to (Pounds)
298,329 (or such higher amount as all Banks may agree) may be borrowed by
Xxxx Limited and (2) the local facilities requested by the African
Subsidiary from time to time and established at the discretion of Barclays
in an aggregate principal amount not to exceed (Pounds) 1,551,313 (or its
equivalent in other currencies), less the outstanding obligations of Xxxx
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Limited and Xxxx Holdings Limited to Barclays under the short-term
revolving loan facility described in clause (1) above in excess of (Pounds)
2,923,627 (the "Local Facilities"), as such Barclays Revolver may be
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permanently reduced from time to time, and to the extent provided in
Section 4.1(4) of the Intercreditor Agreement, the Barclays Revolver shall
mean the Replacement Facility (as defined in the Intercreditor Agreement).
"BGI Exposure" shall have the meaning assigned to such term in the
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Intercreditor Agreement.
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"BGI Facility" shall mean the multi-currency guaranty facility made
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available by Barclays Bank PLC to Xxxx Limited under the Barclays Agreement
in a principal amount not to exceed pounds 5,966,587.
"Borrowing" shall mean a borrowing under the Commitments consisting of
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simultaneous Advances by the Banks.
"Borrowing Base" shall mean as at any time the sum of (a) eighty
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percent (80%) of the U.S. Billed Fees Receivable, measured in a manner
reasonably acceptable to the Agent as of the most recently ended month of
the Company as determined from the most recently delivered Borrowing Base
Certificate, plus (b) the lesser of (i) eighty percent (80%) of the U.S.
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Unbilled Work in Process, measured in a manner reasonably acceptable to the
Agent as of the most recently ended month of the Company as determined from
the most recently delivered Borrowing Base Certificate, and (ii)
$12,000,000, plus (c) $2,000,000 at any time during the Company's fiscal
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months of September, October, November and December of 1997.
"Borrowing Base Certificate" shall mean a certificate of the Chief
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Executive Officer, the Chief Financial Officer or Corporate Controller of
the Company in the form of Schedule 5.02(b)(2) delivered pursuant to
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Section 5.02(b)(2) hereof.
"Borrowing Base Reporting Date" shall mean the 15th day of each
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fiscal month of each fiscal year of the Company.
"Business Day" shall mean a day of the year other than Saturday,
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Sunday or any other day on which commercial banks are required to close in
the city in the United States in which each Revolving Credit Bank maintains
its principal place of business, or a day of the year on which commercial
banks are required to close in London, England.
"California Guaranty Supplement" shall mean that certain Amended and
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Restated California Guaranty Supplement, dated as of the date hereof,
executed by Xxxxx Xxxxxxxx & Associates, a California corporation, and Law
Engineering and Environmental Services, Inc., a Georgia corporation, in
favor of the Banks and Barclays Bank PLC.
"Capitalization" shall mean, at any time, the sum of (a) Consolidated
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Net Worth plus (b) Funded Debt.
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"CERCLA" shall mean the Comprehensive Environmental Response
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Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act (42 U.S.C. (S) 9601 et seq.).
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"Change of Control" shall mean any entity or related groups of
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entities shall obtain the beneficial ownership, or the power to vote, more
than 25% of the outstanding securities (of any class or type) of the
Company with the right to vote for the election of the Board of Directors
of the Company.
"Change of Management" shall mean a change in any officers of the
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Company and each of its Subsidiaries listed on Schedule 1.01(c) to a person
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not having equal or better qualifications, financial acumen, management
skills and standing in the industry as such officer has within 90 days
after such officer no longer holds such office.
"Closing Date" shall mean February 7, 1997.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
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time to time, and the regulations promulgated and the rulings issued
thereunder.
"Collateral" shall mean all real and personal property and assets,
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now or hereafter existing, of the Company and its Subsidiaries over which
the Company or such Subsidiary has granted a Lien to the U.S. Collateral
Agent or the International Collateral Agent pursuant to the Security
Documents, and all proceeds and products thereof, provided, however, that
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the term Collateral shall not include cash collateral securing bonds,
guaranties and indemnities under the BGI Facility issued for periods of
five years or longer or with no expiry date.
"Collateral Agent" shall mean the U.S. Collateral Agent or the
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International Collateral Agent, as the case may be.
"Commitment" shall mean, for any Bank at any time, the revolving
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credit facility severally established by such Bank in favor of the Company
pursuant to Section 2.01, including, without duplication, such Bank's Pro
Rata Share of the Letter of Credit Subfacility and, in the case of
SunTrust, the Swing Line, as the same may be increased or decreased from
time to time as a result of any reduction thereof pursuant to Section 2.08,
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any assignment thereof pursuant to Section 11.08, or any amendment
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thereof pursuant to Section 11.02.
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"Commitment Fee" shall have the meaning set forth in Section 2.13(c).
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"Commitment Letter" means that certain Letter Agreement, dated as of
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December 24, 1996, executed by the Banks and Barclays Bank PLC and accepted
and agreed to by the Company and certain of its Subsidiaries.
"Commitment Termination Date" shall have the meaning set forth in
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Section 2.01.
"Committed Amount" shall mean, with respect to any Facility, the
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maximum principal amount of such Facility committed by the Banks or any of
them, including any portion of the Committed Amount of such Facility in
which such Bank has purchased a participation and excluding any portion of
the Committed Amount of such Facility in which such Bank has sold a
participation, as such amount may be reduced from time to time.
"Company Pledge Agreement" shall mean that certain Amended and
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Restated Stock and Notes Pledge Agreement (Borrower), dated as of the date
hereof, executed by the Company in favor of the U.S. Collateral Agent, as
hereafter amended, restated, supplemented or otherwise modified from time
to time.
"Company Security Agreement" shall mean that certain Amended and
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Restated Security Agreement (Borrower), dated as of the date hereof,
executed by the Company in favor of the U.S. Collateral Agent, as hereafter
amended, restated, supplemented or otherwise modified from time to time.
"Company Trademark Security Agreement" shall mean that certain
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Amended and Restated Trademark Security Agreement (Borrower), dated as of
the date hereof, executed by the Company in favor of the U.S. Collateral
Agent, as hereafter amended, restated, supplemented or otherwise modified
from time to time.
"Consolidated EBIT" shall mean, for any fiscal period of the Company,
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an amount equal to the sum of (a) Consolidated Net Income (Loss), plus (b)
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to the extent deducted in determining Consolidated Net Income (Loss), (i)
provisions for taxes based on income of the Company and its Subsidiaries
(unless otherwise noted) determined on a consolidated basis in accordance
with GAAP and (ii) Interest Expense.
"Consolidated Net Income (Loss)" shall mean, for any fiscal period
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of the Company, the net income (or loss) of the Company and its
Subsidiaries (unless otherwise noted) determined on a consolidated basis
for such period (taken as a single accounting period), in accordance with
GAAP.
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"Consolidated Net Worth" shall mean, as of the date of determination,
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the Company's total shareholders' equity, determined in accordance with
GAAP, but measured at the currency exchange rates in effect as of December
31 of the immediately preceding fiscal year, but measured at the currency
exchange rates as in effect as of December 31, 1996.
"Contractual Obligations" of any Person shall mean any provision of
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any security issued by such Person or of any agreement, instrument or
undertaking under which such Person is obligated or by which it or any of
its property is bound.
"Contributing Guarantor" shall have the meaning set forth in Section
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10.01(e) hereof.
"Controlled Disbursements Account" shall mean the controlled
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disbursements account maintained by the Company with SunTrust governed by
the Account Instructions Agreement.
"Default" shall mean any event that, with notice or lapse of time or
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both, would constitute an Event of Default.
"Dollar Equivalent" shall mean, with respect to any monetary amount
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denominated in a currency other than U.S. Dollars, at any time for the
determination thereof, the amount of U.S. Dollars obtained by converting
such foreign currency involved in such computation into U.S. Dollars at the
spot rate for the purchase of U.S. Dollars with the applicable foreign
currency as quoted by the Agent at approximately 11:00 a.m. (Atlanta,
Georgia time) on the day of determination thereof specified herein or, if
the day of determination thereof is not otherwise specified herein, on the
date two Business Days prior to such determination.
"Domestic Interest Coverage Ratio" shall mean, for any fiscal period
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of the Company, the ratio of (a) Consolidated EBIT of the Company and the
U.S. Subsidiaries for such fiscal period to (b) Interest Expense of the
Company and the U.S. Subsidiaries for such fiscal period.
"Domestic Senior Debt Coverage Ratio" shall mean, for any fiscal
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period of the Company, the ratio of (a) Senior Funded Debt of the Company
and the U.S. Subsidiaries as of the last day of such fiscal period to (b)
EBITDA of the Company and the U.S. Subsidiaries for the rolling four-
quarter period ending on the last day of such fiscal period.
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"EBITDA" shall mean, for any period of the Company, an amount equal to
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the sum of (a) Consolidated EBIT, plus (b) depreciation and amortization
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expenses (as determined on a consolidated basis in accordance with GAAP) to
the extent deducted in determining such Consolidated EBIT.
"Enforcement Event" shall have the meaning assigned to such term in
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the Intercreditor Agreement.
"Environmental Laws" shall mean all federal, state, local and foreign
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statutes and codes or regulations, rules or ordinances issued, promulgated,
or approved thereunder, now or hereafter in effect (including, without
limitation, those with respect to asbestos or asbestos containing material
or exposure to asbestos or asbestos containing material), relating to
pollution or protection of the environment and relating to public health
and safety, relating to (i) emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial toxic or
hazardous constituents, substances or wastes, including without limitation,
any Hazardous Substance (as such term is defined under CERCLA), petroleum
including crude oil or any fraction thereof, any petroleum product or other
waste, chemicals or substances regulated by any Environmental Law into the
environment (including without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), or (ii) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of any Hazardous Substance (as such term is defined
under CERCLA), petroleum including crude oil or any fraction thereof, any
petroleum product or other waste, chemicals or substances regulated by any
Environmental Law, and (iii) underground storage tanks and related piping,
and emissions, discharges and releases or threatened releases therefrom,
such Environmental Laws to include, without limitation (i) the Clean Air
Act (42 U.S.C. (S) 7401 et seq.), (ii) the Clean Water Act (33 U.S.C. (S)
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1251 et seq.), (iii) the Resource Conservation and Recovery Act (42 U.S.C.
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(S) 6901 et seq), (iv) the Toxic Substances Control Act (15 U.S.C. (S) 2601
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et seq.) and (v) CERCLA.
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974
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and all rules and regulations promulgated pursuant thereto, as the same may
from time to time be supplemented or amended.
"ERISA Affiliate" shall mean any trade or business (whether
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incorporated or unincorporated) which together with the Company is treated
as a single employer under Section 414(b), (c), (m) or (o) of the Code.
"ESOP" shall mean the Law Companies Group, Inc. Employee Stock
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Ownership Plan to be sponsored by and maintained by the Company, the terms
and
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provisions of which shall have been approved in writing by the Banks in
their reasonable discretion.
"Event of Default" shall have the meaning set forth in Article VIII.
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"Executive Officer" shall mean, collectively, each of the officers of
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the Company and each of its Subsidiaries listed on Schedule 1.01(c) hereto
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and any Person hereafter holding any office or offices which individually
or collectively are assigned substantially similar duties.
"Existing Letters of Credit" shall mean, collectively, the letters of
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credit described on Schedule 1.01(d) which were previously issued by
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SunTrust for the account of the Company or any of its U.S. Subsidiaries
pursuant to the Original Reimbursement Agreement.
"Facilities" shall mean, collectively, the First Tier Facilities and
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the Second Tier Facilities.
"Federal Funds Rate" shall mean, for any period, a fluctuating
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interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of
Atlanta, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fee Letter" means that certain Letter Agreement, dated as of December
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23, 1996, executed by SunTrust Capital Markets, Inc. and SunTrust Bank,
Atlanta and agreed to by the Company, setting forth certain fees payable by
the Company in connection with proposed financing contemplated by the
Commitment Letter.
"Fees" shall mean, collectively, the Arrangement Fee, the Agent's Fee,
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the Commitment Fee and the Letter of Credit Fee.
"First Tier Facilities" shall mean, collectively and without
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duplication, the Commitments, the Barclays Revolver and the BGI Facility.
"Fixed Charge Coverage Ratio" shall mean, for any fiscal period of the
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Company, the ratio of (a)(1) EBITDA for the rolling four-quarter period
ending on the last day of such period, minus (2) capital expenditures
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(determined on a
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consolidated basis in accordance with GAAP) made by the Company and its
Subsidiaries during the rolling four-quarter period ending on the last day
of such period, to the extent permitted by Section 7.09, to (b) Fixed
Charges for the rolling four-quarter period ending on the last day of such
period.
"Fixed Charges" shall mean, for any fiscal period of the Company, (i)
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Interest Expense for such period plus (ii) current maturities of long-term
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indebtedness of the Company and its Subsidiaries determined on a
consolidated basis in accordance with GAAP, plus (iii) taxes paid by the
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Company and its Subsidiaries in cash during such period, determined on a
consolidated basis in accordance with GAAP, plus (iv) any payments made
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during such period by the Company in connection with the Georgetown Steel
Litigation.
"FLECBOA" shall mean the $3,589,000 loan and lease arrangements
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evidenced by that certain Participation Agreement, dated as of November 2,
1994, among Law Engineering and Environmental Services, Inc., formerly
known as Law Environmental, Inc., FLECBOA, Inc., the Company and SouthTrust
Bank of Georgia, N.A. and other related documents executed in connection
therewith, as amended or modified prior to the date hereof.
"401(k) Plan" shall mean, collectively, the Law Companies Group, Inc.
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401(k) Savings Plan sponsored by and maintained by the Company, as in
effect on the date hereof, together with the Law Companies Group, Inc.
Puerto Rico 401(k) Savings Plan sponsored by and maintained by the Company.
"Foreign Corporation States" shall mean the States of Alabama,
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Arkansas, Indiana, Mississippi, New Hampshire, Texas and Vermont.
"Funded Debt" shall mean (i) all indebtedness for borrowed money of
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the Company and its Subsidiaries on a consolidated basis, including,
without limitation, current maturities of indebtedness for borrowed money,
but excluding reimbursement obligations relating to the Letters of Credit
and bonds, guaranties and indemnitees issued under the BGI Facility.
"Funding Guarantor" shall have the meaning set forth in Section
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10.01(e) hereof.
"GAAP" shall mean generally accepted accounting principles set forth
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in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other
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entity as may be approved by a significant segment of the accounting
profession in the United States of America, which are applicable to the
circumstances as of the date of determination.
"Georgetown Steel Litigation" shall mean the obligation of the Company
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and its Subsidiaries under the judgment rendered by the United States
District Court for the District of South Carolina in Georgetown Steel
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Corporation v. Union Carbide Corporation et al.
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"Xxxx Holdings Limited" shall mean Xxxx Holdings Limited, a United
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Kingdom corporation and an indirect Subsidiary of the Company.
"Xxxx Limited" shall mean Xxxx Limited, a United Kingdom corporation
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and an indirect Subsidiary of the Company.
"Governmental Approval" shall mean any order, permission,
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authorization, consent, approval, license, franchise, permit or validation
of, exemption by, registration or filing with, or report or notice to, any
governmental agency or unit, or any public commission, board or authority.
"Guarantor Pledge Agreement" shall mean, collectively, that certain
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Amended and Restated Stock and Notes Pledge Agreement (Guarantors), dated
as of the date hereof, executed by each Guarantor in favor of the U.S.
Collateral Agent, and that certain Membership Interest Pledge Agreement,
dated as of the date hereof, executed by Law Engineering and Environmental
Services, Inc. in favor of the U.S. Collateral Agent, in each case as
hereafter amended, restated, supplemented or otherwise modified from time
to time.
"Guarantors" shall have the meaning set forth in the first paragraph
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of this Agreement, and "Guarantor" shall mean any of the Guarantors.
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"Guarantor Security Agreement" shall mean that certain Amended and
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Restated Security Agreement (Guarantors), dated as of the date hereof,
executed by each Guarantor in favor of the U.S. Collateral Agent, as
hereafter amended, restated, supplemented or otherwise modified from time
to time.
"Guarantor Trademark Security Agreement" shall mean that certain
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Amended and Restated Trademark Security Agreement (Guarantors), dated as of
the date hereof, executed by each Guarantor in favor of the U.S. Collateral
Agent, as hereafter amended, restated, supplemented or otherwise modified
from time to time.
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"Guaranty" shall have the meaning set forth in Section 10.01(a).
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"Guaranty Obligations" shall have the meaning set forth in Section
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10.01(a).
"HKS" shall xxxx Xxxx Xxxxxx Xxxxx Law Xxxx (Pty) Limited, a South
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African company.
"HKS Synthetic Stock" shall mean the synthetic stock issued by HKS
-------------------
Trust and remaining outstanding as of the Closing Date which tracks the
value of the common stock of the Company.
"HKS Trust" shall mean HKS Law Xxxx Share Trust (Pty) Limited, a
---------
South African trust.
"Indebtedness" shall mean (i) indebtedness for borrowed money or for
------------
the deferred purchase price of property or services (other than trade
accounts payable on customary terms in the ordinary course of business),
(ii) financial obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) financial obligations as lessee under leases
which shall have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, (iv) financial
obligations as the issuer of capital stock redeemable in whole or in part
at the option of any Person other than such issuer, at a fixed and
determinable date or upon the occurrence of an event or condition not
solely within the control of such issuer, (v) all obligations (contingent
or otherwise) with respect to interest rate and currency leasing
agreements, (vi) reimbursement obligations (contingent or otherwise) with
respect to amounts under letters or credit, bankers acceptances and similar
instruments, (vii) financial obligations under purchase money mortgages,
(viii) financial obligations under asset securitization vehicles, (ix)
conditional sale contracts and similar title retention instruments, and (x)
obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
financial obligations of others of the kinds referred to in clauses (i)
through (ix) above.
"Intercompany Note" shall mean (1) a promissory note in the form of
-----------------
Exhibit B-1 hereto, executed by the Company in favor of any of its U.S.
-----------
Subsidiaries evidencing intercompany indebtedness and expressly
subordinated to the Indebtedness owed to the Banks and Barclays, (2) a
promissory note in the form of Exhibit B-2 hereto, executed by a U.S.
-----------
Subsidiary in favor of the Company or a promissory note in the form of
Exhibit B-3 hereto, executed by a U.S. Subsidiary in favor of another U.S.
-----------
Subsidiary, in each case evidencing intercompany indebtedness
-14-
and secured by a second priority lien (subordinated to the lien of the U.S.
Collateral Agent) on the accounts receivable, work in progress, inventory,
equipment, general intangibles and other personal property assets of the
Person executing such promissory note, together with UCC-1 financing
statements executed by the borrower under such promissory note as debtor
and the lender under such promissory note as secured party and assigned by
the lender under such promissory note to the U.S. Collateral Agent and (3)
a promissory note in the form of Exhibit B-4 hereto, executed by an
-----------
International Subsidiary in favor of the Company or a promissory note in
the form of Exhibit B-5 hereto, executed by International Subsidiary in
-----------
favor of any Domestic Subsidiary of the Company, in each case evidencing
unsecured intercompany indebtedness.
"Intercreditor Agreement" shall mean that certain Intercreditor
-----------------------
Agreement, dated as of the date hereof, among the Banks and Barclays Bank
PLC, and acknowledged and agreed to by the Company and certain of its
Subsidiaries, as hereafter amended, restated, renewed, extended,
supplemented or otherwise modified from time to time.
"Intercreditor Agreement Agent" shall mean SunTrust and its
-----------------------------
successors and assigns, as agent for the Banks, Barclays Bank PLC, the U.S.
Collateral Agent and the International Collateral Agent under the
Intercreditor Agreement.
"Interest Expense" shall mean, for any fiscal period of the Company,
----------------
total interest expense (including, without limitation, interest expense
attributable to capitalized leases in accordance with generally accepted
accounting principles) of the Company and its Subsidiaries (unless
otherwise noted), on a consolidated basis, for such period.
"International Collateral Agent" shall mean Barclays Bank PLC and its
------------------------------
successors and assigns, as collateral agent and trustee for the benefit of
Barclays Bank PLC under the International Security Documents.
"International Pledgors" shall mean, collectively, each of the
----------------------
International Subsidiaries executing any of the International Security
Documents.
"International Security Documents" shall mean, collectively, all
--------------------------------
Guaranties and Debentures, Security Agreements, Share Charges,
Hypothecation Agreements and all other documents and instruments listed in
Part B(II) of Exhibit B to the Intercreditor Agreement, as amended,
restated, supplemented or otherwise modified from time to time.
-15-
"International Subsidiary" shall mean any Subsidiary of the Company
------------------------
incorporated or otherwise organized in a country or state other than the
United States.
"Investment" shall mean, when used with respect to any Person, any
----------
direct or indirect advance, loan or other extension of credit (other than
the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital
stock, partnership interests, bonds, notes, debentures or other securities
issued by any other Person.
"Judgement Currency" shall have the meaning assigned to such term in
------------------
Section 11.10(b).
"Judgment Currency Conversion Date" shall have the meaning assigned
---------------------------------
to such term in Section 11.10(b).
"Law Companies Group, Ltd." shall mean Law Companies Group, Ltd. a
------------------------
Jersey corporation and wholly owned subsidiary of Xxxx Limited.
"Letter of Credit Application." shall mean an "Application and
----------------------------
Agreement for Irrevocable Standby Letter of Credit" duly executed and
delivered by the Company or any of its Subsidiaries substantially in the
form of Exhibit C attached hereto, including, without limitation, any such
---------
application and agreement executed and delivered prior to the date of this
Agreement in respect of any Existing Letter of Credit.
"Letter of Credit Exposure" shall mean the Letter of Credit
-------------------------
Obligations, less the aggregate amount of cash collateral securing the
Letters of Credit in a manner satisfactory to the Banks.
"Letter of Credit Fee" shall have the meaning set forth in Section
-------------------- -------
2.13(d).
-------
"Letter of Credit Obligations" shall mean, with respect to Letters of
----------------------------
Credit, as at any date of determination, the sum of (a) the maximum
aggregate amount which at such date of determination is available to be
drawn by the beneficiaries thereof (assuming the conditions for drawing
thereunder have been met) under all Letters of Credit then outstanding,
plus (b) the aggregate amount of all drawings under Letters of Credit
----
honored by the Agent not theretofore reimbursed by the Company.
-16-
"Letter of Credit Subfacility" shall mean the $5,000,000 letter of credit
----------------------------
facility established by the Banks pursuant to which the Agent will issue Letters
of Credit for the account of an Account Party pursuant to Sections 2.04 and 2.05
hereof.
"Letters of Credit" shall mean the Existing Letters of Credit and any other
-----------------
letters of credit issued pursuant to Article II hereof after the Closing Date by
----------
the Agent for the account of the Company pursuant to the Commitments.
"Lex Insurance" shall mean, collectively, Lex International Insurance
-------------
Company, Limited and Carriber Insurance Company Limited, each a Bermuda
corporation.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
----
lien or charge of any kind or description and shall include, without limitation,
any agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof including any lease or
similar arrangement with a public authority executed in connection with the
issuance of industrial development revenue bonds or pollution control revenue
bonds, and the filing of or agreement to give any financing statement under the
Uniform Commercial Code of any jurisdiction.
"Loan Documents" shall mean this Agreement, each Exhibit and Schedule to
--------------
this Agreement, the Notes, all Letter of Credit Applications, the Intercreditor
Agreement, the U.S. Security Documents, the Supplemental Documents hereafter
executed and delivered to the Banks and the Agent and each other document,
instrument, certificate and opinion executed and delivered in connection with
the foregoing, each as amended, restated, supplemented or otherwise modified
from time to time as provided in Section 11.02.
"Material U.S. Subsidiaries" shall mean, collectively, Ensite, Inc., Xxxx
--------------------------
International Holdings, Inc., Law Engineering and Environmental Services, Inc.,
Law Environmental Consultants, Inc., Law International, Inc,. Xxxxx Xxxxxxxx and
Associates, together with each other U.S. Subsidiary of the Company now or
hereafter existing which either (1) has assets comprising five percent (5%) or
more of the assets of the Company and its Subsidiaries, taken as a whole or (2)
has revenues comprising five percent (5%) or more of the revenues of the Company
and its Subsidiaries, taken as a whole.
"Materially Adverse Effect" shall mean a materially adverse change in the
-------------------------
operations, business, property or assets of, or in the condition (financial or
otherwise) or prospects of, the Company and its Subsidiaries, taken as a whole.
-17-
"Maximum Permissible Rate" shall mean, with resect to interest
------------------------
payable on any amount, the rate of interest on such amount that, if
exceeded, could, under Applicable Law, result in (i) civil or criminal
penalties being imposed on any Bank or (ii) any Bank being unable to
enforce payment of (or if collected, to retain) all or part of such amount
to interest payable thereon.
"Mortgaged Property" shall mean, collectively, all parcels of real
------------------
property owned or leased by the Company or any of its Subsidiaries which is
subject to a Mortgage.
"Mortgages" shall mean, collectively, the North Carolina Mortgage,
---------
together with all of the mortgages, deeds of trust or deeds to secure debt
hereafter executed in favor of the U.S. Collateral Agent by the Company or
any U.S. Subsidiary, including without limitation, (when executed and
delivered) the deed of trust to be executed by Law Engineering and
Environmental Services, Inc. for the benefit of the U.S. Collateral Agent
with respect to the real property located in Escambia County, Florida now
securing FLECBOA, as the same may be hereafter amended, restated, renewed,
extended, supplemented or otherwise modified from time to time.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA.
"Net Fees" shall mean, for the Company and its Subsidiaries on a
--------
consolidated basis, gross fees less costs related to subcontracts.
----
"Net Fees Budgeted" means, with respect to any fiscal year of the
-----------------
Company, the Net Fees reasonably budgeted by the Company and its
Subsidiaries for such fiscal year, the amount of which shall be reasonably
satisfactory to the Required Banks. If no Bank objects to such budgeted
fees within 45 days of receipt by it of the annual budget required to be
delivered pursuant to Section 5.02(d), such budget shall be deemed
satisfactory to the Required Banks.
"Net Issuance Proceeds" shall mean the net cash proceeds received by
---------------------
the Company or any of its Subsidiaries upon the issuance by the Company of
any of its capital stock to any Person.
"Net Redemption Costs" shall mean all cash, notes and other
--------------------
consideration paid by the Company or any of its Subsidiaries for the
purchase or redemption of shares of capital stock of the Company.
-18-
"Nonpayment Default" shall have the meaning assigned to such term in
------------------
the Intercreditor Agreement.
"North Carolina Mortgage" shall mean that certain Amended and
-----------------------
Restated Revolving Credit Deed of Trust and Security Agreement, dated as of
the date hereof, executed by the Company in favor of Xxxxx X. Xxxxxx as
trustee for the benefit of the U.S. Collateral Agent with respect to the
Mortgaged Property located in North Carolina, as hereafter
amended, restated, renewed, extended, supplemented or otherwise modified
from time to time.
"Note" shall mean a promissory note of the Company payable to the
----
order of any Bank, in substantially the form of Exhibit D hereto,
---------
evidencing the maximum aggregate principal indebtedness of the Company to
such Bank under such Bank's Commitment, either as originally executed or as
it may be from time to time supplemented, modified, amended, renewed or
extended.
"Notice of Borrowing" shall have the meaning set forth in Section
-------------------
2.02 hereof.
"Obligations" shall mean all amounts owning to the Agent or any Bank
-----------
pursuant to the terms of this Agreement or any other Loan Document,
including without limitation, all Advances (including all principal and
interest payments due thereunder), all Letter of Credit Obligations, Fees,
expenses, indemnification and reimbursement payments, indebtedness,
liabilities, and obligations of the Company and the Guarantors, covenants
and duties of the Company to the Banks, the Agent and the U.S. Collateral
Agent of every kind, nature and description, direct or indirect, absolute
or contingent, due or not due, in contract or tort, liquidated or
unliquidated, arising under this Agreement or under the other Loan
Documents, by operation of law or otherwise, now existing or hereafter
arising or whether or not for the payment of money or the performance or
the nonperformance of any act, including, but not limited to, all debts,
liabilities and obligations owning by the Company to others which the Banks
may have obtained by assignment or otherwise, and all damages which the
Company may owe to the Banks, the Agent and the U.S. Collateral Agent by
reason of any breach by the Company of any representation, warranty,
covenant, agreement or other provision of this Agreement or of any other
Loan Document.
"Original Credit Agreement" shall have the meaning set forth in the
-------------------------
first recital clause to this Agreement.
"Original Reimbursement Agreement" shall have the meaning set forth
--------------------------------
in the first recital clause to this Agreement.
-19-
"Other Claim" shall have the meaning set forth in Section 5.06 hereof.
-----------
"Other Debtor Relief Law" shall have the meaning set forth in Section
-----------------------
10.01(b)(iii) hereof.
"Partially Owned Subsidiaries" shall mean, collectively, Law/Xxxxx,
----------------------------
Inc., a California corporation, Envirosource Incorporated, a Georgia
corporation, and Law/Spear, LLC, a Georgia limited liability company.
"Payment Default" shall have the meaning assigned to such term in the
---------------
Intercreditor Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
----
successor thereto.
"Permitted Preferred Stock" shall mean preferred stock of the Company
-------------------------
which either (1) has a divided rate of no more than 8% per annum and does
not require any return of capital or equity prior to May 1, 2000 or (2) is
on terms and conditions to which the Banks have otherwise given their prior
written consent.
"Person" shall mean an individual, corporation, partnership, trust or
------
unincorporated organization, a government or any agency or political
subdivision thereof.
"Petermuller Subsidiaries" shall mean, collectively, Xxxx Petermuller
-----------------------
& Partners (Guernsey) Limited, a Guernsey corporation, and Xxxx Petermuller
& Partners (Cyprus) Limited, a Cypriot corporation.
"Plan" shall mean any employee benefit plan, program, arrangement,
----
practice or contact, maintained by or on behalf of the Company or an ERISA
Affiliate, which provides benefits or compensation to or on behalf of
employees or former employees, whether formal or informal, whether or not
written, including but not limited to the following types of plans:
(i) Executive Arrangements - any bonus, incentive compensation,
----------------------
stock option, deferred compensation, commission, severance, "golden
parachute", "rabbi trust", or other executive compensation plan,
program, contract, arrangement or practice;
(ii) ERISA Plans - any "employee benefit plan" as defined in
-----------
ERISA, including but not limited to, any defined benefit pension plan,
profit
-20-
sharing plan, money purchase pension plan, savings or thrift plan,
stock bonus plan, employee stock ownership plan, Multiemployer Plan,
or any plan, fund, program, arrangement or practice providing for
medical (including post-retirement medical), hospitalization,
accident, sickness, disability, or life insurance benefits;
(iii) Other Employee Fringe Benefits - any stock purchase,
------------------------------
vacation, scholarship, day care, prepaid legal services, severance pay
or other fringe benefit plan, program, arrangement, contract or
practice.
"Prime Rate" shall mean the greater of (a) the per annum rate of
----------
interest designated from time to time by the Agent to be its prime rate, as
in effect from time to time, or (b) a per annum rate equal to the Federal
Funds Rate, as in effect from time to time, plus one-half of one percent
(0.50%), with any change in the rate of interest resulting from a change in
the Prime Rate or the Federal Funds Rate to be effective as of the opening
of business of the day of such change. The prime rate designated from time
to time by the Agent is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. The Agent may
make commercial loans or other loans at rate of interest at, above or below
the prime rate designated from time to time by the Agent.
"Pro Rata Share" shall mean, for any Bank, with respect to the
--------------
Facilities (whether one or more), the proportion expressed as a percentage
equal to (1) the sum of such Bank's portion of the Committed Amounts of
such Facilities (including, without duplication, any portion of the
Committed Amounts of such Facilities in which such Bank has purchased a
participation and excluding, without duplication, any portion of the
Committed Amounts of such Facilities in which such Bank has sold a
participation), divided by (2) the sum of the Committed Amounts of such
Facilities; provided, however, that after the occurrence of a Sale Event or
-------- -------
an Enforcement Event, unless otherwise provided in the Intercreditor
Agreement, the Committed Amount of the BGI Facility for purposes of this
definition of Pro Rata Share shall be deemed to be the BGI Exposure
immediately prior to the Sale Event or on the date of the Enforcement
Event, respectively, rather than the Committed Amount of the BGI Facility.
"Regulation U" shall mean Regulation U of the Board of Governors of
------------
the Federal Reserve System, as in effect from time to time, and any
Regulation successor thereto.
-21-
"Regulation X" shall mean Regulation X of the Board of Governors of
------------
the Federal Reserve System, as in effect from time to time, and any
regulation successor thereto.
"Required Banks" shall mean Banks and Barclays Bank PLC whose combined
--------------
Pro Rata Shares as of the Closing Date of the First Tier Facilities are at
least seventy-two percent (72%) of the Committed Amounts of such First Tier
Facilities.
"Sale Event" shall have the meaning assigned to such term in the
----------
Intercreditor Agreement.
"Second Amendment to SunTrust Interest Rate Swap Agreement" shall mean
---------------------------------------------------------
that certain Second Amendment to Master Agreement, dated as of the date
hereof, between SunTrust and the Company.
"Second Tier Facilities" shall have the meaning assigned to such term
----------------------
in the Intercreditor Agreement.
"Security Documents" shall mean, collectively, the U.S. Security
------------------
Documents and the International Security Documents.
"Senior Debt Coverage Ratio" shall mean, for any fiscal period of the
--------------------------
Company, the ratio of (a) Senior Funded Debt as of the last day of such
fiscal period to (b) EBITDA for the rolling four-quarter period ending on
the last day of such fiscal period.
"Senior Debt Leverage Ratio" shall mean, for any fiscal period of the
--------------------------
Company, the ratio of (a) Senior Funded Debt as of the last day of such
fiscal period to (b) Capitalization as of the last day of such fiscal
period.
"Senior Funded Debt" shall mean, at any time, (a) Funded Debt minus
------------------- -----
(b) Subordinated Indebtedness, minus (c) $3,589,000 for the fiscal quarter
-----
of the Company ending March 31, 1997 if and only if the Company refinances
FLECBOA pursuant to Section 5.18 hereof on or prior to March 31, 1997.
"Shareholder Notes" shall mean all promissory notes now or hereafter
-----------------
issued by the Company to any shareholder in connection with the repurchase
of such shareholder's common stock of the Company or issued by Law
Companies Group Limited or HKS in connection with the repurchase of any
synthetic stock issued by Law Companies Group Limited or HKS.
-22-
"Subordinated Indebtedness" shall mean any Indebtedness of the Company
-------------------------
or any "Obligor" as defined under the Barclays Agreement that is
Subordinated in certain instances in right of payment to the prior payment
in full in cash of the Obligations and the "Barclays Obligations" as
defined in the Intercreditor Agreement on terms and conditions satisfactory
to the Required Banks, including, without limitation, those Intercompany
Notes executed by the Company and the Shareholder Notes.
"Subsidiary" of any Person shall mean any corporation, partnership or
----------
other Person of which a majority of all the outstanding capital stock
(including director's qualifying shares) or other securities or ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions is, at the time as
of which any such determination is being made, directly or indirectly owned
by such Person, or by one or more of the Subsidiaries of such Person, and
which corporation, partnership or other Person is consolidated with such
Person for financial reporting purposes. Unless otherwise specified,
"Subsidiaries" and "Subsidiary" shall mean the Subsidiaries and a
Subsidiary, respectively, of the Company.
"SunTrust Interest Rate Contracts" shall mean all interest rate swap
--------------------------------
agreements, interest rate cap agreements, interest rates collar agreements,
interest rate insurance and other agreements and arrangements designed to
provide protection against fluctuations in interest rates in each case
between the Company and SunTrust Bank, Atlanta, including, without
limitation, the SunTrust Interest Rate Swap Agreement, together with all
interest rate swap confirmations made pursuant thereto, in each case as the
same may be from time to time supplemented, modified, amended, renewed or
extended.
"SunTrust Interest Rate Swap Agreement" shall mean the Master
-------------------------------------
Agreement, dated as of October 8, 1993, between SunTrust and the Company,
as amended by the First Amendment to Master Agreement, dated as of October
11, 1995, between SunTrust and the Company, and by the Second Amendment to
SunTrust Interest Rate Swap Agreement and as further amended, restated,
supplemented or otherwise modified from time to time.
"Swap Guaranty" shall mean that certain Guaranty Agreement, dated as
-------------
of the date hereof, executed by the Guarantors in favor of SunTrust,
pursuant to which the Guarantors have guaranteed the obligations of the
Company under the SunTrust Interest Rate Swap Agreement.
"Swing Line" shall have the meaning assigned to such term in Section
----------
2.03.
-23-
"Supplemental Documents" shall mean, collectively, all documents
----------------------
described on Schedule 5.13 hereto.
-------------
"Tax" shall mean, with respect to any person or entity, any federal,
---
state or foreign tax, assessment, customs duties, or other governmental
charge, levy or assessment (including any withholding tax) upon such person
or entity or upon such person's or entity's assets, revenues, income or
profits, other than income and franchise taxes imposed upon any Bank by the
jurisdictions (or any political subdivision thereof) in which such Bank has
its principal office or office from which its Advances are made, or in
which such Bank is incorporated.
"United States" or "U.S." means the United States of America, its
------------- ----
fifty (50) States and the District of Columbia.
"U.S. Billed Fees Receivable" shall mean accounts receivable of the
---------------------------
Company and its U.S. Subsidiaries, on a consolidated basis, for which a
xxxx or invoice has been issued to the account debtor and which is not more
than 90 days delinquent past the date due as stated on such xxxx or
invoice.
"U.S. Collateral Agent" shall mean SunTrust and its successors and
---------------------
assigns, as collateral agent and trustee for the benefit of the Banks and
Barclays Bank PLC under the U.S. Security Documents.
"U.S.Dollar" "Dollar" and "$" shall mean lawful money of the United
---------- ------ -
States of America.
"U.S. Security Documents" shall mean, collectively, the Mortgage, the
-----------------------
Company Pledge Agreement, the Company Security Agreement, the Company
Trademark Security Agreement, the Guarantor Pledge Agreement, the Guarantor
Security Agreement, the Guarantor Trademarks Security Agreement, the U.S.
Share Charges, all UCC financing statements and fixture filings naming the
Company or any of its Subsidiaries as debtor and the U.S. Collateral Agent
as secured party, all stock certificates evidencing shares of stock pledge
to the U.S. Collateral Agent, together with undated stock powers or other
appropriate instruments of transfer executed in blank, all filings in the
U.S. Patent and Trademark Office which are required to be made under the
Loan Documents and all Intercompany Notes pledged to the U.S. Collateral
Agent, together with appropriate instruments of transfer executed in blank.
"U.S. Share Charges" shall mean, collectively, all Charges over
------------------
Shares, Deeds of Rectification, Security Agreements, Pledges of Shares,
Pledge Agreements and all other documents and instruments listed in Part
B(I) of Exhibit B to the Intercreditor
-24-
Agreement, as amended, restated, supplemented or otherwise modified from
time to time.
"U.S. Subsidiary" shall mean any Subsidiary of the Company that is
---------------
incorporated or otherwise organized in the United States.
"U.S. Unbilled Work in Process" shall mean work in process of the
-----------------------------
Company and its U.S. Subsidiaries (excluding the Partially Owned
Subsidiaries), on a consolidated basis, performed under a contract or
agreement and for which no xxxx or invoice has been issued, including,
without limitation, any payments that have been received prior to the
completion of the related work in process and deposited into an
identifiable account, with amounts to be drawn down from such account as
work is performed and which is not more than 60 days past the date the
revenue related to such work was recognized.
SECTION 1.02. Calculations; Accounting Terms. Calculations of all
------------------------------
financial data herein shall be on a consolidated basis for the Company and all
Subsidiaries; and all accounting terms used herein shall, unless otherwise
expressly indicated, be in reference to the Company and its Subsidiaries, on a
consolidated basis (excluding the Partially Owned Subsidiaries), which may be
accounted for in accordance with the entity investment method to the extent such
method is in accordance with GAAP), and shall have the meanings ascribed thereto
under and be interpreted in accordance with GAAP. All calculations and
determinations under Article VII shall be made in accordance with accounting
principles consistent with those followed in the preparation of the annual or
interim financial statements, as applicable, referred to in Section 5.02.
SECTION 1.03. Other Definitional Provisions.
-----------------------------
(a) Except as otherwise specified herein, all references herein (A)
to any Person, other than the Company or any Guarantor, shall be deemed to
include such Person's successors, transferees and assignees, (B) to the Company
or any Guarantor shall be deemed to include such Person's successors, (C) to any
Applicable Law specifically defined or referred to herein shall be deemed
references to such Applicable Law as the same may be amended or supplemented
from time to time, and (D) to any contract defined or referred to herein shall
be deemed references to such contract (and, in the case of any instrument, any
other instrument issued in substitution therefor) as the terms thereof may have
been or may be amended, supplemented, waived or otherwise modified from time to
time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and "Section", "Subsection",
"Schedule" and "Exhibit" shall
-25-
refer to Sections and Subsections of, and Schedules and Exhibits to, this
Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, and the singular number includes the plural, and vice
versa.
(d) All terms defined in this Agreement shall have the defined
meanings when used in any Note or, except as otherwise expressly stated therein,
any certificate, opinion or other Loan Document.
SECTION 1.04. Captions. Article and Section captions in this Agreement
--------
are included for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
ARTICLE II
AMOUNT AND TERMS OF LOANS AND LETTER OF CREDIT
----------------------------------------------
SECTION 2.01. Commitments and Notes. Subject to and upon the terms and
---------------------
conditions set forth in this Agreement, each of the Banks severally establishes
until February 6, 1998, unless otherwise extended pursuant to Section 2.16 below
(February 6, 1998, or such later date as the Commitments have been extended
pursuant to Section 2.16, is hereinafter referred to as the "Commitment
----------
Termination Date") a revolving credit facility in favor of the Company in
----------------
aggregate principal at any one time outstanding not to exceed the sum set forth
opposite such Bank's name below, as the same may be reduced from time to time
pursuant to the terms hereof:
SunTrust Bank, Atlanta $20,000,000 50%
National Bank of Canada $20,000,000 50%
TOTAL: $40,000,000 100%
===
Within the limits of the Commitments, the Company may borrow, repay and reborrow
under the terms of this Agreement; provided, however, that (i) the aggregate
-------- -------
principal amount of each Borrowing shall not be less than $250,000 and shall be
in integral multiples of $50,000, (ii) the Company may neither borrow nor
reborrow should there exist a Default or an Event of Default and (iii) the
aggregate outstanding amount of Advances after giving effect to each Borrowing
plus the Letter of Credit Exposure shall not exceed the lesser of (A) Committed
Amount of the Commitments and (B) the Borrowing Base. Borrowings under the
-26-
Commitments shall be made through simultaneous Advances by the Banks, and the
amount of each such Borrowing shall be prorated among such Banks based on the
percentages set forth above. All Advances by each Bank shall be evidenced by a
single Note payable to such Bank in the form of Exhibit D attached hereto with
---------
appropriate insertions. Each Note shall be dated the date hereof, shall be
payable to the order of the respective Bank in a principal amount equal to the
amount set forth opposite such Bank's name above, shall bear interest as
hereinafter provided and shall mature on the Commitment Termination Date or
sooner should the principal and accrued interest thereon be declared immediately
due and payable as provided for hereinafter. No Bank shall have any obligation
to advance funds in excess of an amount equal to the percentage set forth
opposite such Bank's name above multiplied by the lesser of (1)(A) the Committed
Amount of the Commitments, less (B) the Letter of Credit Exposure, and (2)(A)
----
the Borrowing Base, less (B) the Letter of Credit Exposure.
----
SECTION 2.02. Method of Borrowing Under the Commitments. (a) The
-----------------------------------------
Company shall give the Agent written or telephonic notice (promptly confirmed in
writing) of any requested Borrowing under the Commitments (a "Notice of
---------
Borrowing") specifying (i) the amount of the Borrowing, and (ii) the date the
---------
proposed Borrowing is to be made (which shall be a Business Day). Each Notice of
Borrowing shall be given to the Agent not later than 11:00 a.m. (Atlanta,
Georgia time) on the date of such requested Borrowing. The Agent shall be
entitled to rely on any telephonic Notice of Borrowing which it believes in good
faith to have been given by a duly authorized officer or employee of the
Company, and any Advances made by the Banks based on such telephonic notice
shall, when deposited by the Agent to the Company's Account No. 88-00000000 at
SunTrust be Advances for all purposes hereunder.
(b) In addition, the Company may borrow through the Controlled
Disbursement Account and shall be deemed to have given the Agent a Notice of
Borrowing on each Business Day for which any funds in the Controlled
Disbursements Account are insufficient to cover the checks, drafts and other
items presented against the Controlled Disbursements Account, measured no later
than 11:00 a.m on such Business Day, in which case (i) the amount of the
Borrowing shall be the amount required in addition to any funds already in the
Controlled Disbursements Account to cover in full such checks, drafts and other
items presented against the Controlled Disbursements Account and (ii) the
Borrowing shall be made on such Business Day.
(c) Upon receipt of a Notice of Borrowing from the Company, the Agent
shall notify the Banks by telephone, which notice shall be promptly confirmed in
writing (including by telecopier) by the Agent to such Banks, of such Notice of
Borrowing and of each such Bank's pro rata portion of the requested Borrowing.
--- ----
Not later than 1:00 p.m. (Atlanta, Georgia time) on the date specified for the
Borrowing in the Notice of Borrowing and in the notice to such Bank provided by
the Agent, each Bank shall promptly make its
-27-
portion of the Borrowing available to the Agent in immediately available funds,
and the Agent shall make available to the Company the amount so received by the
Agent from the Banks not later than 2:00 p.m. (Atlanta, Georgia time) on such
date. In the event any Bank shall fail to make any Advance available to the
Agent in immediately available funds by 1:00 p.m. (Atlanta, Georgia time) on the
date specified, and provided no Default or Event of Default shall have occurred
and be continuing, the Agent may advance such Bank's portion of the Borrowing on
behalf of such Bank, in which event such Bank shall promptly reimburse the Agent
for the amount thereof plus (i) if the amount of such Bank's Advance is
reimbursed to the Agent on or prior to the calendar day next
succeeding the date of the Borrowing, interest on such amount at the rate equal
to the Federal Funds Rate, or (ii) if the amount of such Bank's Advance is
reimbursed to the Agent after the calendar day next succeeding the day of the
Borrowing, interest on such amount at the Prime Rate. The amount of interest
payable as a result of any Bank's failure to make any Advance available shall be
calculated on the basis of a year of 360 days and paid for the actual number of
days such failure has continued (including the date of payment).
SECTION 2.03. Swingline Subfacility. (a) Notwithstanding anything
---------------------
contained herein to the contrary, SunTrust hereby establishes a subfacility
within its Commitment of up to an aggregate of $1,000,000 (the "Swing Line"),
and Borrowings under the Swing Line shall be made by the Company through the
Controlled Disbursement Account. Sections 3.01 and 3.02 shall apply equally to
Borrowings made through the Swing Line and Borrowings requested or made through
Section 2.02. The aggregate amount of all Borrowings under the Swingline
Facility shall not at any time exceed $1,000,000, and to the extent any
Borrowing under the Swingline Facility would cause such a result after giving
effect thereto, the Company shall be required to request such Borrowing under
Section 2.02(a) hereof.
(b) Each Borrowing under the Swing Line shall deemed to be made under
SunTrust's Commitment to the extent of any Availability thereunder on the date
such Borrowing is made.
(c) The Company shall have the right to prepay Borrowings made under
the Swing Line, in whole at any time or in part from time to time, without
premium or penalty (i) in accordance with the terms of the Account Instructions
Agreement, (ii) by giving notice to SunTrust at least one Business Day prior to
the date of such prepayment, or (iii) with the proceeds of a Borrowing under the
Commitments in accordance with the provisions set forth herein. The Company
irrevocably authorizes the Agent, at the sole discretion of the Agent, from time
to time and at any time, to request a Borrowing under the Commitments (to the
extent of Availability thereunder) in the name of the Company in an amount
sufficient to prepay in whole or in part outstanding principal amount of
Borrowings made under the
-28-
Swing Line, and the Banks hereby agree to fund such Borrowing as if it were
requested pursuant to Section 2.02 hereof.
SECTION 2.04. Letter of Credit Subfacility. Subject to, and upon the
----------------------------
terms and conditions set forth herein, the Company may request, in accordance
with the provisions of this Section 2.04 and Section 2.05 and the other terms of
this Agreement, that on and after the Closing Date but prior to the Commitment
Termination Date, the Agent issue a Letter of Credit or Letters of Credit for
the account of the Company or any Guarantor; provided that the Company or such
--------
Guarantor executes and delivers to the Agent a Letter of Credit Application,
provided further that (i) no Letter of Credit shall have an expiration date that
-------- -------
is later than one year after the date of issuance thereof (provided that a
Letter of Credit may provide that it is extendible for consecutive one year
periods); (ii) the Company shall not request that the Agent issue any Letter of
Credit, if, after giving effect to such issuance, the sum of the aggregate
Letter of Credit Obligations plus the aggregate outstanding principal amount of
----
the Advances would exceed the lesser of (A) the Committed Amount of the
Commitments and (B) the Borrowing Base; and (iii) the Company shall not request
that the Agent issue any Letter of Credit if after giving effect to such
issuance, the aggregate Letter of Credit Obligations would exceed the Committed
Amount of the Letter of Credit Subfacility. To the extent of any conflict
between the terms of this Agreement and any Letter of Credit Application, the
Letter of Credit Application shall control.
SECTION 2.05. Notice of Issuance of Letter of Credit; Agreement to
----------------------------------------------------
Issue.
-----
(a) Whenever the Company desires the issuance of a Letter of Credit,
it shall, in addition to any application and documentation procedures reasonably
required by the Agent for the issuance of such Letter of Credit, deliver to the
Agent a written notice no later than 11:00 AM (local time for the Agent) at
least two (2) Business Days in advance of the proposed date of issuance and the
Agent shall promptly forward a copy of such notice to each Bank. Each such
notice shall specify (i) the Account Party, (ii) the proposed date of issuance
(which shall be a Business Day); (iii) the face amount of the Letter of Credit;
(iv) the expiration date of the Letter of Credit; and (v) the name and address
of the beneficiary with respect to such Letter of Credit and shall attach a
precise description of the documentation and a verbatim text of any certificate
to be presented by the beneficiary of such Letter of Credit which would require
the Agent to make payment under the Letter of Credit, provided that the Agent
--------
may require reasonable changes in any such documents and certificates in
accordance with its customary letter of credit practices, and provided further,
-------- -------
that no Letter of Credit shall require payment against a conforming draft to be
made thereunder on the same Business Day that such draft is presented if such
presentation is made after 11:00 AM (Atlanta, Georgia time). In determining
whether to pay any draft under any Letter of Credit, the Agent shall be
responsible only to determine that the documents and certificate required to be
delivered under its Letter of Credit have been delivered, and that
-29-
they comply on their face with the requirements of the Letter of Credit.
Promptly after receiving the notice of issuance of a Letter of Credit, the Agent
shall notify each Bank of such Bank's respective participation therein,
determined in accordance with its respective Pro Rata Share of the Commitments.
(b) The Agent agrees, subject to the terms and conditions set forth
in this Agreement, to issue for the account of such Account Party a Letter of
Credit in a face amount equal to the face amount requested under paragraph (a)
above, following its receipt of a notice required by Section 2.05(a).
Immediately upon the issuance of each Letter of Credit, each Bank shall be
deemed to, and hereby agrees to, have irrevocably purchased from the Agent a
participation in such Letter of Credit and any drawing thereunder in an amount
equal to such Bank's Pro Rata Share of the Commitments multiplied by the face
amount of such Letter of Credit. Upon issuance and amendment or extension of any
Letter of Credit, the Agent shall provide a copy of each such Letter of Credit
issued, amended or extended hereunder to each Bank.
(c) As of the Closing Date, each of the Existing Letters of Credit
shall be deemed to have been issued by the Agent in accordance with the terms
hereof, each Bank shall be deemed to have purchased a participation in the
Existing Letters of Credit in an amount equal to such Bank's Pro Rata Share of
the Commitments multiplied by the face amount thereof, and the Existing Letters
of Credit shall be governed by the terms hereof.
SECTION 2.06. Payment of Amounts drawn under Letters of Credit.
-------------------------------------------------
(a) In the event of any request for a drawing under any Letter of
Credit by the beneficiary thereof, the Agent shall notify the Company and the
Banks on or before the date on which the Agent intends to honor such drawing,
and the Company and the Account Party (if other than the Company) jointly and
severally agree to reimburse the Agent on the day on which such drawing is
honored in an amount, in same day funds, equal to the amount of such drawing.
(b) Notwithstanding any provision of this Agreement to the contrary,
to the extent that any Letter of Credit or portion thereof remains outstanding
on the Commitment Termination Date, for any reason whatsoever, the Company, the
Guarantors and the Banks hereby agree that the beneficiary or beneficiaries
thereof shall be deemed to have made a drawing of all available amounts pursuant
to such Letters of Credit on the Commitment Termination Date which amount shall
be held by the Agent as cash collateral for its remaining obligations pursuant
to such Letters of Credit.
(c) As between the Company, any Account Party and the Agent, the
Company and such Account Party assume all risk of the acts and omissions of, or
misuse of,
-30-
the Letters of Credit issued by the Agent, by the respective beneficiaries of
such Letters of Credit, other than losses resulting from the gross negligence or
willful misconduct of the Agent. In furtherance and not in limitation of the
foregoing but subject to the exception for the Agent's gross negligence or
willful misconduct set forth above, the Agent shall not be responsible (i) for
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of such Letters of Credit, even if it should in fact prove to be in any
or all respects insufficient, inaccurate, fraudulent or forged or otherwise
invalid; (ii) for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of Credit or the
rights or benefits thereunder or proceeds thereof in whole or in part which may
prove to be invalid or ineffective for any reason; (iii) for failure of the
beneficiary of any such Letter of Credit to comply fully with the conditions
required in order to draw upon such Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex, telecopy or otherwise; (v) for good faith
errors in interpretation of technical terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or the proceeds thereof; (vii) for the
misapplication by the beneficiary of any such Letter of Credit; and (viii) for
any consequences arising from causes beyond the control of the Agent.
SECTION 2.07. Payment of Letter of Credit Draws by Banks. In the event
------------------------------------------
that the Company or the Account Party shall fail to reimburse the Agent as
provided in Section 2.06, the Agent shall promptly notify each Bank of the
unreimbursed amount of such drawing and of such Bank's respective participation
therein. Each Bank shall make available to the Agent an amount equal to its
respective participation, in Dollars and in immediately available funds, at the
office of the Agent specified in such notice not later than 1:00 P.M. (Atlanta,
Georgia time) on the Business Day after the date notified by the Agent and such
amount shall be deemed to be outstanding hereunder as an Advance. Each Bank
shall be obligated to make such Advance hereunder regardless of whether the
conditions precedent in Article III are satisfied and regardless of whether such
Advance complies with the minimum borrowing requirements hereunder. In the event
that any such Bank fails to make available to the Agent the amount of such
Bank's participation in such Letter of Credit, the Agent shall be entitled to
recover such amount on demand from such Bank together with interest as provided
for in Section 2.02(c). The Agent shall distribute to each Bank which has paid
all amounts payable under this Section with respect to any Letter of Credit,
such Bank's Pro Rata Share of all payments received by the Agent from the
Account Party in reimbursement of drawings honored by the Agent under such
Letter of Credit when such payments are received.
SECTION 2.08. Prepayment of Borrowings Under the Commitments. The
----------------------------------------------
Company shall have the right to prepay Borrowings under the Commitments, in
whole at any
-31-
time or in part from time to time, without premium or penalty, provided that (i)
the Company gives the Agent prior written notice of such prepayment, specifying
the date such prepayment will occur, (ii) each partial prepayment shall be in an
amount of at least $250,000 and integral multiples of $50,000 and (iii)
prepayments shall be applied to repay Borrowings under the Commitments in the
order set forth in Section 2.10 hereof.
SECTION 2.09. Voluntary Reduction of Commitments. Upon at least three
----------------------------------
(3) Business Days' prior written notice (or telephonic notice promptly confirmed
in writing) to the Agent, which notice shall specify (1) the amount by which
such Commitments are to be terminated and (2) the date such termination is to
occur, the Company shall have the right, without premium or penalty, to
terminate the Commitments, in whole or in part, provided that (a) any partial
--------
termination pursuant to this Section 2.09 shall be in an amount of least
$500,000 and integral multiples of $50,000 and (b) any such termination shall
apply to reduce proportionately and permanently the Commitments. If the sum of
(i) the aggregate principal amount of Advances plus (ii) the aggregate Letter of
Credit Obligations exceeds the amount of the Commitments as so reduced, the
Company shall immediately repay Borrowings under such Commitments by an amount
equal to such excess, together with accrued but unpaid interest on such excess.
SECTION 2.10. Allocation of Payments.
----------------------
(a) All principal and interest payments and prepayments made with
respect to Advances and payments in respect of Letter of Credit Fees and
Commitment Fees shall be allocated among all outstanding Commitments, Letter of
Credit Obligations and Advances to which such payments relate, proportionately
based on the Banks' Pro Rata Shares of the Commitments.
(b) Except to the extent otherwise provided in the Intercreditor
Agreement, all payments made to the Agent by the Company or any Account Party
shall be applied in the following order; (a) first, to the reimbursement of any
-----
fees which are due and payable, and expenses incurred by and then due and
payable to, the Agent in connection with the administration of the Commitments
and otherwise (to the extent any such fees are payable by the Company pursuant
to the terms of this Agreement or the Fee Letter); (b) second, to the payment of
------
any accrued and unpaid interest and Fees which are due and payable, pro rata to
--- ----
the Banks based upon their respective Pro Rata Shares of the Commitments; (c)
third, to the payment of outstanding Advances; and finally, to cash
----- -------
collateralize the Letter of Credit Obligations to the extent of any Letter of
Credit Exposure.
SECTION 2.11. Termination of Commitments. The unpaid principal
--------------------------
balance and all accrued and unpaid interest on the Notes will be due and payable
upon the first of the following dates or events to occur: (i) acceleration of
the maturity of any Note in accordance
-32-
with the remedies contained in Section 8.02 of this Agreement; or (ii) upon the
Expiration of the Commitments on the Commitment Termination Date.
SECTION 2.12. Use of Proceeds. The proceeds of each Borrowing under
---------------
the Commitments will be used by the Company solely for the following purposes:
(a) On the Closing Date (i) all amounts outstanding under the
"Revolving Credit A Commitments" (as defined the Original Credit
Agreement), shall be deemed outstanding under the Commitments, (ii) all
Existing Letters of Credit and all letter of credit applications and
agreements executed in connection with such Existing Letters of Credit
shall be deemed to be outstanding hereunder as Letters of Credit and
Letters of Credit Applications, respectively, (iii) the Banks shall make
and receive such payments as the Agent shall direct to adjust each Bank's
respective pro rata share of the outstandings under the Commitments to
reflect the terms of this Agreement, and (iv) Canada shall be deemed to
have purchased, and SunTrust shall be deemed to have sold, a participation
in the Existing Letters of Credit equal to fifty percent (50%) of the
amount thereof;
(b) The Company may further borrow under this Agreement to refinance
all outstanding indebtedness under FLECBOA; and
(c) All other Advances shall be used as working capital and for other
general corporate purposes.
SECTION 2.13. Fees.
----
(a) On the Closing Date, the Company shall pay to SunTrust Capital
Markets, Inc. the Arrangement Fee, which fee shall be fully earned and
nonrefundable when paid and shall be distributed to the Banks and Barclays as
follows: (1) $191,290 to Canada, (2) $167,420 to Barclays and $191,290 to
SunTrust; provided, however, that the Company may pay Barclays its share of the
Arrangement Fee ($167,420) directly from the Barclays Revolver in which case it
shall pay SunTrust Capital Markets, Inc. a portion of the Arrangement Fee equal
to $382,580, of which $191,290 will be distributed to each Bank.
(b) On the Closing Date and on each anniversary thereof, if the
Commitments are extended pursuant to Section 2.16, the Company shall pay to the
Agent the Agent's Fee, which fee shall be fully earned and nonrefundable when
paid.
(c) The Company shall pay to the Agent, for the account of and
distribution of the respective Pro Rata Share to each Bank (subject to the last
sentence hereof), a commitment fee (the "Commitment Fee") for the period
--------------
commencing on the Closing Date
-33-
to and including the Commitment Termination Date, computed at a rate equal to
the Applicable Commitment Fee Percentage multiplied by the average daily unused
portion of the Commitments of the Banks, such fee being payable quarterly in
arrears on the last day of each calender quarter, commencing on March 31, 1997,
and on the Commitment Termination Date. For purposes of calculating the
Commitment Fee, Outstanding Letter of Credit Obligations shall be considered
usage of the Commitments.
(d) The Company agrees to pay, annually in advance upon the issuance
or renewal of each Letter of Credit, (1) to the Agent, for the account of the
Banks, a letter of credit fee equal to the Applicable LC Fee Percentage
multiplied by the stated face amount of such Letter of Credit and (2) to the
Agent, for its own account, a letter of credit fronting fee equal to one-eighth
of one percent (0.125%) multiplied by the stated face amount of such Letter of
Credit (collectively, the "Letter of Credit Fee").
--------------------
(e) The Company and Xxxx Limited hereby authorize the Agent and
Barclays to withdraw an amount equal to the fees which are due and payable under
clauses (a), (b), (c) or (d) above from any of their accounts with the Agent and
Barclays.
SECTION 2.14. Interest. Except as set forth in Section 2.17, interest
-------
shall accrue on the unpaid principal amount of the Notes at a fluctuating per
annum rate of interest equal to the Prime Rate plus the Applicable Margin.
Interest on the Notes shall be payable to the Banks monthly in arrears (i) on
the last day of each calender month, commencing February 28, 1997 and continuing
thereafter, and (ii) on the Commitment Termination Date.
SECTION 2.15. Borrowing Base Deficiency. On any date that the sum of
-------------------------
(i) the aggregate Advances, plus (ii) the Letter of Credit Exposure shall exceed
----
the Borrowing Base, as most recently reported by the Company pursuant to Section
5.02(b)(2), the Company shall pay an amount equal to such excess to the Agent,
for the benefit of the Banks, which shall be applied in the order set forth in
Section 2.10(b).
SECTION 2.16. Extension of Commitments. No earlier than 120 days but
------------------------
no later than 90 days prior to the then applicable Commitment Termination Date,
the Company may request that the Commitment Termination Date be extended by the
Banks for an additional 364-days or longer period. The Banks may agree or not
agree to such extension in the exercise of their sole discretion, provided,
--------
however, that the Agent shall inform the Company no later than 60 days prior to
-------
the then applicable Commitment Termination Date of the Banks' decision as to
whether to extend the Commitment Termination Date. Notwithstanding anything
herein to the contrary, (i) no extension shall be granted unless Barclays agrees
to extend the Barclays Revolver and BGI Facility for the same period of time and
(ii) the Commitment Termination Date may only be extended for up to an
additional two-year period pursuant to this Section 2.16. If the Banks agree, in
their sole discretion, to
-34-
extend the Commitment Termination Date, then the applicable Commitment
Termination Date shall automatically be so extended upon written notice thereof
being delivered by the Banks to the Company and completion by the Company and
its Subsidiaries of any conditions to such extension required by the Banks.
SECTION 2.17. Capital Adequacy. (a) If, after the date of this
----------------
Agreement, any Bank shall have determined that the adoption of any applicable
law, rule or regulation regarding capital adequacy, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank with any request or directive
regarding capital adequacy not currently in effect or fully applicable as of the
Closing Date (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material; or
(b) if, by reason of (x) after the date hereof, the introduction of or any
change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation, or (y) the compliance with any guideline or request from any central
bank or other governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally (whether or not having
force of law) (1) any Bank shall be subject to any tax, duty or other charge
with respect to its Letter of Credit Obligations or its obligation to issue
Letters of Credit, or the basis of taxation of payments to any Bank on its
obligation to issue Letters of Credit shall have changed (except for changes in
the tax on the overall net income of such Bank imposed by the jurisdiction in
which such Bank's principal executive office or applicable lending office is
located); or (2) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank's applicable lending office shall be imposed or deemed
applicable or any other condition affecting its Letter of Credit Obligations or
its obligation to issue Letters of Credit shall be imposed on any Bank or its
applicable lending office; and as a result thereof there shall be any increase
in the cost to such Bank of agreeing to issue or issuing, purchasing
participations, funding or maintaining Letters of Credit, or there shall be a
reduction in the amount received or receivable by such Bank or its applicable
lending office;
then, from time to time, promptly upon demand by such Bank (with a copy to the
Agent), the Company shall pay such Bank such additional amount or amounts as
will compensate such Bank for such reduction. A certificate of any Bank claiming
compensation under this
-35-
Section and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive absent manifest error. In determining any such
amount, such Bank may use any reasonable averaging and attribution methods. Each
Bank will promptly notify the Company of any such adoption, change or compliance
of which it has knowledge which will entitle such Bank to compensate pursuant to
this Section, but the failure to give such notice shall not affect such Bank's
right to such compensation provided such Bank gives such notice within 90 days
after an officer of such Bank having responsibility for the administration of
this Agreement shall have received actual notice of such adoption, change or
compliance.
SECTION 2.18. Making of Payments. The Fees and all payments of
------------------
principal of, or interest on, the Notes shall be made in immediately available
funds to the Agent at its principal office in Atlanta, Georgia, for the accounts
of the respective Banks. All such payments shall be made not later than 12:00
noon (Atlanta, Georgia time) and funds received after that hour shall be deemed
to have been received by the Agent on the next following Business Day. Payments
to the Agent shall, as to the Company, constitute payment to the applicable
Banks hereunder. On the Business Day that a payment is received or deemed to
have been received hereunder, the Agent shall remit in immediately available
funds to each Bank its share, based on the percentages set forth in Section
2.01, of all payments received by the Agent on the Notes.
SECTION 2.19. Default Rate of Interest. Upon the occurrence and
------------------------
during the continuance of an Event of Default set forth in Section 8.01(a), (b)
or (d), to the extent permitted by law, all unpaid amounts hereunder shall, on
such date and thereafter, accrue the then applicable interest rate plus an
additional two percent (2.0%) per annum until payment in full. Interest accruing
pursuant to this Section 2.19 will be due and payable upon demand.
SECTION 2.20. Proration of Payments. Subject to the terms of the
---------------------
Intercreditor Agreement, if any Bank shall obtain any payment or other recovery
(whether voluntary, involuntary, through exercise of any right of set-off or
otherwise) after the occurrence and during the continuance of an Event of
Default on account of the principal of or interest on any Note or any fees in
respect of this Agreement in excess of its pro rata share of payments and other
--- ----
recoveries obtained by all the Banks on account of the principal of and interest
on the Notes then held by them or any fees due to them in respect of this
Agreement, such Bank shall forthwith purchase from the other Banks such
participation in the Notes held by them or in such fees owed to them as shall be
necessary to cause such purchasing Bank to share the excess payment or other
recovery ratably with each of them; provided, however, that if all or any or any
--------- --------
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Bank, the purchase from such Bank shall be rescinded and the
purchase price restored by each selling Bank to the extent of such recovery, but
without interest. After the occurrence and during the continuance of an Event of
Default, disproportionate payments of interest shall be shared by the purchase
of separate
-36-
participations in unpaid interest obligations, disproportionate payments of fees
shall be shared by the purchase of separate participations in unpaid fee
obligations, and disproportionate payments of principal shall be shared by the
purchase of separate participations in unpaid principal obligations. The Company
agrees that any Bank so purchasing a participation from another Bank pursuant to
this Section 2.20 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the Company
in the amount of such participation. Each Bank shall give the Agent notice
within five (5) days of any payments or other recoveries described above which
it obtains.
SECTION 2.21. Banks' Obligations Several. The obligation of each Bank
--------------------------
to make any Advance is several, and not joint or joint and several, and is not
conditioned upon the performance by all other Banks of their obligations to make
Advances.
SECTION 2.22. Calculation of Interest. Interest payable on the Notes,
-----------------------
including interest payable as provided in Section 2.19, shall be calculated on
the basis of a year of 360 days and paid for the actual number of days elapsed.
SECTION 2.23. Payments Free of Taxes. (a) All Payments made by the
----------------------
Company under this Agreement and the Notes shall be made free and clear of, and
without deduction for, any Tax. To the extent that the Company is obligated by
Applicable Law to make any deduction or withholding on account of any Tax from
any amount payable to any Bank under this Agreement or the Notes, the Company
shall (1) make such deduction or witholding and pay the same to the relevant
governmental authority and (2) pay such additional amount to such Bank as is
necessary to result in that Bank's receiving a net after-tax (or
after-assessment or after-charge) amount equal to the amount to which such Bank
would have been entitled under this Agreement or the Notes absent such deduction
or withholding.
(b) Each Bank that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) agrees to furnish to the Company and the Agent, on the
Closing Date and otherwise prior to the time it becomes a Bank hereunder, two
copies of either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 or any successor forms thereto (wherein such Bank
claims entitlement to complete exemption from or reduced rate of U.S. Federal
withholding tax on interest paid by the Company hereunder) and to provide to the
Company and the Agent a new Form 4224 or Form 1001 or any successor forms
thereto if any previously delivered form is found to be incomplete or incorrect
in any material respect or upon the obsolescence of any previously delivered
form.
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SECTION 2.24. Illegality. Notwithstanding any other provision
----------
contained in this Agreement, the Agent shall not be obligated to issue any
Letter of Credit, nor shall any Bank be obligated to purchase its participation
in any Letter of Credit to be issued hereunder, if the issuance of such Letter
of Credit or purchase of such participation shall have become unlawful or
prohibited by compliance by Agent or such Bank in good faith with any law,
governmental rule, guideline, request, order, injunction, judgment or decree
(whether or not having the force of law); provided that in the case of the
--------
obligation of a Bank to purchase such participation, such Bank shall have
notified the Agent to such effect at least three (3) Business Days' prior to the
issuance thereof by the Agent, which notice shall relieve the Agent of its
obligation to issue such Letter of Credit pursuant to Section 2.04 and Section
2.05 hereof.
SECTION 2.25. Letter of Credit Obligations Absolute. The obligation of
-------------------------------------
each Account Party to reimburse the Agent for drawings made under Letters of
Credit issued for the account of the Account Party and the Banks' obligation to
honor their participations purchased therein shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including without limitation, the following
circumstances:
(a) Any lack of validity or enforceability of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which
the Company or any Subsidiary or Affiliate of the Company may have at any time
against a beneficiary or any transferee of any Letter of Credit (or any Persons
or entities for whom any such beneficiary or any transferee may be acting), any
Bank or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including without
limitation any underlying transaction between the Company or any of its
Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit
was procured);
(c) Any draft, demand, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect;
(d) Payment by the Agent under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
comply with the terms of such Letter of Credit;
(e) Any other circumstance or happening whatsoever which is similar
to any of the foregoing; or
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(f) the fact that a Default or an Event of Default shall have
occurred and be continuing.
Nothing in this Section 2.25 shall prevent an action against the Agent for its
gross negligence or willful misconduct in honoring drafts under the Letters of
Credit.
ARTICLE III
CONDITIONS TO BORROWINGS
------------------------
The obligation of each Bank to make an Advance to the Company
hereunder is subject to the satisfaction of the following conditions:
SECTION 3.01. Conditions Precedent to Initial Advances. At the time
----------------------------------------
of the making by each Bank of its initial Advance hereunder, unless otherwise
waived or consented to by the Required Banks,
(1) all obligations of the Company to the Agent or any Bank incurred prior
thereto (including, without limitation, the Company's obligation to
reimburse the fees and disbursements of counsel to the Agent and the Banks
in accordance with this Agreement, the expense of the prefunding field
audit conducted by the Banks in an amount not to exceed $2,500 and any fees
payable to the Agent on or prior to such date), together with the
Arrangement Fee and the Agent's Fee, shall have been paid in full;
(2) the Barclays Agreement and the Barclays Guaranties shall have been
executed and delivered to Barclays Bank PLC, and all conditions precedent
thereto shall have been fulfilled;
(3) the Agent shall have received the following, each dated as of the
Closing Date, in form and substance satisfactory to the Banks and (except
for the Notes and Intercompany Notes) in sufficient copies for each Bank:
(a) A duly executed original of this Agreement.
(b) A duly completed and executed original of a Note payable to the
order of each Bank in the principal amount of such Bank's Commitment.
(c) A duly executed original of the Intercreditor Agreement.
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(d) A duly executed original of the Company Security Agreement and
the Guarantor Security Agreement, together with such UCC financing
statements and UCC amendments recorded in such jurisdictions as the
Required Banks deem necessary or desirable to perfect the security
interests granted thereunder and under the Company Pledge Agreement, the
Guarantor Pledge Agreement, the Company Trademark Security Agreement, the
Guarantor Trademark Security Agreement.
(e) Certified Requests for Information or Copies (Form UCC-11) or
equivalent reports, listing all effective financing statements which name
the Company or any of its Material U.S. Subsidiaries as debtor, together
with copies of such other financing statements (none of which shall cover
the U.S. Collateral purported to be covered by the Company Security
Agreement, the Guarantor Security Agreement, the Company Pledge Agreement,
the Guarantor Pledge Agreement, the Company Trademark Security Agreement or
the Guarantor Trademark Security Agreement, other than financing statements
in favor of the U.S. Collateral Agent.
(f) A duly executed original of the Company Pledge Agreement and the
Guarantor Pledge Agreement, together with (i) stock certificates evidencing
the shares of stock of all U.S. Subsidiaries of the Company (other than
Law/Spear, LLC) pledged to the U.S. Collateral Agent thereunder and an
undated stock power for each such stock certificate, executed in blank by
the pledgor of such stock and (ii) Intercompany Notes evidencing all
intercompany indebtedness among the Company and its Subsidiaries and
appropriate instruments of transfer executed in blank by the pledgor of
each Intercompany Note.
(g) A duly executed original of the Company Trademark Security
Agreement and the Trademark Security Agreement, together with such filings
in the United States Patent and Trademark Office as the Required Banks deem
necessary or desirable to prefect the security interests granted under the
Company Trademark Security Agreement and the Guarantor Trademark Security
Agreement.
(h) Duly executed originals of the North Carolina Mortgage to be
recorded in the real estate records of the jurisdiction in which the
Mortgaged Property related thereto is located, together with such fixture
filings and amendments to existing fixture filings recorded in such
jurisdictions as the Required Banks deem necessary or desirable to perfect
the security interests granted thereunder, and endorsements to the existing
title insurance policies for such Mortgage showing that the U.S. Collateral
Agent has a valid first priority Lien with respect to such Mortgaged
Property subject to no encumbrances other than such Mortgages and Liens
permitted pursuant to Section 6.02 hereof.
-40-
(i) Evidence satisfactory to the Required Banks that all other
actions necessary or desirable to perfect and protect the security
interests created by the U.S. Security Documents have been taken.
(j) Certificates of insurance issued by the Company's insurers,
describing in reasonable detail the insurance maintained by the Company,
together with appropriate evidence showing that the Agent has been named as
loss payee or additional insured, as its interest may appear, on all
insurance policies insuring property of the Company and its Subsidiaries.
(k) (i) Duly executed originals of the Second Amendment to SunTrust
Interest Rate Agreement and the Swap Guaranty for SunTrust and executed
copies thereof for all other Banks, (ii) duly executed originals of the
California Guaranty Supplement for each Bank, (iii) duly executed originals
of the U.S. Share Charges, (iv) share certificates evidencing 65% of the
issued and outstanding shares of the International Subsidiaries that are
pledged under the U.S. Shares Changes or evidence that Barclays Bank PLC is
holding such share certificates as bailee for the U.S. Collateral Agent,
and (v) evidence that all conditions precedent to the effectiveness of all
such amendments and U.S. Shares Charges shall have been satisfied.
(l) Certificates signed by the Chief Executive Officer or the Chief
Financial Officer of each of the Company and the Guarantors as to the
solvency of such Company or Guarantor.
(m) A duly executed original of the Closing Certificate, in the form
attached hereto as Exhibit E.
---------
(n) Copies of the organizational papers of each of the Company and
the Material U.S. Subsidiaries, certified as true and correct by the
Secretary of State of the State in which the Company or such Material U.S.
Subsidiary is incorporated, and certificates from the Secretaries of State
of the States in which the Company or such Material U.S. Subsidiary is
incorporated and of each Foreign Corporation State in which the Company or
such Material U.S. Subsidiary is legally required to qualify to transact
business as a foreign corporation, certifying the Company's or Material
U.S. Subsidiaries' good standing as a corporation in such States.
(o) Copies of the organizational papers of each Guarantor other than
the Material U.S. Subsidiaries, certified as true and correct by the
Secretary or Assistant Secretary of the Company or such Guarantor.
-41-
(p) Copies of the bylaws of each of the Company and the Guarantors,
of resolutions of the Board of Directors of each of the Company and the
Guarantors approving this Agreement, the Notes, the Borrowings hereunder,
the U.S. Security Documents and all other Loan Documents to which the
Company or such Guarantor is a party and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect
to this Agreement, the Notes, the U.S. Security Documents and all other
Loan Documents to which the Company or such Guarantor is a party, in each
case certified as true and correct by the Secretary or an Assistant
Secretary of the Company or such Guarantor.
(q) Copies of all documents delivered in satisfaction of the
conditions precedent to the effectiveness of the Barclays Agreement;
(r) A certificate from a duly authorized officer of the Company
certifying that all promissory notes existing on the date hereof that
evidence all Indebtedness of the Company and its Subsidiaries incurred for
the purchase of stock of the Company (other than the promissory note, dated
as of June 1, 1992, in favor of Xxxxxx X. Xxxxxxxxx in the amount of
$243,500.00 and the promissory note, dated as of January 1, 1995, in favor
of Xxxxxxx X. Xxxxx in the amount of $12,359.00) are in the form of
Schedule 6.01 hereof or contain a subordination provision substantially in
-------------
the form of the following;
The indebtedness evidenced by this Note represents a primary
obligation of Law Companies Group, Inc. and is and shall be
subordinated as to payment of principal and interest to all
bona fide indebtedness of Law Companies Group, Inc. payable
to any bank, including, but not limited to, SunTrust Bank,
Atlanta, Atlanta, Georgia, and the terms of all agreements
with any such bank are incorporated herein by reference.
(s) A favorable written opinion of Long, Xxxxxxxx & Xxxxxx, LLP,
counsel for the Company and the Guarantors organized under the laws of
Georgia and Delaware, substantially in the form of Exhibit F-1 attached
-----------
hereto, and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request, addressed
to the Agent and the Banks.
(t) A favorable written opinion of Xxxxxx Xxxxxxxx, General Counsel
for the Company and the Guarantors, substantially in the form of
Exhibit F-2 attached hereto, and covering such additional matters relating
-----------
to the transactions contemplated hereby as the Required Banks may
reasonably request, addressed to the Agent and the Banks.
-42-
(u) A favorable written opinion of local counsel in California for the
Company and Guarantors, substantially in the form of Exhibit F-3(A) attached
--------------
hereto with appropriate insertions, and favorable written opinion of local
counsel in North Carolina, substantially in the form of Exhibit F-3(B) attached
--------------
hereto with appropriate insertions, and in each case covering such additional
matters relating to the transactions contemplated hereby as the Required Banks
may reasonably request, addressed to the Agent and the Banks.
(v) Favorable written opinions of counsel for the Company and its
Subsidiaries in England and Cyprus, in form and substance satisfactory to the
Required Banks, and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably request,
addressed to the Agent and the Banks.
(w) A copy of integrated financial forecasts and statements of cash flow
for all domestic and international operations of the Company and its
Subsidiaries through April 30, 1998.
(x) Copies of manuals and policies of the 401(k) Plan.
(y) Completion of satisfactory prefunding field audit by the Banks or
their representatives or auditors of the assets of the Company and its
Subsidiaries.
(z) A duly executed copy of the Barclays Agreement, the Barclays
Guaranties and all legal opinions rendered by counsel to the Company or any of
its International Subsidiaries with respect thereto, certified as true and
correct copies of such documents by the Chief Executive Officer or the Chief
Financial Officer of the Borrower.
(aa) Certified copies of all consents, approvals, authorizations,
registrations or filings required to be made or obtained by the Borrower or
Guarantors in connection with the transactions contemplated hereby, by the other
Loan Documents and by the Barclays Agreement.
(bb) Evidence that the Company has notified all persons holding
Shareholder Notes whose payments are past due or who have amortization of
principal due prior to the Commitment Termination Date, that all principal and
interest on such person's Shareholders Notes continues to be subordinated to all
Indebtedness of the Company and its Subsidiaries under this Agreement, the other
Loan Documents, the Barclays Agreement and all related documents which notice
shall be in form and substance reasonably satisfactory to the Banks.
-43-
(4) all corporate and other proceedings taken or to be taken in connection
with the transactions contemplated hereby and all Loan Documents and other
documents incident thereto or delivered in connection therewith shall be
satisfactory in form and substance to each Bank.
SECTION 3.02. Conditions Precedent to Each Advance. At the time of
------------------------------------
the making by the Banks of each Advance hereunder (including the initial
Advances), (a) the following statements shall be true:
(i) The representations and warranties contained in Article IV
hereof are true and correct in all material respects on and as of the date
of such Borrowing as though made on and as of such date;
(ii) No Default or Event of Default exists or would result from such
Borrowing or from the application of the proceeds therefrom;
(iii) Since the date of the most recent consolidated financial
statements of the Company and its Subsidiaries decided in Section 4.05 or
delivered to the Banks pursuant to Section 5.02, there shall have been no
change which has had or could reasonably be expected to have a Materially
Adverse Effect;
(iv) There shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge of
the Company, threatened (i) which reasonably could be expected to have a
Materially Adverse Effect, or (ii) seeking to prohibit or restrict the
ownership or operation of any portion of the business or assets of the
Company or any of its Subsidiaries, or to compel the Company or any of its
Subsidiaries to dispose of or hold separate all or any portion of its
businesses or assets, where such portion or portions of such business(es)
or assets, as the case may be, constitute a material portion of the total
businesses or assets of the Company or its Subsidiaries; and
(v) The Advances to be made and the use of proceeds thereof shall
not contravene, violate or conflict with, or involve the Agent or any Bank
in a violation of, any Applicable Law.
(b) the Agent shall have received such other approvals, opinions or
documents as any Bank through the Agent may reasonably request. Each Notice of
Borrowing given by the Company in accordance with Section 2.02 hereof and the
acceptance by the Company of the proceeds of any Borrowing shall constitute a
representation and warranty by the Company, made as of the time of the making of
such Borrowing that the conditions specified in this Section 3.02 have been
fulfilled as of such time unless a notice to the contrary
-44-
specifically captioned "Disclosure Statement" is received by each of the Banks
from the Company prior to 5:00 p.m. (Atlanta, Georgia time) on the Business Day
immediately preceding the date of the making of such Borrowing. To the extent
that the Banks agree to make such Borrowing after receipt of a Disclosure
Statement in accordance with the preceding sentence, the representations and
warranties pursuant to the preceding sentence will be deemed made as modified by
the contents of such Disclosure Statement and repeated, as so modified, as at
the time of the making of such Borrowing. Any such modification shall be
effective only for the occasion on which the Banks elect to make such Borrowing,
and unless expressly agreed by the Required Banks in writing to the contrary in
accordance with Section 10.02, shall not be deemed a waiver or modification of
any condition to the making of any future Borrowing.
SECTION 3.03. Condition Subsequent to Advances. It shall be a
--------------------------------
condition to the making by the Banks of each Advance hereunder at any time
thirty (30) days after the Closing Date that (1) the Company have repaid or
caused to have been repaid all loans to shareholders or former shareholders of
the Company made by SunTrust for which any payment of principal or interest is
past due by 60 days or more, which shall be in an amount of no more than
$60,000, and (2) Law Engineering and Environmental Services, Inc. shall have
delivered to the US Collateral Agent a certificate certifying that the pledge of
all of its uncertificated membership interests in Law/Spear, LLC has been
registered to the US Collateral Agent, which certificate shall be acknowledged
and agreed to by the Person in whose possession the books and records of
Law/Spear, LLC are kept.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company and the Guarantors represent and warrant (to the extent
such representations and warranties pertain to it and its Subsidiaries) as
follows:
SECTION 4.01. Corporate Status of Company; Status of Subsidiaries.
---------------------------------------------------
The Company and each Subsidiary that is a corporation are duly organized,
existing and in good standing under the laws of the jurisdictions of their
respective incorporation and have the corporate power and authority to own their
respective property and assets and to transact the businesses in which they
respectively are engaged or presently propose to engage and are duly qualified
and in good standing as foreign corporations in the Foreign Corporation States
and any other state where failure to be so qualified and in good standing could
have a Materially Adverse Effect. Each Subsidiary that is a partnership is duly
constituted, existing and in good standing under the laws of the jurisdiction of
its constitution and has all requisite
-45-
power, authority and legal right to own its property and assets and to transact
the businesses in which it is engaged or presently proposes to engage and is
duly qualified and in good standing as a foreign partnership wherever failure to
be so qualified and in good standing could have a Materially Adverse Effect. The
Company and each of its Subsidiaries have the power to own their respective
properties and to carry on their respective businesses as now being conducted.
The Company is adequately capitalized for the purpose of conducting its
business, was not formed solely for the purpose of acting as agent for, or as an
instrumentality of, any Subsidiary, and maintains and will continue to maintain
an identity independent of and separate from Xxxxxxxx.
SECTION 4.02. Corporate Power and Authority. Each of the Company and
------------------------------
the Guarantors has the corporate power and has taken all necessary corporate
action (including, without limitation, any consent of stockholders required by
law or by its certificate of incorporation or bylaws) to authorize it, to
execute, deliver and carry out the terms and provisions of and to incur its
obligations under this Agreement, the Notes, the Security Documents and the
other Loan Documents to which it is a party. This Agreement, the Notes, the
Security Documents and the other Loan Documents have been duly authorized,
executed and delivered by the Company and the Guarantors party thereto and
constitute the legal, valid and binding obligation of the Company and the
Guarantors party thereto enforceable in accordance with their terms, except as
the enforceability thereof may be limited by Bankruptcy Law and by general
principles of equity.
SECTION 4.03. Compliance with other Instruments. Neither the Company
---------------------------------
nor any of its Subsidiaries is in default under any material agreement to which
it is a party, and the execution, delivery and performance by the Company and
any Guarantor, as the case may be, of this Agreement, the Notes the Security
Documents and the other Loan Documents, (a) will not contravene any provision of
Applicable Law, (b) will not conflict with or be inconsistent with or result in
any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any Lien
upon any of the property or assets of the Company or any of its Subsidiaries
pursuant to the terms of, any indenture, mortgage, deed to secure debt, deed of
trust, or other material agreement or instrument to which it may be subject, (c)
will not violate any provision of the certificate of incorporation (or
equivalent thereof) or bylaws (or equivalent thereof) of the Company or any
corporate Subsidiary of the Company or the certificate of partnership or other
document governing the constitution or conduct of affairs of any Subsidiary of
the Company that is not a corporation, (d) will not require any Governmental
Approval and (e) will not result in the creation of any Lien upon the assets or
properties of the Company and its Subsidiaries except as contemplated by the
Security Documents. Neither the Company nor any of its Subsidiaries is a party
to, or otherwise subject to any provision contained in, any in, any instrument
evidencing Indebtedness of the Company or any of its Subsidiaries, any
-46-
agreement relating thereto or any other contract or agreement (including its
charter) which limits the amount of, or otherwise imposes restrictions on the
incurring of, Indebtedness of the type to be evidenced by the Notes or contains
dividend or redemption limitations on the capital stock of the Borrower, except
for this Agreement and the Barclays Agreement.
SECTION 4.04. Litigation. Except as set forth on Schedule 4.04, there
---------- --------------
are no actions, suits, investigations or proceedings pending or, to the
knowledge of the Company or any of its Subsidiaries, threatened against or
affecting the Company or any of its subsidiaries or any of their rights by or
before any court, arbitrator or administrative or governmental body in which the
amount claimed or the Company's or such Subsidiary's potential liability exceeds
$500,000 per claim or $1,000,000 in the aggregate for the Company and its
Subsidiaries, taken as a whole.
SECTION 4.05. Financial Statements. The audited consolidated financial
--------------------
statements of the Company and its Subsidiaries dated December 31, 1995, and the
related consolidated statements of income (including supporting footnote
disclosures), with opinion of Ernst & Young, Certified Public Accountants, and
the unaudited consolidated financial statements of the Company and its
Subsidiaries dated September 30, 1996, and the related consolidated statements
of income (including supporting footnote disclosures), all heretofore furnished
to the Banks, are all true and correct in all material respects and present
fairly the consolidated financial condition at the date of said financial
statements and the results of operations for the fiscal year then ending of the
Company and said Subsidiaries. Neither the Company nor any of its Subsidiaries
has as of such date any significant liabilities, contingent or otherwise,
including liabilities for Taxes or any unusual forward or long-term commitments
which were not disclosed by or reserved against in the financial statements
referred to above or in the notes thereto, and at the present time there are no
material unrealized or anticipated losses from any unfavorable commitments of
the Company or any of its Subsidiaries. All such financial statements have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods involved. Since September 30, 1996,
there has been no material adverse change in the operations, business, property
or assets of, or in the condition (financial or otherwise) of, the Company and
its subsidiaries, taken as a whole.
SECTION 4.06. Consents and Governmental Approvals. Except as set forth
-----------------------------------
on Schedule 4.06 hereto, no Governmental Approval or consent, permission,
-------------
approval or authorization of any non-governmental authority or Person is
required to authorize, or is required in connection with, the execution,
delivery, performance or enforcement of this Agreement, the Notes or any other
Loan Documents.
SECTION 4.07. Title to Properties. Each of the Company and its
-------------------
Subsidiaries has (i) good and marketable fee simple title to its respective real
properties (other than real
-47-
properties it leases from others), including such real properties reflected in
the financial statements referred to in Section 4.05, subject to no Lien of any
kind except Liens permitted under Section 6.03 and (ii) good title to all of its
other respective properties and assets (other than properties and assets which
it leases from others), including the other properties and assets reflected in
the financial statements referred to in Section 4.05, subject to no Lien of any
kind except Liens permitted by Section 6.02. Except as set forth on Schedule
--------
4.07 hereto, each of the Company and its Subsidiaries enjoys peaceful and
----
undisturbed possession under all leases necessary for the operation of its
respective properties and assets, none of which contains any unusual or
burdensome provisions that would adversely affect or impair the operation of
such properties and assets, and all such leases are valid and subsisting and in
full force and effect.
SECTION 4.08. Taxes. Except as set forth on Schedule 4.08 hereto, each
----- -------------
of the Company and its Subsidiaries has filed or caused to be filed all
declarations, reports and tax returns including, in the case of the Company and
each Subsidiary located in the United States, all federal and state income tax
returns which it is required by law to file, and has paid all Taxes which are
shown as being due and payable on such returns or on any assessments made
against it or any of its properties. The accruals and reserves on the books of
the Company and its Subsidiaries in respect of Taxes are adequate for all
periods. Neither the Company nor any of its Subsidiaries has any knowledge of
any unpaid adjustment, assessment or any penalties or interest of significance,
or any basis therefor, by any taxing authority for any period, except those
being contested in good faith and by appropriate proceedings which effectively
stay the enforcement of any Lien and the attachment of a penalty.
SECTION 4.09. ERISA. Except as disclosed on Schedule 4.09 attached
----- -------------
hereto:
(a) Identification of Plans. (i) Neither the Company nor any ERISA
-----------------------
Affiliate maintains or contributes to, or has maintained or contributed to,
any Plan that is an ERISA Plan, and (ii) neither the Company nor any of its
Subsidiaries maintains or contributes to, or has maintained or contributed
to, any Plan that is an Executive Arrangement;
(b) Compliance. Each Plan has at all times been maintained, by its
----------
terms and in operation, in accordance with all Applicable Laws, except such
noncompliance (when taken as a whole) that will not have a Materially
Adverse Effect;
(c) Liabilities. Neither the Company nor any of its Subsidiaries is
-----------
currently nor has in the last 6 years been obligated to make contributions
(directly or indirectly) to a Multiemployer Plan, nor is it currently nor
will it become subject to any liability
-48-
(including withdrawal liability), tax or penalty whatsoever to any Person
whomsoever with respect to any Plan including, but not limited to, any tax,
penalty or liability arising under Title I or Title IV or ERISA of Chapter
43 of the Code, except such liabilities (when taken as a whole) as will not
have a Materially Adverse Effect; and
(d) Funding. The Company and each ERISA Affiliate has made full and
-------
timely payment of all amounts (i) required to be contributed under the
terms of each Plan and Applicable Law and (ii) required to be paid as
expenses of each Plan. No Plan has an "amount of unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA).
SECTION 4.10. Solvency. Each of the Company and the Guarantors hereby
--------
acknowledges receipt of fair consideration and reasonably equivalent value for
the incurrence of its obligations hereunder. Each of the Company and the
Guarantors (other than IAM Environmental, Inc.) (ii) represents and warrants
that, (A) after giving effect to the incurrence of such obligations and its
obligations under the SunTrust Interest Rate Contracts, any Letter of Credit
applications, the Barclays Agreement, the Barclays Guaranties and the Swap
Guaranty, as the case may be, and (B) taking into account its rights under
Section 10.01(e) as a Funding Guarantor against the other Guarantors as
Contributing Guarantors and any similar rights under the Xxxxxxx Guaranties and
the Swap Guaranty, the present fair salable value of its assets exceeds its
liabilities in that it retains sufficient capital to reasonably anticipate needs
and risks of its ongoing business, and (iii) represents and warrants that, (A)
after giving effect to the incurrence of such obligations and its obligations
under the SunTrust Interest Rate Contracts, any Letter of Credit applications,
the Barclays Agreement, the Barclays Guaranties and the Swap Guaranty, as the
case may be, and (B) taking into account its rights under Section 10.01(e) as a
Funding Guarantor against the other Guarantors as Contributing Guarantors and
any similar rights under the Barclays Guaranties and the Swap Guaranty, it has
not incurred, nor is it obligated for, debts beyond its ability to pay such
debts as they mature, and that the present fair salable value of its assets is
greater than that needed to pay its probable existing debts as they become due.
Each Guarantor further represents and warrants that because of the
provision of loans, advances and other corporate services by the Company to the
Guarantors are materially interested in the financial success of the Company and
will materially benefit from the Company entering into this Agreement, for which
its guaranty is a condition precedent.
SECTION 4.11. Subsidiaries. Schedule 4.11 attached hereto correctly
------------ -------------
sets forth the name of each Subsidiary of the Company, the jurisdiction of such
Subsidiary's incorporated or organization and the ownership of all issued and
outstanding capital stock of such Subsidiary. All the outstanding shares of the
capital stock of each such Subsidiary have been validly issued and are fully
paid and nonassessable and all such outstanding
-49-
shares, except as noted on such Schedule, are owned of record and beneficially
by the Company or a wholly-owned Subsidiary of the Company free of any Lien or
claim. Both Law/Xxxxxxxx, Inc. and Law Engineering, Inc. have merged with and
into Law Environmental and Engineering Services, Inc. Neither Law/Xxxxxxxx, Inc.
nor Law Engineering, Inc. now exist.
SECTION 4.12. Outstanding Indebtedness. Except for (i) the
------------------------
Indebtedness to the Banks to be refinanced with the proceeds of Borrowings
hereunder pursuant to Section 2.12, (ii) Indebtedness existing on the Closing
Date and set forth on Schedule 4.12, and (iii) Indebtedness permitted by Section
-------------
6.01, neither the Company nor any of its Subsidiaries, on a consolidated basis,
has outstanding basis, has outstanding any Indebtedness. There exists no default
under the provisions of any instrument evidencing or securing Indebtedness of
the Company or any of its Subsidiaries or of any agreement otherwise relating
thereto which has had or would reasonably be expected to have a Material Adverse
Effect.
SECTION 4.13. Pollution and Other Regulations.
-------------------------------
(a) The Company and its Subsidiaries are not in violation of, and do
not presently have outstanding any liability under, have not been notified that
they are or may be liable under and do not have knowledge of any liability or
potential liability (including any liability relating to matters set forth in
Part A. of Schedule 4.13) except as set forth in Part A. of Schedule 4.13, under
------------- -------------
any applicable Environmental Laws which violation, liability or potential
liability could reasonably be expected to have a Materially Adverse Effect.
(b) Except as set forth in Part B. of Schedule 4.13, neither the
-------------
Company nor any of its Subsidiaries has received a written request for
information under any Environmental Laws stating or suggesting that the Company
or any of its Subsidiaries has or may have liability thereunder or written
notice that any such entity has been identified as a potentially responsible
party under any Environmental Laws, or any comparable state law, or any public
health or safety or welfare law, nor has any such entity received any written
notification that any Hazardous Substance that it or any of its respective
predecessors in interest has generated, stored, treated, handled, transported,
or disposed of, has been released or is threatened to be released at any site at
which any Person intends to conduct or is conducting a remedial investigation or
other action pursuant to any Environmental Laws.
(c) Except as set forth in Part C. of Schedule 4.13, each of the
-------------
Company and its Subsidiaries has obtained all material permits, licenses or
other authorizations required for the conduct of their respective operations
under all applicable Environmental and Asbestos Laws and each such authorization
is in full force and effect.
-50-
(d) Except as set forth in Part D. of Schedule 4.13, each of Company
-------------
and its Subsidiaries complies in all material respects with all laws and
regulations relating to equal employment opportunity and employee safety in all
jurisdictions in which it is presently doing business, and Company will use its
reasonable best efforts to comply, and to cause each of its Subsidiaries to
comply, with all such laws and regulations which may be legally imposed in the
future in jurisdictions in which Company or any of its Subsidiaries may then be
doing business.
SECTION 4.14. Possession of Franchise, Licenses, Etc. Except as set
--------------------------------------
forth on Schedule 4.14, each of Company and its Subsidiaries possesses all
-------------
franchises, certificates, licenses, permits and other authorizations from
governmental political subdivisions or regulatory authorities, that are
necessary in any material respect for the ownership, maintenance and operation
of its properties and assets, and neither Company nor any of its Subsidiaries is
in violation of any thereof in any material respect.
SECTION 4.15. Intellectual Property. Except as set forth on Schedule
--------------------- --------
4.15, each of Company and its Subsidiaries owns or has the right to use all
----
patents, trademarks, service marks, trade names, copyrights, licenses and other
rights, free from burdensome restrictions, which are necessary for the operation
of its business as presently conducted. Nothing has come to the attention of
Company, any of its Subsidiaries or any of their respective directors and
officers to the effect that (i) any product, process, method, substance, part or
other material presently contemplated to be sold by or employed by Company or
any of its Subsidiaries in connection with its business may infringe any patent,
trademark, service xxxx, trade name, copyright, license or other right owned by
any other Person, (ii) there is pending or threatened any claim or litigation
against or affecting Company or any of its Subsidiaries contesting its right to
sell or use any such product, process, method, substance, part or other material
or (iii) there is, or there is pending or proposed, any patent, invention,
device, application or principle or any statute, law, rule, regulation, standard
or code which would prevent, inhibit or render obsolete the production or sale
of any products of, or substantially reduce the projected revenues of, or
otherwise materially adversely affect the business, condition or operations of,
Company or any of its Subsidiaries.
SECTION 4.16. Insurance Coverage. Each property of the Company or any
------------------
of its Subsidiaries is insured within terms reasonably acceptable to the Banks
for the benefit of the Company or a Subsidiary of the Company in amounts deemed
adequate by the Company's management and no less than those amounts customary in
the industry in which the Company and its Subsidiaries operate against risks
usually insured against by Persons operating business similar to those of the
Company or its Subsidiaries in the localities where such properties are located,
and the Agent has been named loss payee or additional
-51-
insured, as its interest may appear, on all such policies. Attached as Schedule
--------
4.16 hereto are certificates evidencing such insurance.
----
SECTION 4.17. Labor Matters. Except as set forth on Schedule 4.17, the
------------- -------------
Company and its Subsidiaries have experienced no strikes, labor disputes, slow
downs or work stoppages due to labor disagreements which have had, or would
reasonably be expected to have, a Materially Adverse Effect, and, to the best
knowledge of Company's executive officers, there are no such strikes, disputes,
slow downs or work stoppages threatened against any Company or any of Company's
Subsidiaries. The hours worked and payment made to employees of the Company and
its Subsidiaries have not been in violation in any material respect of the Fair
Labor Standards Act or any other applicable law dealing with such matters. All
payments due from the Company and its Subsidiaries, or for which any claim may
be made against the Company or any of its Subsidiaries, on account of wages and
employee health and welfare insurance and other benefits have been paid or
accrued as liabilities on the books of the Company and its Subsidiaries where
the failure to pay or accrue such liabilities would reasonably be expected to
have a Materially Adverse Effect.
SECTION 4.18. Intercompany Loans. All intercompany indebtedness owned
------------------
by the Company or any of its Subsidiaries or owed by a U.S. Subsidiary to the
Company is evidenced by an Intercompany Note, which Intercompany Note has been
duly authorized and approved by all necessary corporate and shareholder action
on the part of the parties thereto, and constitutes the legal, valid and binding
obligations of the party thereto, enforceable against it in accordance with the
terms of the Intercompany Note, except as may be limited by Bankruptcy Law and
by general principles of equity. There are no restrictions on the power of the
Company or any of its Subsidiaries to repay the indebtedness evidenced by any
Intercompany Note except restrictions on the Company contained herein and in the
Barclays Agreement.
SECTION 4.19. Disclosure. Neither this Agreement, any Loan Document
----------
nor any other document, certificate or statement furnished to the Banks or the
Agent by or on behalf of the Company or any Guarantor in connection herewith
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein and therein not
misleading. There is no fact peculiar to the Company or any of its Subsidiaries
which materially adversely affects or in the future may (so far as the Company
can now foresee) materially adversely affect the business, property or assets,
or financial condition of the Company or any of its Subsidiaries which has not
been set forth in this Agreement, the Loan Documents or in the other documents,
certificates and statements furnished to the Banks or the Agent by or on behalf
of the Company or any Guarantor prior to the date hereof in connection with the
transactions contemplated hereby.
-52-
SECTION 4.20. Partially Owned Subsidiaries. The Company and its
----------------------------
Subsidiaries own 50% of the issued and outstanding shares of stock of Law/Xxxxx,
Inc., and Envirosource Incorporated. Law Engineering and Environmental Services,
Inc. owns 50% of the issued and outstanding membership interests of Law/Spear,
LLC, a Georgia limited liability company. The Company and its Subsidiaries do
not own or control sufficient outstanding capital stock with the power to vote
to elect a majority of the board of directors of Law/Xxxxx, Inc. and
Envirosource Incorporated. The organizational documents of Law/Spear, LLC do not
permit Law Engineering and Environmental Services, Inc., without the consent of
the other persons holding membership interests of Law/Spear, LLC, to cause
Law/Spear, LLC to guaranty the Obligations or to xxxxx x xxxx in its assets in
favor of the U.S. Collateral Agent, nor do the organizational documents of
Law/Spear, LLC permit Law Engineering and Environmental Services, Inc., without
the consent of the other persons holding membership interests of Law/Spear, LLC,
to amend the organizational documents to provide such a guarantee or grant such
a lien. The fair market value of all of the assets of Law/Xxxxx, Inc. is
approximately $10,000, the fair market value of all assets of Envirosource
Incorporated is less than $25,000 and the fair market value of all assets of
Law/Spear, LLC is less than $550,000.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
So long as any Note shall remain unpaid or any Bank shall have any
Commitment hereunder, unless the Required Banks shall otherwise consent in
writing:
SECTION 5.01. Use of Proceeds. The proceeds of all Borrowings will be
---------------
used by the Company as provided in Section 2.12. None of the proceeds of any
Borrowing shall be used, directly or indirectly, to purchase or carry, or to
reduce or retire or refinance any credit incurred to purchase or carry, any
"margin security" or "margin stock" (within the meaning of the regulations of
the Board of Governors of the Federal Reserve System) or to extend credit to
others for the purpose of purchasing or carrying any such "margin security" or
"margin stock" or for any other purpose that might deem this transaction as a
"purpose credit" (within the meaning of the regulations of the Board of
Governors of the Federal Reserve System). If requested by any Bank, the Company
will furnish to such Bank statements in conformity with the requirements of
Federal Reserve Form U-1 referred to in Regulation U.
-53-
SECTION 5.02. Reporting Covenants. The Company will furnish to each of
-------------------
the Banks:
(a) as soon as available and in any event no later than 120 days after the
end of each fiscal year of the Company, an audited consolidated balance sheet of
the Company and its Subsidiaries as of the close of such fiscal year, and the
related audited consolidated statements of income and cash flow of the Company
and its Subsidiaries for such fiscal year, all in reasonable detail and with (1)
an unqualified opinion of Ernst & Young or other independent certified public
accountants of recognized standing selected by the Company and satisfactory to
the Required Banks and (2) a certificate (with supporting details) from such
accountants stating whether anything has come to their attention during their
audit that causes them to believe that the Company has failed to comply with the
covenants set forth in Article VII of the Credit Agreement and the equivalent
sections of the Barclays Agreement, and as soon as available and in any event no
later than 160 days after the end of each fiscal year of the Company, the
management letter prepared in connection with such audited financial statements,
provided that the Company may make a change in its accounting principles in any
fiscal year, so long as (w) the Required Banks shall consent thereto (which
consent shall not be unreasonably withheld), (x) such change or changes are
clearly reflected in the annual audit report, (y) any principle has been
concurred in by the Company and the Company's independent certified public
accountants and is in accordance with generally accepted accounting principles,
and (z) this Agreement has been amended to the extent necessary to reflect such
changes in the financial covenants and other terms and conditions of this
Agreement;
(b) (1) as soon as available and in any event within 30 days after the end
of each fiscal month of each fiscal year of the Company, (A) a consolidated
balance sheet of the Company and its Subsidiaries as of the close of such month
and consolidated statements of income and cash flow for such month and for the
year-to-date, with comparisons to the forecasts and the actual performance by
the Company and its Subsidiaries for equivalent periods of the previous year,
all in reasonable detail and in accordance with GAAP, subject to usual and
customary year end audit and adjustments and footnote disclosures, (B) a
certificate (with supporting details) in the form of Schedule 5.02(b)(1) hereto,
-------------------
of the Chief Financial Officer stating that to the best of his knowledge no
Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action which is
proposed to be taken with respect thereto, and (C) accounts payable, accounts
receivable and work in process reports in the form reasonably acceptable to the
Banks, together with a brief commentary summarizing these reports, the balance
sheet and the statements of income and cash flow, and (2) as soon as available
and in any event no later than the Borrowing Base Reporting Date for each fiscal
month of each fiscal year of the Company, a Borrowing Base Certificate hereto as
of the close of the immediately preceding fiscal month;
-54-
(c) as soon as available and in any event within 45 days after the end of
each fiscal quarter of each fiscal year of the Company (1) a certificate in the
form of Schedule 5.02(c) hereto by the Chief Financial Officer of the Company
----------------
accompanied with the Company's Form 10-Q (with quarterly financial statements)
with respect to such fiscal quarter duly filed with the Securities and Exchange
Commission, (2) integrated financial forecasts for the immediately succeeding
twelve-month period, which forecasts shall be updated to reflect actual
historical performance data reported as of the most recently ended fiscal
quarter and to reflect any changes in future expected performance, and (3) a
backlog report indicating as of the close of such fiscal quarter the amount of
uncommenced work of Xxxx Limited;
(d) promptly upon the approval of its board of directors and in any event
within 45 days after the end of each fiscal year of the Company, a capital
expenditures budget for the succeeding fiscal year, in reasonable detail;
(e) as soon as available and in any event within 45 days of the end of
each fiscal month of the Company, a report listing all employees of the Company
or its Subsidiaries that are shareholders of the Company and that left
(voluntarily or involuntarily) employment of the Company or any of its
Subsidiaries during such month, indicating the number of shares of stock of the
Company held by each such shareholder and whether such shareholder executed a
promissory note in favor of SunTrust Bank, Atlanta in connection with the
purchase of any shares of stock of the Company; and
(f) with reasonable promptness, such further information regarding the
business, affairs and financial condition of the Company or any of its
Subsidiaries as any Bank may reasonably request.
SECTION 5.03. Maintenance of Books; Inspection of Property and
------------------------------------------------
Records. Each of the Company and the Guarantors shall, and shall cause each of
-------
its Subsidiaries to, keep proper books of record and account containing complete
and accurate entries in all material respects of all of their respective
financial and business transactions and prepare or cause to be prepared its
annual statements and reports in accordance with generally accepted accounting
principles. Each of the Company and the Guarantors shall, and shall cause each
of its Subsidiaries to, permit any person designated by any Bank to visit and
inspect any of its properties, corporate books and financial records, to make
copies and take extracts therefrom, and to discuss its accounts, affairs, and
finances with the principal officers of the Company and such Subsidiary during
reasonable business hours, all at such times as the Banks may reasonably
request; provided, however, that any time following the occurrence and
-------- -------
continuance of an Event of Default, no prior notice to the Company shall be
required. Each of the Company and the Guarantors shall, and shall cause each of
its Subsidiaries to, prepare or cause to be prepared its interim statements and
reports in accordance with
-55-
generally accepted accounting principles, subject to usual and customary year
end audit and adjustments and footnote disclosures.
SECTION 5.04. Maintenance of Properties. Each of the Company and the
-------------------------
Guarantors shall, and shall cause each of its Subsidiaries to, maintain,
preserve, protect and keep, or cause to be maintained, preserved, protected and
kept, its properties and every part thereof in good repair, working order and
condition, and from time to time will make or cause to be made all needful and
proper repairs, renewals, replacements, extensions, additions, betterments, and
improvements thereto, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; provided, however,
--------- --------
that the Company and its Subsidiaries shall not be under any obligation to
repair or replace any such properties which have become obsolete or have become
unsuitable or inadequate for the purpose for which they are used.
SECTION 5.05. Maintenance of Insurance. Each of the Company and the
------------------------
Guarantors shall, and shall cause each of its Subsidiaries to, (i) maintain
liability and worker's compensation insurance with financially sound and
reputable insurers (or maintain a legally sufficient, fully funded, program of
self insurance against worker's compensation liabilities), and also maintain
adequate insurance on its properties against such hazards and in at least such
amounts as is customary in the business, and (ii) name the Agent as loss payee
or additional insured, as its interest may appear, on each of such insurance
policies. At the request of any Bank, the Company will forthwith deliver an
officer's certificate specifying the details of such insurance in effect.
SECTION 5.06. Taxes and Claims. Each of the Company and the Guarantors
----------------
shall, and shall cause each of its Subsidiaries to, pay and discharge (i) all
Taxes prior to the date on which penalties attach thereto, and (ii) all claims
(including, without limitation, claims for labor, materials, supplies or
services) (collectively "Other Claims") which, if unpaid, might become a Lien
------------
upon any of its property; provided, however, that the Company and its
-------- -------
Subsidiaries shall not be required to pay and discharge any such Tax or Other
Claim so long as the legality or amount thereof shall be promptly contested in
good faith and by appropriate proceedings which effectively stay the enforcement
of any Lien and the attachment of a penalty and the Company or such Subsidiary,
as the case may be, shall have set aside appropriate reserves therefor in
accordance with generally accepted accounting principles.
SECTION 5.07. Existence and Status. Except as provided in Section
--------------------
6.04, each of the Company and the Guarantors shall, and shall cause each of its
Subsidiaries that is a corporation to, maintain its corporate existence, its
material rights, franchises and licenses (for the schedule duration thereof),
its trademarks, tradenames and service marks necessary or desirable in the
normal conduct of its business, its good standing in its state of
-56-
incorporation and its qualification and good standing as a foreign corporation
in all jurisdictions where its ownership of property or its business activities
cause such qualification to be required and the failure to do so could have a
Materially Adverse Effect. The Company shall cause each Subsidiary that is not a
corporation to maintain its present form of existence, its material rights,
franchises and licenses (for the scheduled duration thereof), its trademarks,
tradenames and service marks necessary or desirable in the normal conduct of its
business, its good standing in the jurisdiction of its constitution and its
qualification and good standing as a foreign entity in all jurisdictions where
its ownership of property or its business activities cause such qualification to
be required and the failure to do so could have a Materially Adverse Effect.
SECTION 5.08. Compliance with Laws, Etc. Each of the Company and the
-------------------------
Guarantors shall, and shall cause each of its Subsidiaries to, comply with all
Applicable Law (including, without limitation, the Environmental Laws) and
Contractual Obligations applicable to or binding on any of them where the
failure to comply with such Applicable Law and Contractual Obligations would
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.09. ERISA. The Company and the Guarantors shall, and shall
-----
cause each of its Subsidiaries to, deliver to each of the Banks:
(i) Promptly after the discovery of the occurrence thereof with
respect to any Plan, or any trust established thereunder, notice of (A) a
"reportable event" described in Section 4043 of ERISA and the regulations
issued from time to time thereunder (other than a "reportable event" not
subject to the provisions for 30-day notice to the PBGC under such
regulations), or (B) any other event which could subject the Company or any
ERISA Affiliate to any material tax, penalty or liability under Title I or
Title IV of ERISA or Chapter 43 of the Code;
(ii) At the same time and in the same manner as such notice must be
provided to the PBGC, or to a Plan participant, beneficiary or alternative
payee, any notice required under Section 101(d), 302(f)(4), 303(e),
(307)(e), 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or Section 412(f) of the
Code with respect to any Plan; and
(iii) Upon the request of any Bank, (A) true and complete copies of
any and all documents, government reports and determination or opinion
letters (if any) for any Plan, or (B) a current statement of withdrawal
liability for each Multiemployer Plan.
SECTION 5.10. Litigation. The Company shall give prompt written
----------
notice to each of the Banks of (a) any judgment entered by a court, tribunal,
administrative agency
-57-
or arbitration panel in which the amount of liability is $500,000 or more in
excess of insurance coverage, or in which the aggregate amount of liability is
$1,000,000 or more in excess of insurance coverage, and (b) any disputes which
may exist between the Company or any of its Subsidiaries and any governmental or
regulatory body, in which the amount in controversy is $500,000 or more and
which may materially and adversely affect the normal business operations of the
Company or any of its Subsidiaries or any of their respective properties and
assets. The Company shall provide each of the Banks, on a quarterly basis,
concurrently with the delivery of the information required under Section
5.02(c), the Company's internal litigation reports prepared in the course of its
business, which shall set forth each action, proceeding or claim, of which the
Company or any of its Subsidiaries has notice, which is commenced or asserted
against the Company or any of its Subsidiaries, and in which the amount claimed
or the potential liability is $500,000 or more.
SECTION 5.11. Notice of Events of Default. The Company shall deliver
---------------------------
to each of the Banks within five (5) days after any Executive Officer obtains
any knowledge of any condition, event or act which creates or causes a Default
or an Event of Default, a certificate signed by an officer of the Company or
Xxxx Limited specifying the nature thereof, the period of existence thereof and
what action the Company's or such Subsidiary proposes to take with respect
thereto.
SECTION 5.12. Stockholder Reports, etc. Contemporaneously with the
------------------------
sending or filing thereof, the Company will provide to each of the Banks copies
of all proxy statements, financial statements, and reports which the Company
sends to its stockholders, and copies of all regular, periodic, and special
reports, and all statements which the Company files with the Securities and
Exchange Commission or any governmental authority which may be substituted
therefor, or with any national securities exchange.
SECTION 5.13. Future Guarantors and Pledgors.
------------------------------
(a) Subject to any prohibitions or limitations as to power or
authority imposed by law applicable to any such Subsidiary, the Company and the
Guarantors shall cause (1) each Person incorporated or otherwise organized in
the United States that hereafter becomes a Subsidiary (an "Additional
----------
Guarantor") to become a Guarantor under this Agreement, the Swap Guaranty and
---------
the Barclays Guaranties and to pledge all of its assets, including, to the
extent owned by such Guarantor, 100% of the stock of other U.S. Subsidiaries,
65% of the stock of any International Subsidiaries (other than those
Subsidiaries listed on Schedule 1.01(e)) and all Intercompany Notes, to the U.S.
-----------------
Collateral Agent upon the creation of such Additional Guarantor by executing and
delivering to the U.S. Collateral Agent the Supplemental Documents; provided,
--------
however, that none of the Partially Owned Subsidiaries shall be required to
-------
become a Guarantor under this Agreement or pledge any of its assets under the
U.S. Security Documents unless and until the Company
-58-
shall beneficially own, directly or indirectly, 100% of the outstanding
common stock (exclusive of directors' qualifying shares) of such Partially
Owned Subsidiary; and (2) each Person that owns the stock of the Additional
Guarantor or holds any Intercompany Notes executed by the Additional
Guarantor to pledge and deliver such stock and Intercompany Notes to the
U.S. Collateral Agents, together with a supplement to the Company Pledge
Agreement or Guarantor Pledge Agreement, as the case may be, and with stock
powers or other appropriate instruments of transfer executed by such Person
in blank.
(b) If an Additional Guarantor is a Material U.S. Subsidiary, the
Additional Guarantor shall also deliver to the U.S. Collateral Agent and
the Banks, simultaneously with the Supplemental Documents, (1) Certified
Requests for Information or Copies (Form UCC-11) or equivalents reports,
showing that there are no effective financing statements which name the
Additional Guarantor as debtor and (2) an opinion rendered by legal counsel
to such Additional Guarantor and the Person required to pledge the shares
of stock of the Additional Guarantor under the U.S. Security Documents to
the U.S. Collateral Agent, addressing the types of matters set forth in
Exhibit F-1, Exhibit F-2 and Exhibit F-3(A) hereof and such other matters
----------- ----------- --------------
as the Required Banks may reasonably request, addressed to the Agent and
the Banks.
(c) The Company and the Guarantors shall cause each Person (an
"Additional Pledgor") that hereafter acquires the stock of or other
------------------
ownership interest in any Subsidiary that is incorporated or otherwise
organized in a country or state other than the United States and which (1)
has assets comprising five percent (5%) or more of the assets of the
Company and its Subsidiaries, taken as a whole, or (2) has revenues
comprising five percent (5%) or more of the revenues of the Company and its
Subsidiaries, taken as a whole, to pledge 65% of such stock or other
ownership interest to the U.S. Collateral Agent under documents in form and
substance acceptable to the Banks, together with an opinion rendered by
legal counsel to such Additional Pledgor to the Banks, addressing such
issues are requested by the Banks, in form and substance satisfactory to
the Banks, and such evidence of corporate or partnership approval as the
Banks shall require.
SECTION 5.14. Ownership of Guarantors. The Company and its
-----------------------
Subsidiaries that own Guarantors shall maintain their percentage ownership
of such Guarantors existing as of the date hereof and shall not decrease
its ownership percentage in each Additional Guarantor pursuant to Section
5.13 after the date hereof, as such ownership exists at the time such
Additional Guarantor becomes a Guarantor hereunder.
SECTION 5.15. 401(k) Plan. To the extent that an employer
-----------
stock option is available under the 401(k) Plan, the Company shall
designate that all employer matching and profit-sharing contributions be
made in common stock of the Company or in cash held
-59-
temporarily in trust until converted into common stock of the Company, which
conversion shall occur at least quarterly.
SECTION 5.16. Law International Sales Company. No later than
-------------------------------
September 30 of each year, the Company and the Guarantors shall cause Law
International Sales Company, a U.S. Virgin Island corporation, to issue and pay
a dividend to Law International, Inc. in a amount equal to the intercompany
indebtedness which has accrued since September 30 of the prior year.
SECTION 5.17. Lex. The Company shall cause Lex Insurance to issue
---
dividends at least annually to the Company in such amounts, if any, such that
Lex Insurance maintains only the minimum capital level required by law and
regulation and by Lex Insurance's underwriters, and shall not permit Lex
Insurance to xxxxx x Xxxx or permit any Lien to exist on the real property and
other assets owned by Lex Insurance.
SECTION 5.18. Refinancing of FLECBOA. No later than April 15, 1997,
----------------------
the Company shall (1) cause all agreements relating to FLECBOA to be terminated;
(2) cause ownership of fee title to the property leased by the Company or any of
its Subsidiaries in connection with FLECBOA to be transferred to the Company or
such Subsidiary; (3) have all Liens on the collateral securing FLECBOA released,
other than Liens permitted under Section 6.02; and (4) execute and deliver, or
cause such Subsidiary to executed and deliver, to the Agent a Mortgage, in form
and substance reasonably satisfactory to the Required Banks, pursuant to which
such collateral shall be pledged to the U.S. Collateral Agent for the benefit of
the Banks and Barclays Bank PLC, together with (A) fixture filings recorded in
such jurisdictions as the Required Banks reasonably deem necessary to perfect
the security interest granted thereunder, (B) a title insurance policy with
respect to such collateral showing that the U.S. Collateral Agent has a valid
first priority lien with respect to the Mortgaged Property located in Escambia
Country, Florida subject to no encumbrances other than such Mortgage and Liens
permitted pursuant to Section 6.02 hereof, (C) such environment reports as the
Required Banks shall reasonably require, (D) such legal opinions addressing such
issues as the Required Banks may reasonably require addressed to the Agent and
the Banks, and (E) all other documents, instruments, and certificates reasonably
required by the Required Banks in connection therewith.
-60-
ARTICLE VI
NEGATIVE COVENANTS
------------------
So long as any Note shall remain unpaid or any Bank shall have any
Commitment hereunder, without the written consent of the Required Banks (unless
otherwise provided herein):
SECTION 6.01. Indebtedness and Rental Obligations. The Company and the
-----------------------------------
Guarantors shall not, and shall not permit any Subsidiary of the Company or
joint venture in which the Company or any of its Subsidiaries is a party to,
create, incur, assume or suffer to exist, any Indebtedness or any operating
lease and other rental obligations, not existing as of the date of this
Agreement and disclosed on Schedule 4.12 hereto, except
-------------
(a) all Indebtedness owing to the Banks and the Agent under this
Agreement and the Notes;
(b) rental obligations which involve either real estate or personalty
if the aggregate of all rental payments by the Company and its Subsidiaries
shall not exceed per fiscal year 8.0% of Net Fees Budgeted for such fiscal
year;
(c) Indebtedness not evidenced by a promissory note or other
instrument, incurred in the normal course of business and payable on
customary terms, including, but not limited to, salaries and bonuses and
general overhead expenses;
(d) Indebtedness existing on the Closing Date and evidenced by a
Shareholder Note; provided, however, that (1) such Indebtedness may not be
-------- -------
refinanced after the Closing Date except with the consent of and upon terms
satisfactory to the Banks and Barclays, (2) such Shareholder Notes may not
be amended or otherwise modified in any material respect, other than
modifications to extend the scheduled payment of any interest or principal
or reduce the interest rate payable thereunder, and (3) the Company may not
make principal payments on any of such Shareholder Notes except to the
extent expressly permitted in Section 6.03(b);
(e) Indebtedness incurred after the Closing Date for the repurchase
of common stock of the Company, provided that (1) such Indebtedness shall
not exceed in principal amount an aggregate of (A) $250,000, less (B) the
----
amount of any principal of the Shareholder Notes paid in cash by the
Company on or after the Closing Date, plus (C) an amount equal to the net
----
proceeds of sales of stock of the Company at any one time outstanding, (2)
after giving effect to such incurrence of
-61-
Indebtedness and corresponding stock repurchase, the Company shall be in
compliance with Section 6.01, (3) such Indebtedness shall be evidenced by a
Shareholder Note, and all principal and interest with respect to such
Indebtedness shall be expressly subordinated to the prior payment in full
of the Obligations, in substantially the form set forth on Schedule 6.01
-------------
hereto, and (4) no principal amount of such Indebtedness shall be due and
payable on or prior to the Commitment Termination Date.
(f) obligations of the Company and the Guarantors under and with
respect to the Interest Rate Contracts; provided that the maximum secured
--------
exposure of the Interest Rate Contracts is $200,000;
(g) endorsements of negotiable instruments for deposit or collection
in the ordinary course of business;
(h) guarantees and endorsements of employee stock purchase loans, and
other loans to employees, financed by SunTrust in aggregate principal
amount not exceeding $1,250,000;
(i) Indebtedness of any Guarantor owing to the Company and
Indebtedness of the Company owing to any Guarantor, which Indebtedness
shall be evidenced by Intercompany Notes pledged to the U.S. Collateral
Agent pursuant to the Company Pledge Agreement or the Guarantor Pledge
Agreement, as the case may be, provided such Indebtedness is subject to the
provisions of Section 11.09;
(j) Indebtedness arising under the BGI Facility and the Barclays
Revolver;
(k) any guarantee of Indebtedness expressly permitted under the terms
of this Section 6.01;
(l) the HKS Synthetic Stock; and
(m) Indebtedness in the amount of $310,000 owed in respect of the
previous purchase of the stock of Prointec, a Spanish corporation; provided
that such Indebtedness shall be repaid no faster than, or in greater
amounts than, in twenty-four equal monthly installments, commencing as of
January, 1996.
SECTION 6.02. Limitation on Liens and Security Interests. The Company
------------------------------------------
and the Guarantors shall not, and shall not permit their respective Subsidiaries
to, create, incur, assume or suffer to exist, any Lien or other encumbrance of
any kind on any of its properties or assets, real or personal, wherever located,
including assets hereafter acquired, except
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(a) Liens existing on the date hereof and described on Schedule 6.02;
-------------
(b) Liens in favour of the U.S. Collateral Agent or the International
Collateral Agent;
(c) Liens for Taxes not yet payable or being contested in good faith and
by appropriate proceedings;
(d) deposits or pledges to secure payments of workmen's compensation,
unemployment insurance, old age pension and other social security obligations;
(e) mechanics', carriers', workmen's, repairmen's, landlord's, or other
Liens arising in the ordinary course of business securing obligations which are
not overdue for a period longer than 60 days, or which are being contested in
good faith by appropriate proceedings;
(f) pledges or deposits to secure performance in connection with bids,
tenders, contracts (other than contracts for the payment of money) or leases
made in the ordinary course of the business of the Company or any of its
Subsidiaries;
(g) deposits to secure, or in lieu of, surety and appeal bonds to which
the Company or a Subsidiary of the Company is a party;
(h) deposits in connection with the prosecution or defense of any claim in
any court or before any administrative commission or agency;
(i) Liens arising out of judgments or awards with respect to which the
Company or a Subsidiary of the Company at the time shall in good faith be
diligently prosecuting an appeal or proceedings for review and with respect to
which it shall have secured a stay of execution pending such appeal or
proceedings for review;
(j) purchase money security interests, and leases in the nature thereof,
for equipment and machinery or mortgages for real estate, in each case purchased
in the ordinary course of business and to be used in the conduct of its business
provided that any such security interest or mortgage secures only the repayment
--------
of the purchase price of such machinery, equipment or real estate and any such
lease obligations do not exceed the purchase price of such machinery or
equipment;
(k) Liens granted in any Intercompany Note in the form of Exhibit B-2
-----------
hereto, provided that such Intercompany Notes are pledged to the U.S. Collateral
Agent, all related UCC-1 financing statements are assigned to the U.S.
Collateral
-63-
Agent and such Lien is subordinated to the first priority Lien granted to
the U.S. Collateral Agent in the Security Documents; and
(l) Liens with respect to cash collateral securing the BGI Exposure,
to the extent permitted under Section 6.5 of the Intercreditor Agreement,
and any other cash collateral securing any of the Letters of Credit and the
BGI Exposure obtained in accordance with the Intercreditor Agreement.
SECTION 6.03. Dividends; Other Restricted Payments.
------------------------------------
(a) In any fiscal year of the Company, the Company shall not pay or
declare any dividends on any of its capital stock, other than dividends on
Permitted Preferred Stock.
(b) In any fiscal year of the Company, the Company shall not (i)
redeem, repurchase, retire or make similar payments with respect to any of its
shares of capital stock in cash or cash equivalents or (ii) pay any principal
of, premium, if any, or redeem, purchase, retire or make any similar payment
with respect to, any Subordinated Indebtedness; provided, however, that (l) the
--------- --------
Company may pay principal of the Shareholder Notes in an aggregate amount not to
exceed (A) $250,000, less (B) the stated principal amount of any
----
Shareholder Notes issued by the Company after the Closing Date in connection
with a repurchase of its common stock, (2) the Company may pay interest on the
Shareholder Notes, (3) the Company may redeem outstanding Shareholder Notes from
Persons holding such Shareholder Notes on the Closing Date to the extent it
issues Permitted Preferred Stock in exchange therefor, (4) the Company may
repurchase shares of its common stock to the extent permitted by Section 6.01(e)
and (5) HKS or HKS Trust may repurchase shares of HKS Synthetic Stock when
required with proceeds of the Barclays Revolver in an amount not to exceed
$1,000,000 in the aggregate since June 30, 1995.
SECTION 6.04. Merger; Joint Ventures; Sale of Assets; Acquisitions.
----------------------------------------------------
The Company and the Guarantors shall not, and shall not permit any of their
respective Subsidiaries to:
(a) merge or consolidate with any other entity, except that this
Section 6.04 shall not apply to (i) any merger or consolidation of the
Company or a Guarantor with any Subsidiary of the Company provided that the
Company or such Guarantor shall be the continuing entity, and (ii) any
merger or consolidation of any Subsidiary of the Company (other than a
Guarantor) with any other Subsidiary of the Company (other than a
Guarantor) if, after giving effect thereto, the continuing entity is a
wholly-owned Subsidiary of the Company;
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(b) enter into a partnership or joint venture with any other entity;
provided, however, that so long as no Event of Default has occurred, the
-------- -------
Company or any of its Subsidiaries may request that the Banks consent to
its entering into a partnership or joint venture for the purposes of
carrying on its business and the Banks agree to consider any such request
in conjunction with the consideration of such request by Barclays Bank PLC
under the Barclays Agreement;
(c) sell, lease, transfer or otherwise dispose of any assets,
including any assets of any International Subsidiaries, except that this
Section 6.04 shall not prohibit any disposition of (i) any asset if on the
date such asset is sold, the Asset Value of all asset sales occurring after
the Closing Date (excluding the Asset Value of the property permitted to be
sold in clauses (x) and (y) of the proviso below), taking into account the
Asset Value of the proposed asset sale, would not exceed on an aggregate
basis five percent (5%) of the Consolidated Net Worth of the Company and
its Subsidiaries on the Closing Date and such sale is in the ordinary
course of business or (ii) any obsolete or retired property not used or
useful in its business.
(d) purchase, lease or otherwise acquire for cash, stock or other
consideration, the stock of any Person or all or any substantial portion of
the assets of any Person where such stock, assets or other consideration
have an aggregate fair market value of more than $1,000,000, except that
this Section 6.04 shall not apply to repurchases of stock permitted
pursuant the proviso in to Section 6.03(b)(3) hereof.
SECTION 6.05. Sale and Leaseback. The Company and the Guarantors shall
------------------
not, and shall not permit any of their respective Subsidiaries to, enter into
any transaction with any other entity whereby such other entity leases assets
sold or otherwise transferred to it by the Company or such Subsidiary, unless
all proceeds obtained transferred to it by the Company or such Subsidiary,
unless all proceeds obtained from such transaction are immediately paid to the
Intercreditor Agreement Agent for application in accordance with the terms of
the Intercreditor Agreement.
SECTION 6.06. Investments, Loans, Etc. The Company and the Guarantors
-----------------------
shall not, and shall not permit any of their respective Subsidiaries to, make,
permit or hold any Investments in any Person, or otherwise acquire or hold any
Subsidiaries, other than:
(a) Investments in Subsidiaries existing on the Closing Date;
(b) direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof, in each
case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
-65-
(c) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by a nationally recognized
credit rating agency;
(d) time deposits maturing within one year from the date of creation
thereof with, including certificates of deposit issued by any Bank and any
office located in the United States or England of any bank or trust company
which is organized under the laws of the United States or England or any
state thereof and has total assets aggregating at least $500,000,000,
including without limitation, any such deposits in Eurodollars issued by a
foreign branch of any such bank or trust company;
(e) Investments made by Plans;
(f) Loans to the Company or other Subsidiaries (excluding HKS,
Law/Xxxxx, Inc., Envirosource Incorporated, IHT Xxxxxx Xxxx GmbH, Law
International Sales Company or any of their respective Subsidiaries) to the
extent such loans are evidenced by Intercompany Notes, pledged to the U.S.
Collateral Agent, subordinated to the extent required in Section 11.09, and
otherwise on terms and conditions acceptable to the Required Banks, or
loans to International Subsidiaries which are "Chargors" under the Barclays
Agreement; and
(g) Employee stock purchase loans, and other loans to employees,
acquired by the Company in connection with honoring its guarantee of such
loans permitted under Section 6.01(g) hereof.
SECTION 6.07. Nature of Business. The Company and the Guarantors shall
------------------
not, and shall not permit any of their respective Subsidiaries to, engage in any
business or businesses other than those engaged in by the Company or such
Subsidiary on the date hereof; provided, however, that nothing herein contained
-------- -------
shall prevent the Company or any of its Subsidiaries (i) from expanding the
location of its business or businesses (A) in the United States, (B) in those
foreign countries in which the Company or such Subsidiary engages in business on
the date hereof or (C) in any other foreign country if the Company (1) gives the
Banks prompt notice thereof and (2) if the aggregate amount of assets moved or
to be moved to such new country equals or exceeds five percent (5%) of the
Consolidated Net Worth of the Company, executes such additional security
documents and delivers such legal opinions as the Banks and Barclays may
reasonably require, or (ii) from ceasing or omitting to exercise any rights,
licenses, permits, or franchises which in good faith in the judgment of the
Company or such Subsidiary can no longer be profitably exercised.
SECTION 6.08. Sale of Subsidiaries. The Company and the Guarantors
--------------------
shall not, and shall not permit any of their respective Subsidiaries to, sell or
otherwise dispose of any shares of capital stock of or other ownership interest
in any Subsidiary of the Company
-66-
(except in connection with a merger or consolidation permitted by Section
6.04(a)), or permit any Subsidiary of the Company to issue any additional shares
of its capital stock or other incidents of ownership, except on a pro rata basis
--- ----
to all its stockholders, partners or owners, as the case may be and provided
that any such additional shares of capital stock or other incidents of ownership
issued to the Company, any Guarantor or Additional Pledgor are pledged to the
U.S. Collateral Agent; provided, however, that if the issuer is an International
-------- -------
Subsidiary (other than those Subsidiaries listed on Schedule 1.01(e) hereto),
----------------
65% of such additional shares of capital stock or other incidents of ownership
shall be pledged to the U.S. Collateral Agent and 35% of such additional shares
of capital stock or other incidents of ownership shall be pledged to the
International Collateral Agent.
SECTION 6.09. Compliance with ERISA. The Company and the Guarantors
---------------------
shall not take or fail to take, or permit any of their Subsidiaries or ERISA
Affiliates to take or fail to take, any action with respect to a Plan including,
but not limited to, (i) establishing any Plan, (ii) amending any Plan, (iii)
terminating or withdrawing from any Plan, or (iv) incurring an "amount of
unfunded benefit liabilities", as defined in Section 4001(a)(18) of ERISA, or
any withdrawal liability under Title IV of ERISA, where such action or failure
could have a Materially Adverse Effect, result in a Lien on the property of the
Company or any of its Subsidiaries or require the company or any of its
Subsidiaries to provide any security, except to the extent permitted pursuant to
Section 6.02 hereof.
SECTION 6.10. Negative Pledges. The Company and the Guarantors shall
----------------
not, and shall not permit any of their respective Subsidiaries to, agree or
covenant with any Person to restrict in any way its ability to grant any Lien on
its assets, except that this Section 6.10 shall not apply to (i) any covenants
contained in this Agreement or the Security Documents, (ii) any covenants
contained in the Barclays Agreement, and (iii) covenants and agreements made in
connection with Liens described in Section 6.02(j) but only if such covenant or
agreement applies solely to the specific machinery, equipment or real estate to
which such Lien relates.
SECTION 6.11. Transactions with Affiliates. The Company and the
----------------------------
Guarantors shall not, and shall not permit any of their respective Subsidiaries
to:
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in
the ordinary course of business, with any Affiliate of the Company or any
of its Subsidiaries (but excluding any Affiliate which is the Company or
any of its Subsidiaries), other than on terms and conditions substantially
as favorable to the Company or such Subsidiary as would be obtained by the
Company or such Subsidiary at the time in a comparable arm's-length
transaction with a Person other than an Affiliate.
-67-
(b) Convey or transfer to any other Person (including the Company or
any of its Subsidiaries) any real property, buildings, or fixtures used in
the manufacturing or production operations of the Company or any of its
Subsidiaries, or convey or transfer to the Company or any of its
Subsidiaries any other assets (excluding conveyances or transfers in the
ordinary course of business) if at the time of such conveyance or transfer
any Default or Event of Default exists or would exist as a result of such
conveyance or transfer.
SECTION 6.12. Limitations on Payment Restrictions. The Company and the
-----------------------------------
Guarantors shall not, and shall not permit any of their respective Subsidiaries
to, create or otherwise cause or suffer to exist or become effective, any
consensual encumbrance or restriction on the ability of the Company or any of
its Subsidiaries to (i) pay dividends or make any other distributions on stock
of the Company or any of its Subsidiaries, (ii) pay any indebtedness owed to the
Company or any of its Subsidiaries, or (iii) transfer any of its property or
assets to the Company or any of its Subsidiaries except any consensual
encumbrance or restriction existing under the Loan Documents or the Barclays
Agreement.
SECTION 6.13. Actions Under Certain Documents. The Company and the
-------------------------------
Guarantors shall not, and shall not permit any of their respective Subsidiaries
to, modify, amend, restate, cancel, refinance or rescind the Barclays Agreement,
the Intercompany Notes, any Shareholder Note or any other agreements or
documents evidencing or governing Subordinated Indebtedness, without the prior
written consent of the Banks and Barclays.
SECTION 6.14. Law Companies Group, Ltd. The Company shall not permit
------------------------
Law Companies Group, Ltd, to issue any additional Class A ordinary stock or
Class B ordinary stock subject to a put or a call or honor any put or any call
on such stock except with respect to the $50,000 worth of Class A ordinary stock
already issued by Law Companies Group, Ltd. and held by Xxxx Limited, nor shall
it permit Law Companies Group, Ltd. to issue any preference shares subject to a
put or honor any put on such preference shares.
SECTION 6.15. HKS. The Company, the Guarantors and all other
---
Subsidiaries of the Company, including the International Subsidiaries, but
excluding HKS, shall not make or permit to exist investments (whether by capital
contribution, loan or otherwise) into HKS, HKS Trust or any of their respective
Subsidiaries.
SECTION 6.16. Additional Classes of Shares. The Company shall not
----------------------------
issue any new classes of capital stock (including any class of preferred stock)
other than those classes outstanding on the Closing Date and Permitted Preferred
Stock to the extent issued to Persons holding Shareholder Notes on the Closing
Date in exchange for all or a portion of such Shareholder Notes.
-68-
ARTICLE VII
FINANCIAL COVENANTS
-------------------
So long as any Note shall remain unpaid or any Bank shall have any
Commitment hereunder:
SECTION 7.01. Senior Debt Coverage Ratio. The Company shall not
--------------------------
permit the Senior Debt Coverage Ratio as of the last day of (1) the fiscal
quarters ending March 31, 1997 and June 30, 1997 to be greater than 2.0 to 1.0
and (2) each fiscal quarter ending thereafter to be greater than 1.75 to 1.0.
SECTION 7.02. Fixed Charge Coverage Ratio. The Company shall not
---------------------------
permit the Fixed Charge Coverage Ratio as of the last day of any fiscal quarter
of the Company, commencing with the fiscal quarter ending March 31, 1997, to be
less than 0.95 to 1.0.
SECTION 7.03. Senior Debt Leverage Ratio. The Company shall not
--------------------------
permit the Senior Debt Leverage Ratio as of the last day of any fiscal quarter,
commencing with the fiscal quarter ending March 31, 1997, to be greater than
0.70 to 1.0.
SECTION 7.04. Minimum Net Worth. The Company shall not permit
-----------------
Consolidated Net Worth as of the last day of any fiscal quarter, commencing with
the fiscal quarter ending March 31, 1997, to be less than the sum of (a)
$16,500,000 plus (b) 75% of Consolidated Net Income (but not loss) for the
----
period beginning January 1, 1997 and ending on the last day of such fiscal
quarter, plus (c) the net proceeds of any equity offering made by the Company or
----
its Subsidiaries, minus (d) the aggregate amount of repurchases by the Company
-----
of its common stock in excess of $250,000 but only to the extent approved by all
Banks and Barclays.
SECTION 7.05. Domestic Senior Debt Coverage Ratio. The Company shall
-----------------------------------
not permit the Domestic Senior Debt Coverage Ratio as of the last day of any
fiscal quarter, commencing with the fiscal quarter ending March 31, 1997, to be
greater than 2.75 to 1.0.
SECTION 7.06. Domestic Interest Coverage Ratio. The Company shall
--------------------------------
not permit the Domestic Interest Coverage Ratio as of the last day of (1) the
fiscal quarter ending March 31, 1997 to be less than 0.7 to 1.0, (2) the fiscal
quarter ending June 30, 1997 to be less than 1.0 to 1.0 and (2) the fiscal
quarters ending thereafter to be less than 1.15 to 1.0.
-69-
SECTION 7.07. Minimum Domestic Cash Flow. The Company shall not permit
--------------------------
EBITDA of the U.S. Subsidiaries for the rolling four-quarter period ending on
the last day of each fiscal quarter of the Company to be less than $11,000,000.
SECTION 7.08. Minimum International Cash Flow. The Company shall not
-------------------------------
permit EBITDA of the International Subsidiaries for the rolling four-quarter
period ending on the last day of each fiscal quarter of the Company to be less
than the Dollar Equivalent of $7,000,000.
SECTION 7.09. Capital Expenditures. The Company and the Guarantors
--------------------
shall not make, or permit any of their respective Subsidiaries to make, any
expenditures for capital assets in excess of $6,000,000 during any fiscal year
of the Company; provided, however, that this limitation shall not apply to (1)
--------- --------
the refinancing of FLECBOA and any purchases of assets made in connection
therewith and (2) expenditures for corporate automobiles used by the
International Subsidiaries in an amount not to exceed (pounds) 500,00.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
------------------------------
SECTION 8.01. Events of Default. Any one or more of the following
-----------------
shall constitute an Event of Default hereunder:
(a) The Company shall fail to pay any principal amount owing pursuant
to this Agreement, the Notes or any amount owed pursuant to Section 2.15;
or
(b) The Company shall fail to pay interest or any other sum owing
pursuant to this Agreement or the Notes within five calendar days after
notice by the Agent of the amount due; or
(c) Any representation or warranty made by or on behalf of the
Company or any Guarantor to the Agent or any Bank in this Agreement, the
Company Security Agreement, the Company Pledge Agreement, the Company
Trademark Security Agreement, the Guarantors Security Agreement, the
Guarantors Pledge Agreement, the Guarantors Trademark Security Agreement
and the Mortgage shall be in any respect false or misleading as of the time
at which such representation or warranty was given, or any representation
or warranty made by or on behalf of the Company or any Guarantor to the
Agent or any Bank in any other Loan Documents or in any financial
statement, report or certificate furnished pursuant to this Agreement shall
-70-
be in any material respect false or misleading as of the time at which such
representation or warranty was made; or
(d) The Company or any Guarantor shall fail to perform or observe
any covenant or agreement contained in Sections 5.02 and 5.11, Article VI
(other than Section 6.07) and Article VII; or
(e) The Company or any Guarantor shall fail to perform or observe any
other covenant or agreement set forth in this Agreement, other than those
referred to in clauses (a), (b), (c) and (d) above, and (to the extent such
failure can be remedied) such failure of performance shall not be remedied
within ten (10) days after the earlier of the date on which (1) any
Executive Officer has actual knowledge of the facts creating or causing
such failure to perform or observe such covenant or agreement and (2) the
Agent delivers notice of such Default to the Company in accordance with
Section 11.03 of this Agreement; or
(f) Final judgment for the payment of money in excess of $100,000
or a non-monetary final judgment that has a Materially Adverse Effect
should be rendered against the Company or any of its Subsidiaries and the
same shall remain unpaid, unstayed on appeal, undischarged, or undismissed
for a period of sixty (60) days or such longer period as may be permitted
by Applicable Law during which execution may not be made provided no
judgment Lien has or continues to attach to the assets of the Company or
such Subsidiary during such longer period; or
(g) A Change of Control occurs or a Change of Management occurs; or
(h) The Company or any of its Subsidiaries fails to make any payment
as and when such payment is due upon any Indebtedness having an aggregate
unpaid principal balance in excess of $100,000, other than Indebtedness
owing or arising pursuant to this Agreement and the Notes, or any other
default, event or condition shall have occurred or exist with respect to
any such other Indebtedness, or under any agreement or instrument
evidencing, securing or related to such other Indebtedness, the effect of
which is to cause, or to permit the holder or owner of such Indebtedness to
cause, such Indebtedness or any portion thereof, to become due prior to its
stated maturity date or prior to its regularly scheduled dates of payment;
or
(i) Any involuntary petition is filed against the Company or any of
its Subsidiaries under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect and such petition shall
remain undismissed for a period of sixty
-71-
(60) days or the Company or such Subsidiary approves, consents or
acquiesces thereto; or
(j) The Company or any of its Subsidiaries makes an assignment for
the benefit of the creditors or files a voluntary petition seeking relief
under any provision of any bankruptcy, reorganization, arrangement
insolvency or readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect, or
(k) The Company incurs any liability or is exposed to any potential
liability under any employee benefit that has or would have a Materially
Adverse Effect; or
(l) An "Event of Default" shall have occurred under, and as defined
in, the Security Documents, the SunTrust Interest Rate Agreement or the
Barclays Agreement; or
(m) Any Loan Document shall become unenforceable for any reason and
the Company or any Guarantor fails to take such action as is reasonably
necessary to make such Loan Document enforceable again to the reasonable
satisfaction of the Banks (to the extent such unenforceability can be
cured) within ten (10) days after the earlier of the date on which (1) an
Executive Officer has actual knowledge of the facts creating or causing
such failure to perform or observe such covenant or agreement and (2) the
Agent delivers notice thereof to the Company in accordance with Section
11.03 of this Agreement.
SECTION 8.02. Remedies on Default.
-------------------
(a) Upon (i) the occurrence and during the continuation of an Event
of Default (other than an Event of Default described in Section 8.01(j) or (k)),
(ii) the receipt of written instructions by the Agent from any Bank and (iii)
the receipt of written approval by the Agent from (A) the Required Banks if a
Payment Default has occurred and is continuing or (B) all Banks and Barclays
Bank PLC if a Nonpayment Default has occurred and is continuing, provided,
--------
however, that if any Credit Document (as defined in the Intercreditor Agreement)
-------
has expired upon its stated maturity date (including any extension date to which
such Credit Document is extended) and the 30-day period immediately following
thereafter has lapsed, no approval other than the approval of the Bank
instructing the Agent pursuant to clause (ii) above shall be required, the Agent
shall (x) terminate all obligations of the Banks to the Company, including,
without limitation, the Commitments and all obligations to make Advances and
issue Letters of Credit under this Agreement, and (y) declare the Notes,
including, without limitation, principal, accrued interest and costs of
collection (including, without limitation, reasonable attorneys' fees if
collected by or through
-72-
an attorney at law or in bankruptcy, receivership or other judicial proceedings)
and all other Obligations immediately due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are expressly
waived.
(b) Upon the occurrence of an Event of Default under Section 8.01(j)
or (k) all obligations of the Banks to the Company, including, without
limitation, the Commitments and all obligations to make Advances and issue
Letters of Credit under this Agreement, shall terminate automatically and the
Notes, including, without limitation, principal, accurred interest and costs of
collection (including, without limitation, reasonable attorneys' fees if
collected by or through an attorney at law or in bankruptcy, receivership or
other judicial proceedings) and all other Obligations shall be immediately due
and payable, without presentment, demand, protest, or any other notice of any
kind, all of which are expressly waived.
(c) Upon the occurrence of an Event of Default and acceleration of
the Notes as provided in (a) or (b) above, each of the Banks, the Agent and the
Collateral Agents, or any of them, may pursue any remedy available under this
Agreement, the Notes, the Security Documents or any other Loan Document, or
available at law or in equity, all of which shall be cumulative. The order and
manner in which the rights and remedies of the Banks under Loan Documents and
otherwise may be exercised shall be determined by the Required Banks.
(d) Regardless of how each Bank may treat the payments for the
purpose of its own accounting, for the purpose of computing the Company's
obligations hereunder and under the Notes, all payments with respect to this
Agreement received by the Agent and the Banks, or any of them, shall be applied
in accordance with the terms of the Intercreditor Agreement. No application of
the payments will cure any Event of Default or prevent acceleration, or
continued acceleration,of amounts payable under the Loan Documents or prevent
the exercise, or continued exercise, of rights or remedies of the Banks
hereunder or under applicable law.
ARTICLE IX
THE AGENT
---------
SECTION 9.01. Appointment and Authorization. Each Bank hereby
-----------------------------
designates SunTrust Bank, Atlanta as Agent to act as herein specified. Each Bank
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
a Note shall be deemed irrevocably to authorize, the Agent to take such action
on its behalf under the
-73-
provisions of this Agreement and the Notes and any other instruments and
agreements referred to herein and to exercise such powers and to perform such
duties hereunder and thereunder as are specifically delegated to or required of
the Agent by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. The Agent may perform any of its duties hereunder
by or through its agents or employees.
SECTION 9.02. Nature of Duties of the Agent. The Agent shall have no
-----------------------------
duties or responsibilities except those expressly set forth in this Agreement.
Neither the Agent nor any of its officers, directors, employees or agents shall
be liable for any action taken or omitted by it as such hereunder or in
connection herewith, unless caused by its or their gross negligence or willful
misconduct. The Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Bank; and nothing in this Agreement, expressed or
implied, is intended to or shall be so construed as to impose upon the Agent any
obligations in respect of this Agreement except as expressly set forth herein.
The Agent agrees to give each Bank prompt notice of the Agent's receipt from the
Company of any notice under this Agreement.
SECTION 9.03. Lack of Reliance on the Agent.
-----------------------------
(a) Each Bank agrees that, independently and without reliance upon
the Agent, any other Bank, or the directors, officers, agents or employees of
the Agent or of any other Bank, each Bank, to the extent it deems appropriate,
has made and shall continue to make (i) its own independent investigation of the
financial condition and affairs of the Company and its Subsidiaries in
connection with the taking or not taking of any action in connection with this
Agreement and the other Loan Documents, including the decision to enter into
this Agreement, and (ii) its own appraisal of the creditworthiness of the
Company and its Subsidiaries, and, except as expressly provided in this
Agreement, the Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Bank with any credit or other information
with respect thereto, whether coming into its possession before the making of
any Advance or at any time to times thereafter.
(b) The Agent shall not be responsible to any Bank for any recitals,
statement, information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, collectibility,
priority or sufficiency of this Agreement or any other Loan Documents or the
financial condition of the Company or its Subsidiaries or be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Loan Documents, or the
financial condition of the Company or its Subsidiaries, or the existence or
possible existence of any Default or Event of Default.
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SECTION 9.04. Certain Rights of the Agent.
---------------------------
(a) If the Agent shall request instructions from the Required Banks
with respect to any act or action (including the failure to act) in connection
with this Agreement or any other Loan Documents, the Agent shall be entitled to
refrain from such act or taking such action unless and until the Agent shall
have received instructions from the Required Banks and the Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Bank shall have any right of action whatsoever against the Agent
as a result of the Agent acting or refraining from acting hereunder in
accordance with the instructions of the Required Banks; provided, however, that
-------- -------
the Agent shall not be required to act or not act in accordance with any
instructions of the Required Banks if to do so would expose the Agent to
personal liability or would be contrary to any Loan Document or to Applicable
Law.
(b) The Agent may assume that no Event of Default has occurred and is
continuing, unless the Agent has received notice from the Company stating the
nature of the Event of Default, or has received notice from a Bank stating the
nature of the Event of Default and that such Bank considers the Event of Default
to have occurred and to be continuing.
(c) If the Agent may not, pursuant to Section 9.04(b), assume that no
Event of Default has occurred and is continuing, the Agent shall give notice
thereof to the Banks and shall act or not act upon the instructions of the
Required Banks, provided that the Agent shall not be required to act or or not
--------
act if to do so would expose the Agent to personal liability or would be
contrary to any Loan Document or to Applicable Law, and provided further,
-------- -------
that if the Required Banks fail, for five days after the receipt of notice from
the Agent, to instruct the Agent, then the Agent, in its discretion, may act or
not act as it deems advisable for the protection of the interests of the Banks
and shall be fully protected in so acting.
SECTION 9.05. Liability of the Agent. Neither the Agent nor any of
----------------------
its directors, officers, agents or employees shall be liable for any action
taken or not taken by them under or in connection with the Loan Documents,
except for their own gross negligence or willful misconduct. Without limitation
------
on the foregoing, the Agent and its directors, officers, agents, and employees:
(a) may treat the payee of any Note as the holder thereof until the
Agent receives notice of the assignment or transfer thereof in form
satisfactory to the Agent, signed by the payee, and may treat each Bank as
the owner of that Bank's interest in the obligations due to such Bank for
all purposes of this Agreement and the other Loan Documents until the Agent
receives notice of the assignment or transfer thereof, in form satisfactory
to the Agent, signed by such Bank;
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(b) may consult with outside legal counsel (including King & Spalding
and Xxxxxx Xxxxx Xxxxxxx), in-house legal counsel, independent public
accountants, in-house accountants and other professionals, or other experts
selected by it with reasonable care, or with legal counsel, independent
public accountants, or other experts for the Company, and shall not be
liable for any action taken or not taken by it or them in good faith in
accordance with the advice of such legal counsel, independent public
accountants, or experts;
(c) will not be responsible to any Bank for any statement, warranty,
or representation made in any of the Loan Documents or in any notice,
certificate, report, request, or other statement (written or oral) in
connection with any of the Loan Documents;
(d) except to the extent expressly set forth in the Loan Documents,
will have no duty to ascertain or inquire as to the performance or
observance by the Company or any other Person of any of the terms,
conditions, or covenants of any of the Loan Documents or to inspect the
property, books, or records of the Company or any of its Subsidiaries or
other Person;
(e) will not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, effectiveness,
sufficiency, or value of any Loan Document, any other instrument or writing
furnished pursuant thereto or in connection therewith;
(f) will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, document, statement,
telex, telecopier message or other instrument or writing believed by it or
them to be genuine and to have been signed, sent or made by the proper
Person; and
(g) will not incur any liability for any arithmetical error in
computing any amount payable to or receivable from any Bank hereunder,
including, without limitation, payment of principal and interest on the
Notes, Advances and other amounts; provided that promptly upon discovery of
--------
such an error in computation, the Agent, the Bank and (to the extent
applicable) the Company shall make such adjustments as are necessary to
correct such error and to restore the parties to the position that they
would have occupied had the error not occurred.
SECTION 9.06. Indemnification. Each Bank shall, ratably in
---------------
accordance with the respective outstanding principal amount of its Advances,
indemnify and hold the Agent and its directors, officers, agents and employees
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
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disbursements of any kind or nature whatsoever (including, without limitation,
attorneys' fees and disbursements) that may be imposed on, incurred by, or
asserted against it or them in any way relating to or arising out of the Loan
Documents (other than losses incurred by reason of the failure by the Company to
pay the obligations due to the Banks hereunder or under the Notes) or any action
taken or not taken by it as Agent thereunder, except for the gross negligence or
------
willful misconduct of the Agent. Without limitation of the foregoing, each Bank
shall reimburse the Agent upon demand for that Bank's ratable share of any cost
or expense incurred by the Agent in connection with the negotiation,
preparation, execution, delivery, administration, amendment, waiver,
refinancing, restructuring, reorganization (including a bankruptcy
reorganization) or enforcement of the Loan Documents, to the extent that the
Company is required to pay that cost or expense but fails to do so upon demand.
SECTION 9.07. Agent and Affiliates. SunTrust Bank, Atlanta (and each
--------------------
successor Agent) has the same rights and powers under the Loan Documents as any
other Bank and may exercise the same as though it were not the Agent; and the
term "the Banks" or "Bank" includes SunTrust Bank, Atlanta in its individual
capacity. SunTrust Bank, Atlanta (and each successor Agent) and its Affiliates
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with the Company and any Affiliate of the
Company, as if it were not the Agent and without any duty to account therefor to
the Banks, including, without limitation, the transactions contemplated by the
SunTrust Interest Rate Contracts. SunTrust Bank, Atlanta (and each successor
Agent) need not account to any other Bank for the monies received by it for
reimbursement of its costs, expenses and fees as the Agent hereunder, or for any
monies received by it in its capacity as a Bank hereunder, except as otherwise
provided herein. This Agreement shall not be deemed to constitute a joint
venture or partnership among the Banks.
SECTION 9.08. Successor Agent. The Agent may resign as such at any
---------------
time by written notice to the Company and the Banks, to be effective upon a
successor's acceptance of appointment as Agent. In such event, the Required
Banks shall appoint a successor Agent or Agents who must be from among the
Banks; provided, that the Agent shall be entitled to appoint a successor Agent
--------
from among the Banks, subject to acceptance of appointment by that successor
Agent if the Required Banks have not appointed a successor Agent within thirty
(30) calendar days after the date the Agent gave notice of resignation or was
removed. Upon a susccessor's acceptance of appointment as Agent the successor
will thereupon succeed to and become vested with all the rights, powers,
privileges, and duties of the Agent under the Loan Documents, and the resigning
Agent will thereupon be discharged from its duties and obligations thereafter
arising under the Loan Documents.
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ARTICLE X
GUARANTEE
---------
SECTION 10.01. The Guarantee.
-------------
(a) In consideration of (1) the substantial direct and indirect
benefits to be derived by the Guarantors as a result of the Banks making the
Commitments available to the Company, including, without limitation, the
advances to be made available to such Guarantors by the Company from time to
time from the proceeds of Advances lent to the Company hereunder, (2) the
substantial direct and indirect benefits to be derived by the Company and the
Guarantors as a result of the Banks making the Letter of Credit Subfacility
available to the Company and the Guarantors, including, without limitation, the
Letters of Credit issued or to be issued by the Agent on behalf of the Banks
for the account of the Company or any Guarantor, and (3) substantial direct and
indirect benefits to be derived by the Guarantors as a result of Barclays Bank
PLC making the other First Tier Facilities available under the Barclays
Agreement, pursuant to which the Guarantors shall receive further direct and
indirect benefit, each Guarantor hereby absolutely, unconditionally and
irrevocably, jointly and severally, guarantees to each of the Banks, the Agent
and the Collateral Agents the due and punctual payment and performance of all
the Obligations of the Company and each other Guarantor as and when the same
shall become due and payable, whether at maturity, by acceleration, mandatory
prepayment or otherwise, according to their terms (the obligations of such
Guarantor in respect of such guarantee, its "Guaranty Obligations"). In case of
--------------------
failure by the Company or such Guarantor punctually to pay or perform the
Obligations, each Guarantor hereby unconditionally and irrevocably agrees to
cause such payment or performance to be made punctually as and when the same
shall become due and payable, whether at maturity, by prepayment, declaration or
otherwise, and as if such payment or performance were made by the Company or
such Guarantor. The foregoing guarantees (collectively, the "Guaranty") shall be
--------
guarantees of payment and not of collection merely.
(b) It is the intent of the Guarantors, the Agent, the Banks and any
other Person holding any of the Guaranty Obligations that each Guarantor's
maximum obligations hereunder (such Guarantor's "Maximum Guaranty Liability")
--------------------------
shall not be in excess of:
(i) in a case or proceeding commenced by or against such Guarantor
under 11 U.S.C. (S) 101 et seq., as amended (the "Bankruptcy Code"), on or
-- --- ---------------
within one year from the date on which any of the Guaranty Obligations of
such Guarantor are incurred, the maximum amount that would not otherwise
cause the obligations of such Guarantor hereunder (or any other obligations
of such Guarantor to the Agent, the Banks and any other Person holding any
of the Guaranty Obligations) to
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be avoidable or unenforceable against such Guarantor under (A) Section 548
of the Bankruptcy Code or (B) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
(ii) in a case of proceeding commenced by or against such Guarantor
under the Bankruptcy Code subsequent to one year from the date on which any
of the Guaranty Obligations of such Guarantor are incurred, the maximum
amount that would not otherwise cause the obligations of such Guarantor
hereunder (or any other obligations of such Guarantor to the Agent, the
Banks and any other Person holding any of the Guaranty Obligations) to be
avoidable or unenforceable against such Guarantor under any state
fraudulent transfer or fraudulent conveyance act or statue applied in any
such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such Guarantor
under any law, statute or regulation other than the Bankruptcy Code
relating to dissolution, liquidation, conservatorship, bankruptcy,
moratorium, readjustment of debt, compromise, rearrangement, receivership,
insolvency, reorganization or similar debtor relief from time to time in
effect affecting the rights of creditors generally (collectively, "Other
-----
Debtor Relief Law"), the maximum amount that would not otherwise cause the
-----------------
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Agent, the Banks and any other Person holding any of the
Guaranty Obligations) to be avoidable or unenforceable against such
Guarantor under such Other Debtor Relief Law, including, without
limitation, any state fraudulent transfer or fraudulent conveyance act or
statute applied in any such case or proceeding. (The substantive state or
federal laws under which the possible avoidance or unenforceability of the
obligations of any Guarantor hereunder (or any other obligations of such
Guarantor to the Agent, the Banks and any other Person holding any of the
Guaranty Obligations) shall be determined in any such case or proceeding
shall hereinafter be referred to as the "Avoidance Provisions").
--------------------
(c) To the extent set forth in Section 10.01(b), but only to the
extent that the obligations of any Guarantor hereunder, or the transfers made by
the Guarantor under the Guarantor Pledge Agreement, the Guarantor Security
Agreement or the Guarantor Trademark Security Agreement, would otherwise be
subject to avoidance under any Avoidance Provisions if such Guarantor is not
deemed to have received valuable consideration, fair value, fair consideration
or reasonably equivalent value for such transfers or obligations, or if such
transfers or obligations of any Guarantor hereunder would render such Guarantor
insolvent, or leave such Guarantor with an unreasonably small capital or
unreasonably small assets to conduct its business, or cause such Guarantor to
have incurred debts (or to have in-
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tended to have incurred debts) beyond its ability to pay such debts as they
mature, in each case as of the time any of the obligations of such Guarantor are
deemed to have been incurred and transfers made under such Avoidance Provisions,
then the obligations of such Guarantor hereunder shall be reduced to that
amount which, after giving effect thereto, would not cause the obligations of
such Guarantor hereunder (or any other obligations of such Guarantor to the
Agent, the Banks or any other Person holding any of the Guaranty Obligations),
as so reduced, to be subject to avoidance under such Avoidance Provisions. This
Section 10.01(c) is intended solely to preserve the rights hereunder of the
Agent, the Banks and any other Person holding any of the Guaranty Obligations to
the maximum extent that would not cause the obligations of the Guarantors
hereunder to be subject to avoidance under any Avoidance Provisions, and no
Guarantor nor any other Person shall have any right or claim under this Section
10.01(c) as against the Agent, the Banks or any other Person holding any of the
Guaranty Obligations that would not otherwise be available to such Person under
the Avoidance Provisions. To the extent that the limitations contained in this
Section 10.01 are raised by any Guarantor as a limitation or defense to any
action to collect from such Guarantor hereunder, then, to the extent the
provisions of this sentence do not cause the obligations of the Guarantor to be
avoidable under any Avoidance Provision, the burden of proof and persuasion
with respect to the dollar amount of such limitation shall be on the Guarantor,
notwithstanding any provison of state or federal law to the contrary.
(d) Each Guarantor agrees that the Obligations may at any time and
from time to time exceed the Maximum Guaranty Liability of such Guarantor, and
may exceed the aggregate Maximum Guaranty Liability of all Guarantors hereunder,
without impairing this Guaranty or affecting the rights and remedies of the
Banks and the Agent hereunder. Nothing in the Section 10.01(d) shall be
construed to increase any Guarantor's obligations hereunder beyond its Maximum
Guaranty Liability.
(e) In the event any Guarantor (a "Funding Guarantor"") shall make
-----------------
any payment or payments under this Guaranty or shall suffer any loss as a
result of any realization upon any collateral granted by it to secure its
obligations hereunder, each other Guarantor (each, a "Contributing Guarantor")
----------------------
shall contribute to such Funding Guarantor an amount equal to such Contributing
Guarantor's pro rata share of such payment or payments made, or losses suffered,
by such Funding Guarantor determined as of the date on which such payment or
loss was made by reference to the ratio of (i) the Maximum Guaranty Liability
of such Contributing Guarantor (without giving effect to any right to receive
any contribution or other obligation to make any contribution hereunder), to
(ii) the aggregate Maximum Guaranty Liability of all Guarantors (including the
Funding Guarantors) hereunder (without giving effect to any right to receive, or
obligation to make, any contribution hereunder). Nothing in this Section
10.01(e) shall affect each Guarantor's several liability for the entire amount
of its Guaranty Obligations subject only to the limitations set forth in Section
10.01. Each Guarantor covenants and agrees that its right to
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receive any contribution hereunder from a Contributing Guarantor shall be
subordinate and junior in right of payment to all obligations of the Guarantors
to the Banks hereunder.
SECTION 10.02. Guarantee Unconditional. The obligations of each
-----------------------
Guarantor under this Article X shall be continuing, unconditional and absolute
and, without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Company or any of the other Guarantors
under this Agreement, the Notes or any other Loan Document, by operation of
law or otherwise;
(b) any modification or amendment of or supplement to this Agreement,
the Notes or any other Loan Document;
(c) any modification, amendment, waiver, release, non-perfection or
invalidity of any direct or indirect security, or of any guaranty or other
liability of any third party, for any obligation of the Company or any
other Guarantor under this Agreement, the Notes or any other Loan Document;
(d) any change in the corporate existence, structure or ownership of
the Company or any Guarantor, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Company or any Guarantor, or any
of their respective assets, or any resulting release or discharge of any
obligation contained in this Agreement, the Notes or any other Loan
Document;
(e) the existence of any claim, set off or other right which any
Guarantor may have at any time against the Company, any other Guarantor,
any Bank, the Agent or any other person or entity, whether or not arising
in connection with this Agreement, the Notes or any other Loan Document;
(f) any invalidity or unenforceability relating to or against the
Company or any other Guarantor for any reason of the whole or any provision
of this Agreement, the Notes or other Loan Document, or any provision of
Applicable Law purporting to prohibit the payment by the Company or such
Guarantor of any Obligation, or any other amount payable by it under this
Agreement, the Notes or any other Loan Document;
(g) any other act or omission to act or delay of any kind by the
Company, any other Guarantor, any Bank, the Agent, either Collateral Agent
or any other person
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or entity, or any other circumstance whatsoever, that might constitute a
legal or equitable discharge of the obligations of any Guarantor under this
Article X; or
(h) any future changes in conditions, including any change of law or
any invalidity or irregularity with respect to the issuance of the Loan
Documents.
SECTION 10.03. Discharge Only Upon Payment in Full; Reinstatement in
-----------------------------------------------------
Certain Circumstances. Each Guarantor's obligations under this Article IX shall
---------------------
remain in full force and effect until the Commitments shall have been terminated
in full and the Obligations and all other amounts payable by the Company and
each other Guarantor under this Agreement, the Notes and the other Loan
Documents shall have been paid in full. If at any time any payment of the
Obligations or any other amount payable by the Company or any other Guarantor
under this Agreement, any Note or other Loan Documents is rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy or
reorganization of the Company or any other Guarantor or otherwise, each
Guarantor's obligation under this Article X with respect to such payment shall
be reinstated at such time as though such payment had become due but not been
made at such time.
SECTION 10.04. Waiver. Each Guarantor irrevocably waives acceptance
------
hereof, presentment, demand, protest and any notice not provided for herein or
required by Applicable Law, as well as any requirement that at any time any
action be taken by any person or entity against the Company or any other person
or entity, or any collateral granted to secure any of the Obligations and/or the
Guaranteed Obligations. Each Guarantor acknowledges that in certain
circumstances it may be exonerated from its obligations hereunder if the Banks
(i) materially alter the original Obligations, (ii) impair or suspend their
rights or remedies against the Company without the consent of such Guarantor, or
(iii) take any action materially prejudicing such Guarantor without notifying
such Guarantor, and each Guarantor hereby waives its right to be exonerated from
its obligations hereunder upon the Banks taking any of the actions referred to
in clauses (i), (ii) and (iii) of this sentence. Each Guarantor further
acknowledges that in certain circumstances the acceptance by the Banks of any
compensation in partial satisfaction of the Obligations may reduce the
Obligations of such Guarantor hereunder by an amount equal to such compensation,
and each Guarantor hereby waives any right it may have to be relieved of any
portion of its obligations hereunder by reason of the Banks accepting any such
compensation in partial satisfaction of the Obligations. Each Guarantor hereby
unconditionally waives any right that it has to given written notice to the
Banks requiring the U.S. Collateral Agent or any Bank to use all reasonable
diligence to recover against the Company and to proceed to realize upon the
Collateral or any other securities which the U.S. Collateral Agent or any Bank
holds securing the Obligations.
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SECTION 10.05. Waiver of Subrogation. Each Guarantor hereby waives, to
---------------------
the fullest extent possible, as against the Company and its assets, any and all
rights, whether at law, in equity, by agreement or otherwise, to subrogation,
indemnity, reimbursement, contribution, or any other similar claim, cause of
action or remedy that otherwise would arise out of such Guarantor's payment or
performance of the Guaranteed Obligations. The preceding waiver is intended by
each Guarantor, the Banks and the Agent to be for the benefit of the Company and
any of its successors or assigns as an absolute defense to any action by any
such Guarantor against the Company or its assets that arises out of such
Guarantor's having made any payment to the Banks and the Agent with respect to
any of the Company's Obligations guaranteed hereunder. Upon the bankruptcy of
the Company, the Banks' and the Agent's rights hereunder shall not be affected
or impaired by its omission to prove all or any portion of its claim, and the
Banks and the Agent may, in their discretion, value or refrain from valuing any
security held by it without in any way releasing, reducing or otherwise
affecting any Guarantor's obligations hereunder.
SECTION 10.06. Stay of Acceleration. If acceleration of the time for
-------------------
payment of any amount payable by the Company under this Agreement is stayed upon
the insolvency, bankruptcy or reorganization of the Company, all such amounts
otherwise subject to acceleration under the terms of this Agreement shall
nonetheless be payable by the Guarantors hereunder forthwith.
ARTICLE XI
MISCELLANEOUS
-------------
SECTION 11.01. Survival. All covenants, agreements, warranties and
--------
representations made herein, in the other Loan Documents, or in any certificates
or other documents delivered in connection with this Agreement by or on behalf
of the Company or any Guarantor shall survive the advances of money made by the
Banks to the Company hereunder and the delivery of this Agreement and the other
Loan Documents, and all such covenants, agreements, warranties and
representations shall be binding upon and inure to the benefit of the Company,
the Guarantors, the Banks, the Agent, the Collateral Agents and their respective
successors and assigns, whether or not so expressed, provided, however, that the
-------- -------
Company may not assign or transfer any of its rights under this Agreement
without the prior written consent of each of the Banks.
SECTION 11.02. Amendments; Consents. No amendment, modification,
--------------------
supplement, termination, or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Company, any
Guarantor or any
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Subsidiary of the Company therefrom, may in any event be effective unless in
writing signed by the Required Banks, and then only in the specific instance and
for the specific purpose given; provided, however, that without the approval in
-------- -------
writing of all Banks and Barclays Bank PLC, no amendment, modification,
supplement, termination, waiver, or consent may be effective:
(a) to amend or modify the principal of, the rate of interest payable
on, or any fees with respect to, any Bank's Note, the Fees or the amount of
any Bank's Commitment or the Letter of Credit Subfacility;
(b) to postpone any date fixed for any payment of principal of, or
any installment of interest on, any Bank's Notes or the Fees, or to extend
the term of any Bank's Commitment;
(c) to amend or modify the definitions of "Commitment", "Borrowing
Base" or "Required Banks" or the provisions of Section 11.07 or of this
Section 11.02;
(d) to release any of the Collateral pledged to the U.S. Collateral
Agent or the International Collateral Agent for the benefit of, inter alia,
----- ----
the Agent, the Collateral Agents, the Banks or Barclays Bank PLC pursuant
to the Security Documents to secure the Obligations, if any Obligations are
outstanding or any Commitment or the Barclays Revolver has not been
terminated;
(e) To consent to the existence of any other lien, security interest
or encumbrance on the Collateral except as otherwise permitted herein; and
(f) To subordinate any of the Obligations or the Commitments to any
other indebtedness of the Company or any of its Subsidiaries.
Any amendment, modification, supplement, termination, waiver or consent effected
in accordance with this Section 11.02 shall apply equally to, and shall be
binding upon, all Banks and the Agent.
SECTION 11.03. Notices. All notices, consents, demands and other
-------
communications provided for hereunder, unless otherwise provided, shall be in
writing and mailed, sent by facsimile transmission or delivered to the parties
hereto addressed as follows or at such other address as shall be designated by
any party in a written notice to the other party hereto:
If to the Company:
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Law Companies Group, Inc.
000 Xxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Chief Financial Officer
Telecopier No.: 000-000-0000
Confirmation No.: 000-000-0000
with a copy to:
Long, Xxxxxxxx & Xxxxxx, LLP
Xxx Xxxxxxxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxxxx 00000
Attn: F.T. Xxxxx, Esq.
Telecopier No.: 404-527-4198
Confirmation No.: 000-000-0000
If to the Guarantor:
The address, telecopier and confirmation numbers set forth opposite its
name on the signature pages hereof.
If to the Agent:
SunTrust Bank, Atlanta
X.X. Xxx 0000
Xxxxxxx, XX 00000
Attn: Corporate Banking
Department 127
Mr. J. Xxxxxxxxxxx Xxxxxxx
Telecopier No.: 000-000-0000
Confirmation No.: 000-000-0000
with a copy to:
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King & Spalding
000 Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Attn: G. Xxxxxx Xxxxx, Esq.
Telecopier No.: 000-000-0000
Confirmation No.: 000-000-0000
If to a Bank:
The address, telecopier and confirmation numbers set forth opposite
its name on the signature pages hereof.
All notices that are sent by facsimile transmission or are hand delivered shall
be deemed to be delivered upon receipt. All notices which are mailed shall be
mailed first class certified mail-return receipt requested, postage prepaid,
and shall be deemed delivered upon actual receipt or three days after being
deposited in the mail, whichever shall occur first.
SECTION 11.04. Severability; Time of Essence. Every provision of this
-----------------------------
Agreement and the other Loan Documents are intended to be severable. If any term
or provision of this Agreement or the Loan Documents, or any other document
delivered in connection herewith shall be unenforceable in any respect, the
enforceability of the remaining provisions shall not thereby be affected. Time
is of the essence of this Agreement and the other Loan Documents.
SECTION 11.05. GOVERNING LAW; SUBMISSION TO JURISDICTION.
-----------------------------------------
(A) THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL OTHER DOCUMENTS
CONTEMPLATED HEREBY, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
UNDER THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF GEORGIA (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAW PRINCIPLES THEREOF).
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF GEORGIA OR
OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY AND THE
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GUARANTORS HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND EACH OF THE COMPANY AND THE
GUARANTORS HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) EACH OF THE GUARANTORS HEREBY IRREVOCABLY DESIGNATES THE COMPANY
AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS BEHALF, SERVICE
OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR THE NOTES OR ANY DOCUMENT RELATED THERETO. IT
IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY
FORWARDED BY MAIL TO SUCH GUARANTOR AT ITS ADDRESS, BUT THE FAILURE OF SUCH
GUARANTOR TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH
PROCESS. EACH OF THE COMPANY AND THE GUARANTORS FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS AS SET FORTH IN SECTION 11.03,
SUCH SERVICE TO BECOME EFFECTIVE 3 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the Banks and the Agent
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company or any Guarantor in any
other jurisdiction.
SECTION 11.06. Payment of Costs. The Company shall pay all reasonable
----------------
costs, expenses, taxes and fees (i) incurred by the Agent, the Collateral
Agents, the Intercreditor Agreement Agent and all Banks in connection with
the negotiation, preparation, execution and delivery of this Agreement, the term
sheet and the Commitment Letter relating to this Agreement, the Security
Documents and all other Loan Documents, including, without limitation, the out-
of-pocket expenses of Barclays and the disbursements and professional fees of
(a) King & Spalding, counsel to the Agent, the U.S. Collateral Agent and the
Intercreditor Agreement Agent, (b) all local counsel to the Agent, the
Collateral Agents and the Intercreditor Agreement Agent, including without
limitation Xxxxxx Xxxxx Xxxxxxx, (c)
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U.K. and U.S. counsel to Barclays, in all cases whether or not the transaction
contemplated hereby shall be consummated and (d) Xxxxxxxxxx & Cody, counsel to
Canada; (ii) incurred by the Agent, the Collateral Agents and the Intercreditor
Agreement Agent in connection with the perfection, registration, maintenance,
administration, custody and preservation of the Collateral, including, without
limitation, with respect to any and all stamp, intangible or other taxes that
may be payable or determined in the future to be payable in connection with this
Agreement, the Security Documents and all other Loan Documents, and relating to
releases and consents; and (iii) incurred by any of the Banks in connection with
or after the occurrence of any Event of Default, including, without limitation,
in connection with (a) the negotiation, preparation, execution and delivery of
any waiver, amendment or consent by the Banks relating to this Agreement or the
Security Documents, (b) the negotiation of any restructuring or workout
transaction, and the preparation, execution and delivery of any documents
prepared in connection therewith, and (c) enforcement or foreclosure with
respect to this Agreement or the Security Documents, in all such cases such
costs, expenses, taxes and fees shall include, without limitation, the
disbursements and reasonable professional fees actually incurred of counsel to
any Bank. To the extent that any such fees and expenses are subject to value
added taxes, such taxes will be paid by the Company. To the extent reimbursement
is sought pursuant to this Section 11.06 or pursuant to the Security Documents
or any other Loan Document, the Banks shall submit to the Company a statement of
expenses to be paid by the Company. Such expenses shall be due and payable
within thirty (30) days of the date of the original statement to the extent that
such Bank is entitled to such reimbursement.
Section 11.07 Indemnity. The Company agrees to protect, indemnify
---------
and save harmless the Agent, the Collateral Agents and each Bank, and all
directors, officers, employees and agents of the Agent, the Collateral Agents
and each Bank, from and against any and all (i) claims, demands and causes of
action of any nature whatsoever brought by any person or entity not a party to
this Agreement and arising from or related or incident to this Agreement or any
other Loan Document, (ii) costs and expenses incident to the defense of such
claims, demands and causes of action, including, without limitation, attorneys'
fees, and (iii) liabilities, judgements, settlements, penalties and assessments
arising from such claims, demands and causes of action, provided such claims,
costs and liabilities are not the result of the gross negligence or willful
misconduct of such Agent, such Collateral Agent or such Bank. The indemnity
contained in this Section shall survive the termination of this Agreement.
Section 11.08. Benefit of the Agreement.
------------------------
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto, provided that neither the Company nor any Guarantor may assign or
transfer any of its interest hereunder
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without the prior written consent of the Banks, and no such assignment or
transfer of any such obligations shall relieve the Company or such Guarantor of
its obligations hereunder unless each Bank shall have consented to such release
in a writing specifically referring to the obligation from which the Company or
such Guarantor is to be released.
(b) Any Bank may make, carry or transfer Advances or Letters of
Credit Obligations at, to or for the account of, any of its branch offices or
the office of an Affiliate of such Bank. Any Bank may at any time assign all or
any portion of its rights in this Agreement and the Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release the Bank
--------
from any of its obligations hereunder.
(c) Each Bank may assign or delegate all or a portion of its
interests, rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of any of its Commitments, Letter of
Credit Obligations and the Advances at the time owing to it and the Notes held
by it) to another financial or lending institution or entity; provided, however,
-------- -------
that (i) the Agent and the Company must give their prior written consent to such
assignment (which consent, in the case of the Company, shall not be
unreasonably withheld) unless such assignment is to an Affiliate of the
assigning Bank or, in the case of the Company, unless an Event of Default has
occurred and is continuing, (ii) the parties to each such assignment shall
execute and deliver to the Agent an Assignment Agreement, and, together with a
Note or Notes subject to such assignment and, unless such assignment is to an
Affiliate of such Bank, a processing and recordation fee of $3,000, and (iv) the
assignee must execute and deliver a confirmation of its acceptance of the terms
and conditions of the Intercreditor Agreement and any other related agreement to
the other parties to the Intercreditor Agreement and any other related agreement
in accordance with the terms thereof. The Company shall not be responsible for
such processing and recordation fee or any costs or expenses incurred by any
Bank (other than the Agent) in connection with such assignment. From and after
the effective date specified in each Assignment Agreement, which effective date
shall be at least five (5) Business Days after the execution thereof, the
assignee thereunder shall be a party hereto and to the extent of the interest
assigned by such Assignment Agreement, have the rights and obligations of a Bank
under this Agreement. Within five (5) Business Days after receipt of the notice
and the Assignment Agreement, the Company, at its own expense, shall execute and
deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note
or Notes to the order of such assignee in a principal amount equal to the
applicable Commitments assumed by it pursuant to such Assignment and Acceptance
and new Note or Notes to the assigning Bank in the amount of its retained
Commitment or Commitments. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the date of the surrendered Note or Notes which
they replace, and shall otherwise be in substantially the form attached hereto.
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(d) Each Bank may from time to time sell or otherwise grant
participations in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of its
Commitments, the Letter of Credit Obligations and the Advances owing to it and
the Notes held by it) to another financial or lending institution or entity,
whereupon the holder of any such participation, if the participation agreement
so provides, shall be entitled to all of the rights of a Bank hereunder;
provided, however, that (i) the Agent and the Company must give their prior
--------- --------
written consent to such participation (which consent, in the case of the
Company, shall not be unreasonably withheld) unless such participation is to an
Affiliate of such Bank or, in the case of the Company, unless an Event of
Default has occurred and is continuing, (ii) such selling Bank's obligations
under this Agreement shall remain unchanged, (iii) such selling Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, and (iv) the Company, the Agent and other Banks shall continue
to deal solely and directly with each Bank in connection with such Bank's rights
and obligations under this Agreement and the other Loan Documents, and such Bank
shall retain the sole right to enforce the obligations of the Company relating
to the Advances and Letter of Credit Obligations and to approve any amendment,
modification or waiver of any provisions of this Agreement or the other Loan
Documents. Any Bank selling a participation hereunder shall provide prompt
written notice to the Company of the name of such participant.
SECTION 11.09. Subordination of Indebtedness.
-----------------------------
(a) Any Indebtedness of the Company now or hereafter owed to any
Guarantor is hereby subordinated in right of payment to the payment by the
Company of the Obligations such that if a default in the payment of the
Obligations shall have occurred and be continuing, any such Indebtedness of the
Company owed to such Guarantor, if collected or received by such Guarantor,
shall be held in trust by such Guarantor for the holders of the Obligations and
be paid over to the Banks and the Agent for application on the Obligations.
(b) Any Indebtedness of any Guarantor now or hereafter owed to the
Company is hereby subordinated in right of payment to the payment by such
Guarantor of its Guaranty Obligations such that if a default in the payment of
the Obligations shall have occurred and be continuing, any such Indebtedness of
such Guarantor owed to the Company, if collected or received by the Company,
shall be held in trust by the Company for the holders of the Obligations and be
paid over to the Banks and the Agent for application of such Guarantor's
Guaranty Obligations.
SECTION 11.10. Judgment Currency.
-----------------
(a) The Company's and the Guarantors' obligations hereunder and under
the other Loan Documents to make payments in U.S. Dollars shall not be
discharged or satisfied
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by any tender or recovery pursuant to any judgment expressed in or converted
into any currency other than U.S. Dollars, except to the extent that such tender
or recovery results in the effective receipt by the Banks and the Agent of the
full amount of U.S. Dollars expressed to be payable to the Banks and the Agent
under this Agreement and the other Loan Documents.
(b) If for the purpose of obtaining or enforcing any judgment against
the Company or any Guarantor in any court or in any jurisdiction, it becomes
necessary to convert into or from any currency other than U.S. Dollars (such
other currency being hereinafter referred to as the "Judgment Currency") an
-----------------
amount due in U.S. Dollars, the conversion shall be made at the Dollar
Equivalent determined, as on the Business Day immediately preceding the day on
which the judgment is entered (such Business Day being hereafter referred to as
the "Judgment Currency Conversion Date"). In any such case, if there is a change
--------------------------------
in the rate of exchange prevailing between the Judgment Currency Conversion Date
and the date of actual payment of the amount due, the Company and each
Guarantor, jointly and severally, covenants and agrees to pay, or cause to be
paid, such additional amounts, if any (but in any event not a lesser amount), as
may be necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of U.S. Dollars which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial award at the
rate of exchange prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the Dollar Equivalent for this
Section, such amounts shall include any premium and costs payable in connection
with the purchase of U.S. Dollars.
SECTION 11.11. Dollar Equivalent Computations. To the extent that the
------------------------------
determination of compliance with any requirement of this Agreement requires the
conversion to U.S. Dollars of foreign currency amounts, such U.S. Dollar amount
shall be computed using the Dollar Equivalent of the amount of such foreign
currency at the time such item is to be calculated or is to be or was incurred,
created or suffered or permitted to exist, or assumed or transferred or sold for
purposes of this Agreement (except that if such item was incurred, created or
assumed, or suffered or permitted to exist or transferred or sold prior to the
date hereof, such conversion shall be made based on the Dollar Equivalent of the
amounts of such foreign currency at the date hereof).
SECTION 11.12. Maximum Interest Rate. Nothing contained in this
---------------------
Agreement or any Note shall require the Company to pay interest at a rate
exceeding the Maximum Permissible Rate. If interest payable to any Bank for any
period would exceed the Maximum Permissible Rate, such interest shall be reduced
automatically to the maximum
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amount that will not exceed the Maximum Permissible Rate, and interest payable
to any Bank for any subsequent period, to the extent less than the Maximum
Permissible Rate, shall, to that extent, be increased by the aggregate amount of
all such reductions.
SECTION 11.13. Entire Agreement. This Agreement and the other Loan
----------------
Documents executed and delivered contemporaneously herewith, together with the
exhibits and schedules attached hereto and thereto, constitute the entire
understanding of the parties with respect to the subject matter hereof, and any
other prior or contemporaneous agreements, whether written or oral, with respect
thereto, including, without limitation, the Original Credit Agreement, the
Original Reimbursement Agreement and the Commitment Letter, all of which are
expressly superseded hereby; provided, however, that the indemnities of the
--------- --------
Company in favor of the Banks, Barclays Bank PLC and SunTrust Capital Markets,
Inc. contained in the Commitment Letter shall survive the execution and delivery
of this Agreement. The execution of this Agreement and the other Loan Documents
by the Company and the Guarantors was not based upon any facts or materials
provided by the Agent, either Collateral Agent or any Bank, nor was the Company
or any Guarantor induced to execute this Agreement or any other Loan Document by
any representation, statement or analysis made by the Agent, either Collateral
Agent or any Bank.
SECTION 11.14. Set-Off. Upon the occurrence and during the continuance
-------
of any Event of Default, each Bank, and each of its branches and offices, is
hereby authorized by the Company and each Guarantor, at any time and from time
to time, without notice to the Company or any Guarantor, (i) to set off against,
and to appropriate and apply to the payment of the Obligations and the Guaranty
Obligations (in each case whether matured or unmatured) any and all amounts
owing by such Bank, or any such office or branch, to the Company or such
Guarantor (whether payable in Dollars or any other currency, whether matured or
unmatured, and, in the case of deposits, whether general or special, time or
demand and however evidenced) and (ii) pending any such action, to the extent
necessary, to hold such amounts as collateral to secure such Obligations and
Guaranty Obligations and to return as unpaid for insufficient funds any and all
checks and other items drawn against any deposits so held as such Bank in its
sole discretion may elect. The Company and the Guarantors agree, to the fullest
extent they may effectively do so under Applicable Law, that any holder of a
participation in any Advance may exercise rights of set-off and counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Company or such Guarantor in the
amount of such participation.
SECTION 11.15. Provisions relating to the Original Credit Agreement
----------------------------------------------------
and Original Reimbursement Agreement. Upon the fulfillment of all conditions
------------------------------------
precedent to this Agreement set forth in Section 3.01 and 3.02, (a) this
Agreement shall replace the Original Credit Agreement and (b) this Agreement and
the Swap Guaranty shall replace
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the Original Reimbursement Agreement, at which time (i) all amounts owing to
SunTrust and Canada under the Original Credit Agreement, including, without
limitation, all accrued and unpaid interest and fees, shall be deemed be
outstanding under each of their respective Commitments, (ii) the Notes shall
replace and substitute for all Notes (as defined in the Original Credit
Agreement) previously issued to such Banks and shall not constitute payment of
such indebtedness or effectuate a novation with respect thereto and (iii) all
Existing Letters of Credit and all letter of credit applications and agreements
executed in connection with such Existing Letters of Credit shall be deemed to
be Letters of Credit and Letters of Credit Applications, respectively,
outstanding hereunder.
SECTION 11.16. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one and the same instrument.
SECTION 11.17. Replacement Notes. Upon receipt of evidence reasonably
-----------------
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Note, and in the case of any such loss, theft or destruction, upon delivery of
any indemnity agreement reasonably satisfactory to the Company or, in the case
of any such mutilation, upon surrender and cancellation of such Note, the
Company shall execute and deliver, in lieu thereof, a replacement note identical
in form and substance to such Note and dated as of the date of such Note, and
upon such execution and delivery of the replacement note all references in this
Agreement and in all other Loan Documents to the Note shall be deemed to refer
to such replacement note.
SECTION 11.18. Release. In consideration of the Agent's and the Banks'
-------
agreement to enter into this Agreement and to establish the Commitments
hereunder, the Company and the Guarantors hereby (a) release, acquit and forever
discharge the Agent and the Banks, their respective agents, employees, officers,
directors, servants, representatives, attorneys, affiliates, successors and
assigns (collectively, the "Released Parties") from any and all liabilities,
claims, suits, debts, liens, losses, causes of action, demands, rights, damages,
costs and expenses of any kind, character or nature whatsoever, known or
unknown, fixed or contingent, that the Company or the Guarantors may have or
claim to have against the Agent and the Banks which might arise out of or be
connected with any act of commission or omission of the Agent or the Banks
existing or occurring on or prior to the date of this Agreement, including,
without limitation, any claims, liabilities or obligations relating to or
arising out of or in connection with the Original Credit Agreement, the Original
Reimbursement Agreement, the other Loan Documents and the Advances under the
Original Credit Agreement (including, without limitation, arising out of or in
connection with the initiation, negotiation, closing or administration of the
transactions contemplated thereby or related thereto), from the beginning of
time until the execution and delivery of this Agreement (the "Released
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Claims") and (b) agree forever to refrain from commencing, instituting or
prosecuting any lawsuit, action or other proceeding against the Released Parties
with respect to any and all Released Claims.
SECTION 11.19 Certain Consents. (a) The Company requests that the
----------------
Banks consent to the creation by Xxxx Limited of a wholly owned Subsidiary
organized in Portugal and the transfer of all assets of Xxxx Limited located in
Portugal as of the Closing Date to such new Subsidiary, for the purpose of
permitting the new Subsidiary to obtain national certificates of quality which
are mandatory for carrying out certain projects in Portugal and thus enable such
Subsidiary to increase the market share of Law Companies Group, Inc. and its
Subsidiaries in Portugal and in other Portuguese-speaking countries such as
Mozambique and Angola. Based upon the foregoing, the Banks hereby consent to
Xxxx Limited creating a wholly owned Subsidiary incorporated in Portugal and
transferring all of its assets located in Portugal as of the Closing Date into
such Subsidiary, notwithstanding anything contained in this Credit Agreement or
the Intercreditor Agreement to the contrary; provided that (l) promptly upon the
--------
formation of such Subsidiary, Xxxx Limited delivers to the U.S. Collateral Agent
a share certificate evidencing sixty-five percent (65%) of the issued and
outstanding shares of such Subsidiary, together with such share charge, pledge
agreement or similar instrument as the Banks shall reasonably require pursuant
to which Xxxx Limited shall pledge such share certificate to the U.S. Collateral
Agent, (2) promptly upon the formation of such Subsidiary, Xxxx Limited delivers
to the International Collateral Agent a share certificate evidencing thirty-five
percent (35%) of the issued and outstanding shares of such Subsidiary, together
with such share charge, pledge agreement or similar instrument as the Banks
shall reasonably require pursuant to which Xxxx Limited shall pledge such share
certificate to the International Collateral Agent, (3) such Subsidiary gives
Barclays a written pledge not to grant or permit any Lien or encumbrance to
exist on its assets other than Liens in favor of the International Collateral
Agent, (4) the Company delivers an opinion of Portuguese counsel to such
Subsidiary and Xxxx Limited, addressed to the Banks, addressing such issues as
the Banks shall reasonably require, in form and substance reasonably
satisfactory to the Banks, together with such other certificates, documents,
instruments, stock powers, and corporate documents as the Banks shall reasonably
require and (5) Barclays also consents to the foregoing.
(b) The Company requests that the Banks consent to the transfer of 51% of
the issued and outstanding shares of Xxxx (Eastern Africa) Ltd., a Kenyan
corporation, now owned by Xxxx Africa International Ltd., a Cypriot corporation,
to PBM Nominees, Ltd., a wholly owned subsidiary of Ernst & Young, as the
trustee for Xx. Xxxx Xxxxxxxx, a Kenyan national and employee of Xxxx (Eastern
Africa) Ltd., for the purpose of permitting Xxxx (Eastern Africa) Ltd. to be
eligible to register with the World Bank, the African Development Bank and other
funding agencies in Africa and, therefore, to
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increase the likelihood that Xxxx (Eastern Africa) Ltd. will be short-listed for
donor-funded projects in Africa. Based upon the foregoing, the Banks consent to
the transfer of fifty-one percent (51%) of the issued and outstanding shares of
Xxxx (Eastern Africa) Ltd. by Xxxx Africa International Ltd. to PBM Nominees
Ltd., as trustee for Xx. Xxxx Xxxxxxxx, a Kenyan national and employee of Xxxx
(Eastern Africa) Ltd., and instruct the International Collateral Agent to
release the share certificates of Xxxx (Eastern Africa) Ltd. to a representative
of Xxxx Limited, on behalf of Xxxx Africa International Ltd. notwithstanding
anything in this Credit Agreement or the Intercreditor Agreement to the
contrary; provided, however, that (l) no later than 15 days after such share
--------- --------
certificates are released to a representative of Xxxx Limited, Xxxx Limited
delivers, or causes its Subsidiary to deliver, to the U.S. Collateral Agent (A)
a share certificate evidencing 65% of the issued and outstanding shares of Xxxx
(Eastern Africa) Ltd. still held by Xxxx Africa International Ltd., (B) a share
certificate evidencing 65% of the issued and outstanding shares of Xxxx (Eastern
Africa) Ltd. then held by PBM Nominees, as trustee for Xx. Xxxx Xxxxxxxx, and
(C) share charges, pledge agreements or similar instruments in form and
substance reasonably acceptable to the Banks, one executed by Xxxx Africa
International Ltd. and one executed by PBM Nominees, Ltd. and Xx. Xxxx Xxxxxxxx,
pursuant to which such share certificates shall be pledged to the U.S.
Collateral Agent, (2) no later than 15 days after such share certificates are
released to a representative of Xxxx Limited, Xxxx Limited delivers, or causes
its Subsidiary to deliver, to the International Collateral Agent (A) a share
certificate evidencing 35% of the issued and outstanding shares of Xxxx (Eastern
Africa) Ltd. still held by Xxxx Africa International Ltd., (B) a share
certificate evidencing 35% of the issued and outstanding shares of Xxxx (Eastern
Africa) Ltd. then held by PBM Nominees, as trustee for Xx. Xxxx Xxxxxxxx, and
(C) share charges, pledge agreements or similar instruments in form and
substance reasonably acceptable to the Banks, one executed by Xxxx Africa
International Ltd. and one executed by PBM Nominees, Ltd. and Xx. Xxxx Xxxxxxxx,
pursuant to which such share certificates shall be pledge to the International
Collateral Agent, (3) the Company delivers an opinion of Kenyan counsel to such
Subsidiary, Xxxx Africa International Ltd, PBM Nominees, Ltd. and Xx. Xxxx
Xxxxxxxx, addressed to the Banks, addressing such issues as the Banks shall
reasonably require, in form and substance reasonably satisfactory to the Banks,
together with such other certificates, documents, instruments, stock powers, and
corporate documents as the Banks shall reasonably require and (4) Barclays also
consents to the foregoing.
(c) The Company hereby represents and warrants to the Banks that the
Petermuller Subsidiaries are inactive corporations with assets of not more than
$10,000 in the aggregate. The Company requests that the Banks consent to the
dissolution of the Petermuller Subsidiaries and the transfer of all remaining
assets of the Petermuller Subsidiaries to Xxxx Limited. Based upon the Company's
foregoing representation and warranty, the Banks hereby consent to the
dissolution of the Petermuller Subsidiaries
-95-
notwithstanding anything set forth in this Credit Agreement or the Intercreditor
Agreement to the contrary; provided, however, that Barclays also consents to the
--------- --------
foregoing.
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WITNESS the hand and seal of the parties hereto through their duly
authorized officers, as of the date first above written.
LAW COMPANIES GROUP, INC.,
A GEORGIA CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxxxxx, Xxxxxxx 00000 Xxxxx X. Xxxxx
Telecopier Number: 000-000-0000 President, Chief Executive Officer
and Chairman of the Board
of Directors
Attest: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
Secretary
LAW INTERNATIONAL, INC.,
A GEORGIA CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Xxxxxxxx, Xxxxxxx 00000 Xxxxxxx X. Xxxxxxxxxx
Telecopier Number: 000-000-0000 President
Attest: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
Secretary
[SIGNATURE PAGE TO THE SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT]
LAW ENGINEERING AND
ENVIRONMENTAL SERVICES, INC.,
FORMERLY LAW ENVIRONMENTAL, INC.,
A GEORGIA CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxxxxx, Xxxxxxx 00000 Xxxxx X. Xxxxx
Telecopier Number: 000-000-0000 President
Attest: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Secretary
ENSITE, INC.,
A KENTUCKY CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxxxxx, Xxxxxxx 00000 Xxxxx X. Xxxxxxx
Telecopier Number: (000) 000-0000 President
Attest: /s/ Xxxx X. Xxxx
------------------------------
Xxxx X. Xxxx
Secretary
[SIGNATURE PAGE TO THE SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT]
XXXX INTERNATIONAL HOLDINGS, INC.,
A DELAWARE CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Xxxxxxxx, Xxxxxxx 00000 Xxxxxxx X. Xxxxxxxxxx
Telecopier Number: 000-000-0000 President
Attest: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Secretary
XXXXX XXXXXXXX & ASSOCIATES,
A CALIFORNIA CORPORATION
Address: 000 Xxxxxxx Xxxxx By: /s/ L. XxXxx Xxxxxxxx
--------------------------------
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 L. XxXxx Xxxxxxxx
Telecopier Number: (000) 000-00000 President
Attest: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Secretary
[SIGNATURE PAGE TO THE SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT]
ON SITE TECHNOLOGY, INC.,
A GEORGIA CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ J. Xxxxxxx Xxxxxxxxx
--------------------------------
Xxxxxxxx, Xxxxxxx 00000 J. Xxxxxxx Xxxxxxxxx
Telecopier Number: (000) 000-0000 President
Attest: /s/ Xxxx X. Xxxx
----------------------------
Xxxx X. Xxxx
Secretary
XXXX USA, INC.,
A DELAWARE CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Xxxxxxxx, Xxxxxxx 00000 Xxxxxxx X. Xxxxxxxxxx
Telecopier Number: 000-000-0000 President
Attest: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
[SIGNATURE PAGE TO THE SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT]
LAW ENVIRONMENTAL CONSULTANTS, INC.
FORMERLY LAW ASSOCIATES, INC.,
A GEORGIA CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxxx, Xxxxxxx 00000 Xxxxxxx X. Xxxxxxxx
Telecopier Number: 000-000-0000 Chief Financial Officer and
Treasurer
Attest: /s/ Xxxx X. Xxxx
----------------------------
Xxxx X. Xxxx
Secretary
LAW ENVIRONMENTAL N.C., INC.,
A NORTH CAROLINA CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ J. Xxxxxxx Xxxxxxxxx
--------------------------------
Xxxxxxxx, Xxxxxxx 00000 J. Xxxxxxx Xxxxxxxxx
Telecopier Number: 000-000-0000 President
Attest: /s/ Xxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxx X. Xxxxx
Secretary
[SIGNATURE PAGE TO THE SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT]
LAW/ENVIRONMENTAL INC., A TEXAS
CORPORATION
Address: 000 Xxxx Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxx Xxxxxx
--------------------------------
Xxxxxxxx, Xxxxxxx 00000 Name: Xxxxxxx Xxxxx Xxxxxx
Telecopier Number: 000-000-0000 Title: President
Attest: /s/ Xxxx X. Xxxx
----------------------------
Name: Xxxx X. Xxxx
Title: Secretary
[SIGNATURE PAGE TO THE SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT]
SUNTRUST BANK, ATLANTA
INDIVIDUALLY AND AS AGENT
By: /s/ J. Xxxxxxxxxxx Xxxxxxx
--------------------------------
J. Xxxxxxxxxxx Xxxxxxx
First Vice President
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
(Title) XXXXXXX X. XXXXXX
VICE PRESIDENT
NATIONAL BANK OF CANADA
Address: By:________________________________
000 Xxxxxxxx Xxxxxxx, XX Name:
Suite 800 Title:
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
By:________________________________
Name:
Title:
[SIGNATURE PAGE TO THE SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT]
SUNTRUST BANK, ATLANTA
INDIVIDUALLY AND AS AGENT
By:________________________________
J. Xxxxxxxxxxx Xxxxxxx
First Vice President
By_________________________________
(Title)
NATIONAL BANK OF CANADA
Address: By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
000 Xxxxxxxx Xxxxxxx, XX Name:
Suite 800 Title: VP
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
By: /S/ Xxxxxx X. Xxxxx
-------------------------------
Name:
Title: VP/Mgr
[SIGNATURE PAGE TO THE SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT]
